Anti-Corruption Bureau and Caesar's Wife

(By  V. Ramkumar,  Former  Judge , High  Court  of  Kerala)

After going through the verdict in  Vigilance and Anti-Corruption Bureau Directorate v. Neyyattinkara  P. Nagaraj & Ors.(2015 (4) KLT 640)whichhad virtually de-throned a Cabinet Minister of the State, I am penning down the legalities and illegalities of the said verdict which, in my opinion, could have been rendered after deeper study and research. Some of the findings recorded in favour of the writ petitioner (Directorate of Vigilance and Anti-Corruption Bureau) and some of the findings recorded against the writ petitioner, are in my view, wrong.

2. The finding in paras 10 to 16 of the verdict in question that the Factual Report submitted by the Investigating Officer (“I.O.” for short) in this case is part of the Case Diary (‘C.D.' for short) and, therefore, the Court is entitled to call for and peruse the same during the stage of inquiry or trial, is absolutely correct. This is because the Factual Report in this case was prepared after the registration of the F.I.R. and conclusion of the investigation. The Vigilance Manual also contemplates a Factual Report, inter alia, before the registration of the F.I.R. but after the conclusion of the preliminary enquiry/quick verification. This Factual Report prepared after the preliminary enquiry/quick verification but prior to the commencement of investigation cannot form part of the C.D. But even if the Factual Report, in this case, forms part of the C.D. and can, therefore, be called for and perused by the Court under Section 172(2) Cr.P.C., when the Court even at the stage of trial cannot use the contents of such Factual Report as evidence, is it permissible for the Court at the inquiry stage to rely on and reveal the contents of the Factual Report, is a question which has not been addressed by the learned Judge. So is the position regarding the Scrutiny Report of the Director in the Vigilance set-up which is on similar lines with that of the Central Bureau of Investigation (“CBI” for short).

3. I cannot endorse the reasoning given in paras 18 to 23 of the verdict in question for holding that Para 59 (ii) of the Vigilance Manual (which says that a Vigilance case should be registered within 10 days of getting orders from the Directorate) is not contrary to the Cr.P.C. To substantiate this point the learned Judge has relied on Section 158 Cr.P.C. and G.O.Rt. No. 4/2002/dated 3.1.2002 to hold that the Director of Vigilance And Anti-Corruption Bureau (“VACB” for short) should be deemed to be a superior police officer appointed under Section 158(1) Cr.P.C. and such superior officer has the power under Section 158(2) Cr.P.C. to give appropriate instructions to the I.O. This view is, according to me, wrong. Even if by the State Government approving the Vigilance Manual as per the above G.O., the Director could deemed to be a superior police officer appointed under Section 158(1) Cr.P.C., his power under Section 158(1) Cr.P.C. is only to submit before Court the report of the Officer-in-charge of the Police Station ( “SHO” for short) under Section 157(1) Cr.P.C.,  provided the State Government so directs. The Vigilance Manual or the G.O. referred to above do not direct that the report of the SHO under Section 157 (1) Cr.P.C. shall be submitted to the Court through the Director. Under Section 158(1) Cr.P.C., the only role given to the superior police officer is to submit the above report before the Court, and that too if the State Government so directs. Then the further role given to the superior police officer under Section 158(2) Cr.P.C. is not to give instructions to the SHO throughout the stage of investigation as has been assumed by the learned Judge. The instructions envisaged by Section 158(2) Cr.P.C. is only on matters touching the question whether the SHO should or should not enter on an investigation under Section 157(1) Cr.P.C. and the superior police officer has to record on the report his instructions, if any, so given and transmit the report without any delay to the Court. When the superior police officer has not been directed by the Government to transmit the report of the SHO to the Court, the question of such superior officer giving instructions to the SHO also does not arise. This is not a case where the superior police officer had taken over the investigation. Hence the power, if any, of the Director to give instructions to the I.O.during and after investigation, has to be located elsewhere. In any view of the matter, after the decision of the Constitution Bench of the Supreme Court in Lalita Kumari v. Government of U.P. & Ors.  (2013 (4) KLT 632 (SC) = (2014) 2 SCC 1), when the information received by the SHO is regarding the commission of a cognizable offence, then the SHO has no other alternative except to register an F.I.R. (save in those enumerated cases where he may conduct a preliminary enquiry. Of course, with utmost respect, I wish to say that I have my own reservations about the ruling in Lalita Kumari to the effect that the scope of preliminary enquiry is only to find out whether a cognizable offence is alleged in the information and that the veracity or otherwise of the information is foreign to the scope of preliminary enquiry. Corruption cases is one of the enumerated category of cases in which a preliminary enquiry is justified. It is pertinent to note that all the offences under the P.C. Act, 1988 are cognizable offences and if so in a case where the information given is regarding the commission of an offence under the P.C. Act, no preliminary enquiry may be necessary. The Constitution Bench having approved P.Sirajuddin v. State of Madras ((1970) 1 SCC 595) which in turn was apprehensive of the incalculable harm that could cause to a public servant and to the department he belonged unless prima facie evidence of guilt was made out before registering an F.I.R., was oblivious of the purpose behind the preliminary enquiry. Disgruntled elements who couldn’t curry favours from a public servant will be too willing to bolster up false cases against the public servant. The position of doctors will be still worse).Thus, Para 59(ii) of the Vigilance Manual which insists on the order of the Directorate for registering the F.I.R. is contrary to Section 154(1) Cr.P.C. as judicially interpreted in Lalita Kumari.

4. In paras 25 and 26 of the verdict in question, after extracting paras 89 and 120.6 of Lalita Kumari (supra) the learned Judge has concluded as follows:-

It was categorically held by the Constitution Bench that the provisions of the C.B.I. Manual overrides the provisions of the Code of Criminal Procedure.

I did not find such a proposition of law laid down in Lalitha Kumari. In para 89 of Lalita Kumari itself what is observed is that the C.B.I. Manual is not a statute, but only a set of administrative instructions for the internal guidance of the C.B.I. officers and it cannot supersede the Cr.P.C. The further observation in Lalita Kumari that the C.B.I. is constituted under the Delhi Special Police Establishment Act, 1946, (‘DSPE Act” for short) and derives its power to investigate under that Act and the powers of the C.B.I. under the DSPE Act cannot be equated with the powers of the regular State Police under the Cr.P.C., does not mean that the C.B.I. Manual overrides the Cr.P.C. This is particularly so, since neither the DSPE Act nor the P.C. Act, 1988, prescribes a different procedure for investigation by the police and, therefore, by virtue of Section 4(2) Cr.P.C., it is the Cr.P.C. which will apply regarding the procedure for investigation. In para 4 of M.C. Mehta v. Union of India (2008 (2) KLT Suppl. 628 (SC) = (2007) 1 SCC 110 a three Judge Bench of the Apex Court has categorically held that the C.B.I. Manual is subject to the provisions of Cr.P.C. and in case of a conflict between the two, the Cr.P.C. shall prevail.

5. Para 72(1) of the Vigilance Manual reads as follows:-

“72(1). After completion of the investigation a report giving the facts, evidence and circumstances in each case (both for and against the prosecution) shall be forwarded by the Deputy Superintendent of Police to the Superintendent of Police concerned, who will forward the same along with his Forwarding Endorsement to the Director, through the IGP/DIP of Police concerned for further transmission to Government (In cases personally investigated by the Superintendent of Police or other senior officers, the Factual Report will be prepared by them.). The final decision on a Factual Report either to prosecute an accused or subject him/them to an enquiry by Vigilance Tribunal or otherwise will be taken at the Directorate after assessing the quality and quantum of evidence”.

After extracting Section 173(3) Cr.P.C. in para 27, the learned Judge observes in para 28 that the Superior Police Officer appointed under Section 158(1) Cr.P.C. has got the power to scrutinise the final report in case of a general or special order to that effect. In para 29 of the verdict in question the learned Judge specifically held that there is no conflict with regard to the power of the Director under para 72(1) [wrongly mentioned as Section 72(1)] of the Vigilance Manual and Section 173 (3) Cr.P.C. But the learned Judge had already held in para 24 that the Factual Report submitted by the I.O. is not the final report under Section 173(2) Cr.P.C. If the Factual Report is not the final report and if what the Director, as superior Police Officer, can scrutinise under Section 173(3) Cr.P.C. is only the final report and not the Factual Report, then there is an apparent conflict between Para 72(1) of the Vigilance Manual and Section 173(3) Cr.P.C. In para 29 itself the learned Judge has found that the Director has not gone through the final report in this case. If as a matter of fact, there is no conflict between Para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC, then there is no dispute that as per para 72(1) of the Manual the final decision on a Factual Report either to prosecute the accused or to subject him to an enquiry by the Vigilance Tribunal or otherwise, will have to be taken at the Directorate and not by the I.O. That was precisely what the Director did in this case. If, as found by the learned Judge, there is no conflict between Para 72 (1) of the Vigilance Manual and Section 173(3) Cr.P.C., then what the Director did, namely, directing the I.O. to file the final report before Court after considering the foregoing discussion in the Scrutiny Report of the Director would be perfectly valid. But the learned Judge has contradicted himself by saying in Para 31 of the verdict that the Director has virtually substituted the opinion of the I.O. with his opinion in the final report. In the last paragraph the learned Judge has remarked that as per para 72(1) of the Vigilance Manual and Section 158(2) Cr.P.C. the Director can give timely directions to the I.O. only during investigation and not after that. Accordingly the learned Judge concluded that the Special Judge was right in ordering further investigation which ought to have been ordered by the Director instead of directing the I.O. to file a final report in tune with the scrutiny report.

6. I am afraid that the learned Judge has missed the scope and amplitude of Sections 158 and 173(3) Cr.P.C. and Para 72(1) of the Vigilance Manual. As already stated, the purpose of appointing a superior police officer under Section 158(1) is for the limited purpose of submitting before Court the report of the SHO under Section 157(1) and his power to give instructions to the I.O is not available to him throughout the stage of investigation. His role ends with the submission of the report with the instructions, if any, given by him and recorded on the report. Even this power he can exercise only if he is directed to do so by the State Government. Likewise, if such a superior police officer has been appointed under Section 158(1) Cr. P.C., the final report under Section 173(2) Cr.P.C. also can be filed through him before Court and that again if the State Government so directs. (See Section 173(3) Cr.P.C.). Para 72(1) of the Vigilance Manual serves a totally different purpose. Although the Factual Report by the I.O. is not the final report under Section 173(2) Cr.P.C., it is a report submitted after the completion of investigation by the I.O. It should not only contain the incriminating evidence and circumstances but also the exculpating circumstances (i.e. both for and against the prosecution). If it were to precede a refer report or a closure report it need only contain the circumstances against the prosecution and if it were to precede a charge-sheet, then it need only contain the incriminating circumstances. Para 72(1) further says that the final decision on the Factual Report either to prosecute the accused or to subject him only to an enquiry before the Vigilance Tribunal will be taken at the Directorate after assessingthe quality and quantum of evidence. This is the organisational set up of the Vigilance Department which is on similar lines with that of the C.B.I. Even if the Director were to be treated as a superior police officer within the meaning of Section 158 Cr.P.C., in the absence of a Government direction to the Director to file the report under Section 158(1) or Section 173(3) Cr.P.C., he cannot submit both the said reports. The SHO or the I.O. himself should file those reports. The power under Section 36 Cr.P.C. may, perhaps, cloth the Director to oversee the investigation by the I.O. and issue appropriate directions or guidelines to the I.O. The decision of the Apex Court in R. Sarala v. T.V. Velu  (2000 (2) KLT SN 34 (C.No. 40) SC =(2000) 4 SCC 459also indicates that it is not the Public Prosecutor but the Superior Police Officer who has to advise the I.O. in the matter of investigation and the role of the Public Prosecutor is inside the Court. InReghuchandrabal v. State of Kerala (2009 (4) KLT 245), Mr. Justice M. Sasidharan Nambiar held that the Factual Report submitted by the I.O. is not the final report and the Government on receipt of the Factual Report through the Director of Vigilance, were entitled to disagree with the opinion of the I.O. to file a refer report and that eventhough what the Home Minister ordered in that case was re-investigation, it was rightly clarified by the Director of Vigilance that the proper course open was to conduct further investigation under Section 173(8) Cr.P.C. The direction by the Director of Vigilance to the I.O. to conduct further investigation, was accordingly upheld by the High Court of Kerala. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke  (2015 (1) KLT SN 51 (C.No. 68) SC = (2015) 3 SCC 123), the situation was almost identical except that in the place of the Director of Vigilance it was the Director General of Vigilance in the State of Maharashtra where also there is a similar set-up in the Vigilance Department. In that case the I.O. submitted a Factual Report proposing to prosecute A1 (a Sub Divisional Magistrate) and A2 (Sheristadar of the SDM) for offences under Sections 7 and 13(1)(d) of the P.C. Act. In the case of A1, the Director General of Vigilance disagreed with the I.O. and held that A1 could not be prosecuted since there was only evidence of acceptance of bribe and there was no evidence of demand of bribe and that the authenticity of the electronic evidence (compact disc) was not proved according to law. The Vigilance Special Judge agreeing with the view of the Director General of Vigilance, accepted the closure report as against A1. At the instance of the de-facto complainant the Bombay High Court set aside the order of the Special Judge dropping the proceedings against A1 and directed that A1 was also to be prosecuted. In further appeal before the Apex Court, the view of the Special Judge was preferred by the Supreme Court to that of the High Court. If these two decisions were adverted to and followed by the learned Judge, he could not have found fault with the Director who had faithfully adhered to Para 72(1) of the Vigilance Manual without in any manner exceeding his limits. There is not even a whisper of the above binding decisions in the verdict in question, in spite of the fact that those citations were specifically pleaded in the Writ Petition (a copy of which was got down and perused by me). If according to the learned Judge there is no conflict between Para 72(1) of the Vigilance Manual and the Cr.P.C. and if as per Para 72(1) and as per the aforesaid binding precedents, the Director of Vigilance was entitled to take a decision as to whether the accused was to be prosecuted or not after assessing the quality and quantum of evidence and after studying the law on the point, the criticism made by the learned Judge in paras 29 and 31 against the Director, Mr. Vinson M. Paul (known for his unquestionable integrity and impartiality) even without hearing him, that the Director does not have unbridled power to direct the I.O. to file a final report in a particular manner, was uncalled for, being opposed to Para 72 (1) of the Vigilance Manual and the binding judicial verdicts adverted to above. It is significant to note that in the Scrutiny Report the operative portion of which has been extracted in para 5 of the reported decision, the Director has not directed the I.O. to file a refer charge or closure report. He has only directed the I.O. to file the final report before Court after considering the foregoing discussions in the Scrutiny Report. The I.O. evidently on being convinced about the absence of the necessary ingredient in the offences alleged, was, without demur filing a closure report for dropping the proceedings. One fails to see as to how the learned Judge could refuse to advert to the binding judicial precedents covering the field and embark upon a different interpretative exercise brushing aside the aforesaid precedents. If the rulings cited by the writ petitioner were to be followed, then whatever the Director of Vigilance did was perfectly legal and in accord with Para 72(1) of the Vigilance Manual. Of course, the final opinion formed by the I.O. either to prosecute or not to prosecute the accused may not be binding on the Court. Depending on the materials collected by the I.O. during the investigation, the Court has the right to differ from the final opinion reached by the I.O. and either drop the proceedings or take cognizance of the offences, if any, revealed or direct a further investigation. (Vide M/s. India Carat Pvt. Ltd. v. State of Karnataka  (AIR 1989 SC 885 (3 Judges); Gangadhar Janardan Mhatre v. State of Maharashtra  (2004 (3) KLT SN 77 (C.No.107) SC =(2004) 7 SCC 768); Minur v. State of Bihar (AIR 2006 SC 1937); Aleque Padamsee v. Union of India  (2007 (3) KLT 1028 (SC) =(2007) 6 SCC 171)).

7. What was the great hurry in handing down the verdict without adequate study or research and topple the Vigilance set-up in the State which has been in vogue for more than two decades? The force which presumably impelled the Vigilance Directorate to approach the High Court consequent on the Special Judge finding fault with the Director in acting according to Para 72(1) of the Manual, has been repressed with double vigour by the verdict in question. The organisational framework and equilibrium of the Vigilance Directorate stands dislocated and the operational freedom of the Director under the Vigilance Manual stands curtailed on a reasoning which unfortunately does not coincide with the law as judicially settled.

8. In para 39 of the verdict in question destroying the homogeneity of the judgment we find the following observation:-

“39. I am reminded of the Shakespearian saying that ‘Caesar’s wife must be above suspicion’ . The fundamental principle that justice is not only done but it should appear that it is done, is applicable not to the judiciary alone; whereas, it is equally applicable to the other two pillars of the State also. In a case like this, it is quite natural that the common man may entertain a feeling that there cannot be a proper investigation by a State Machinery when the accused, against whom fingers are pointed out, is continuing as a Minister.”

Thereafter, the learned Judge left the question to the conscience of the accused. The innuent message is loud and clear. While it is unfortunate that in this country the media presumes every person accused of an offence to be guilty, a court of justice should be free from any such predilection. I refrain from making any comment on the legality, morality or propriety of the above observation made in a Writ Petition filed by the Directorate of Vigilance and Anti-Corruption Bureau. My present objection is regarding the authorship of the statement attributed to Shakespeare that Caesar’s wife must be above suspicion. As far as I could gather, William Shakespeare never made any such statement, nor did he doubt the nuptial fidelity of Pompeia. The statement comes from Plutarch’s account of Julius Caesar’s justification for his decision to divorce his wife Pompeia consequent on the scandal which was spread pursuant to the detection of the libertine Publius Clodius (who was in love with Pompeia) in the house in which the women of Caesar’s household were celebrating a festival.

9. The Judge who rendered the verdict in question is one of my favourites. My endeavour through these articles is not to target any Judge or Advocate who constitute two sides of the same coin in the dispensation of justice. My concern is for the subordinate judiciary the members of which may be tempted to follow a wrong judicial verdict as a binding precedent unless adequately educated. If my articles help to enlighten both the Bench and the Bar and clear any lingering doubts, then my mission will be fulfilled.

N. J. C.: Regulations  should  be  on "Removal"
Rather  than "Appointments"

(By Jamsheed Hafiz, Advocate, High Court of Kerala, Ernakulam)

The official watchdog of the “Basic Structure of Constitution” has again brought the over enthusiastic legislature on its track by its judgment delivered on October 15, striking down the National Judicial Commissions Act. Time and again the official regulator reminds the Parliamentarians to enact laws without disturbing the Basic Structure of the Constitution. Though there are unmerited interpretations that the judiciary again does not permit legislature or executive to poke their nose to its arbitrary appointments made by the Collegiums, it is time to think of the constitutional virtues and the enormity of powers granted by the Constitution to the Judiciary, Executive and Legislatures.

Democracy is a system in which three luxury compartments, Judiciary, Executive and Legislatures, moves on a track called Constitution. The journey designed by the people and for the people, through the track is for the well being of its citizens and to develop a society abiding the laws enacted by the Parliament. If the compartments with executives are managing the day to day administration of the society, the compartments with legislatures supplement them by enacting laws for their better administration. The third compartment of Judiciary with its members would always be regulating the other two compartments itself from derailing or regulating to keep moving on the track without deviating from its track of Basic Structure of Constitution. When the admission of members to the compartments of “Executives” and “Legislatures” are directly or indirectly by the people, the admission of members to the Compartment of “Judiciary” is by the President in consultation with the “such judges of the Supreme Court and High Courts” (Art.l24(2) of the Constitution) which itself is the aphorism in “Independence of Judiciary”.

Out of all the bureaucrats and public servants, the position of a Judge in High Court or Supreme Court would be the most difficult job in the process of decision making. When all the other bureaucrats and public servants would get a chance to take an opinion on consultation with colleagues or experts, the Judges who are constrained to decide more issues in a day would conclude their decision by “In My Opinion”, to which they enjoy absolute immunity. Any practicing lawyer would know that no judge can be well versed in all the laws enacted by the Parliament and what he could expect is an application of a sound legal principles on the facts of his case based on the available materials placed before him. The years of experience in life and law, together with the experience in the cases appeared by them are the factors which would be moulding and shaping the conclusion “In My opinion”. It is also desirable that “In My Opinion”, should to be free of any caste, religious or any political interest. If it is this “In My Opinion”, that matters for the legislature and executives, then it is high time that they realise the fact that the appointments with their concurrence would not alone produce a better “In My Opinion”.

The framers of the Constitution specifically excluded the hands of executive and legislature from the appointments of Judges in order to give a true colour to the independence of Judiciary. The Second Judges case (Supreme Court Advocates On-Record Association and Anr. v. Union of India (AIR 1994 SC 268), a nine Judge Bench of the Supreme Court, speaking through Lordship Justice J.S. Verma, Majority View, discussed in detail about the Independence of Judiciary and held that the appointments of Judges to the High Court and Supreme Court contemplated by the Constitution specifically excluded the hands of Executive and Legislature inorder to have a true Independence of Judiciary and gave birth to the system of Collegium. Leaving all the legal and technical aspect of the above discussion and a mere logical analysis to the above issue, it could be understood that the members of Higher Judicial Service would alone be able to pick out better legal minds from its Judicial Officers and practicing lawyers, compared to the administrators and legislatures. When a legal acumen of a law graduate is too far below the legal acumen of a practicing lawyer, the wherewithal of Executive or Legislature in the process of appointment is contemptible. Even after the Second Judges case, the Former President of India, K.R. Narayanan addressed a Special Reference to the Chief Justice of India as to the concurrence and procedure to be followed on if there are divergent opinion among the collegiums and whether the opinion of Chief Justice would alone be considered in such cases (one out of Nine queries by the Former President of India). The Supreme Court again constituted a co-equal bench, which clarified the above doubts of the President of India by way of its Judgment reported in AIR 1999 SC 1 (President of India v. Special Reference No.l of 1998), which clearly explained the decision of the “Second Judges case” by Nine Judge Bench which was followed and affirmed by the co-equal bench.

Now if still, “In My Opinion”, matters for the Legislatures and Executive, it is high time they realise the fact that the independence of Judiciary is not absolute in all respect. It may be true that the independence of Judiciary is absolute in the process of selection of Judges but not absolute in case of removal. Constitution provides that a Judge may desire to retire himself by writing under his hand addressed to the President of India or by any process contemplated by Article 124(4) of the Constitution (2nd Proviso) of Article 124(2)). Article 124(4) of the Constitution says that a Judge could be removed from the office in case of proven misbehaviour or incapacity. Article 125(5) further gives a power to the legislature to promulgate laws for “the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a judge” under Clause (4) of Article 124.

Then it is time to ask the above over enthusiastic legislators how far did you exploited above power given to you under Articles 124 (4) and (5) of the Constitution? There are more than hundreds of allegations and complaints filed before the President of India, Chief Justice of Supreme Court and High Courts about the misbehaviour and incapacity of the Judges appointed by the Collegium. How many such complaints were redressed by the legislatures or atleast enquired into by them?. The allegations of corruption would stand in top among such complaints, equal in par with the delay in serving the copy of the Judgments to the clients. Analyzing Article 124(4) and (5) it is understood that in case of such complaints, it is not the duty of the Collegium alone to initiate appropriate investigation to find out the truth. How many impeachments were conducted by the Parliament for the last 68 years after the independence. Is it because there are no complaints against the Judicial Members? If the answer is yes”, then why do you want to disturb the present selection process? If the answer is “No”, then what actions were initiated by you upon the powers granted to you by the Constitution for proving such incapacity or misbehaviour? If the process of impeachment was used sixty one times in United States, how many times was in it invoked in India.

There is no point in bringing a National Judicial Commission for the appointment of Judges with your knowledge and concurrence when you are still sleeping over the powers granted to you by the Constitution. Because even appointments are made in your concurrence and if the best ones are selected to the post by the commission designed by you, there can no assurance that they will not misbehave in future or that they will incapacitate themselves. In majority of the cases where a lawyer from bar is offered a post in Higher Judiciary, the lawyer would be compromising his personal income, certainly for the commitment towards the society and the patriotism in him. But at times he may witness his colleagues with allegations of incapability and misbehaviour stepping over him for the reasons of incompetence and slothfulness of the Legislatures to enact set of laws for speedy remedy of investigation and proof of the misbehaviour or incapacity of a judge. Atleast to safeguard and keep the said patriotism in those Judges, it is high time that the legislature wake up from you deep slumber and raise to your feet and promulgate laws for the speedy enquiry and proof of such allegation so as to free the judiciary from such stains.

It is high time that the over enthusiastic Legislatures wake up from their deep slumber and realise the powers granted to you by the Constitution and start keeping an eye on the functioning of the judiciary by redressing the complaints of misbehaviour and incapacity of the Judicial members, by promulgating effective speedy remedies to the people, rather than attempting to intrude themselves to the appointment of Judicial Officers, waning the colours of “Independent Judiciary”.

In My View, George v. State of Kerala (2015 (3) KLT 219)
Does Not Lay Down The Correct Law

(By V. Ramkumar, Former Judge , High Court of Kerala)

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).

2. The case of the prosecution was that on 23.1.1990 and on 15.1.1991 the accused/appellant while working as a U.D.Clerk in the aforesaid office had misappropriated a total amount of `4080/- by committing criminal breach of trust, using forged documents and by falsification of accounts.

3. The accused was found guilty of all the offences charged and appropriate sentence was also imposed on him by the Special Judge. It was the said conviction which was assailed by the accused in the appeal filed before the Hon’ble High Court of Kerala.

4. Accepting the arguments of the accused/appellant the learned Judge, as far as I could comprehend, held as follows:-

i) The prosecution case is not legally sustainable in view of the bar of limitation in taking cognizance of some of the offences (Section 465 and 471 I.P.C.) and also for the reason that the trial court did not exercise its power of condoning the delay under Section 473 Cr.P.C. before taking cognizance. (Judgment – para 17).

ii) The prosecution should fail for want of prosecution sanction under Section 197 Cr.P.C. in relation to the offences under the I.P.C., namely, Sections 409, 465, 471 and 477-A because the power given to the Director of Employment to remove the appellant from his office is only as an agent or delegate of the Government and therefore the appellant must be deemed to be removable only by or with the sanction of the Government. (Judgment – paras 24,25 and 27)

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 – paras. 24,25 and 27).

iv) The decision in George v. State of Kerala (2004 (2) KLT 369)in the Writ Petition filed by the appellant challenging the want of prosecution sanction under S.197 Cr.P.C., has been rendered disregarding the legal and constitutional provisions and is without jurisdiction and a nullity besides being per incurium and is therefore, not binding. (Judgment – paras 20,21,24,25 and 26).

v) The inordinate delay in the investigation and the illegality in the investigation coupled with the rigmarole of trial have violated the appellants’ fundamental right to get a fair trial guaranteed by Article 21 of the Constitution of India. (Judgment – paras 28 and 29).

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.

MY COMMENTS

5. The bar of limitation alleged. The bar of limitation and that too only for offences punishable with imprisonment upto 3 years, was introduced for the first time only in the present Cr.P.C. None of the earlier Codes of Criminal Procedure contained any such provision. The general rule of criminal justice is that “ a crime never dies”. This is reflected in the maxim “ nullum tempus aut locus occurrit regi” (Lapse of time is no bar to the Crown in proceeding against offenders). This is because a criminal offence is considered as a wrong against the State and the society eventhough it has been committed against an individual. It is by way of an exception to the above rule that the law of limitation was, for the first time, introduced in the present Cr.P.C. but only for relatively minor offences. The justification is that no person should be kept under continuous apprehension that he can be prosecuted at “any time” for “any crime” irrespective of the nature or seriousness of the offence. (Vide Japani Sahoo v. Chandrasekhar Mohanty (2007 (3) KLT 760 (SC) = (2007) l7 SCC 394 = AIR 2007 SC 2762).

In the case on hand, the offences with which the accused/appellant was charged, were Section 409 I.P.C. (punishable with imprisonment for life or imprisonment for 10 years and fine); Section 465 I.P.C. (punishable with imprisonment upto 2 years); Section 471 I.P.C. (punishable with imprisonment upto 2 years) and Section 477-A I.P.C. (punishable with imprisonment for 7 years) and Section 13(1)(c) read with Section 13(2) of the P.C. Act (punishable at the relevant time with imprisonment upto 7 years) - By vurtue of sub-s. (3) of S. 468 Cr.P.C. the period of limitation, in relation to offences which may be tried together (as in this case), is to be determined with reference to the offence which is punishable with the most severe punishment. In the present case, the offence under Section 409 I.P.C. is the one which is punishable with the most severe punishment which is imprisonment for life or imprisonment for 10 years and fine. Under Section 468 Cr.P.C. read with Section 469 Cr.P.C. the maximum period of limitation is only 3 years from the date of commission of the offence for offences punishable with imprisonment not exceeding 3 years. If so, by virtue of the inclusion of the offence under Section 409 I.P.C. which is punishable with the most severe punishment far exceeding 3 years, there cannot be any limitation for any of the offences which are tried jointly with the offence under Section 409 I.P.C. (Vide State of H.P. v. Tara Dutt (AIR 2000 SC 297); Radhakrishnan P.R. & Anr. v. State of Kerala & Anr. – 2012 (3) KLT 88; Rameshwar v. Rajeshwar Prasad Sahu – 2010 Crl. L.J. 361; Bhart Lal v. Top Singh (1995 Crl. L.J. 3545); Harman Singh v. Everest Construction Co. (2004 Crl. L.J. 4178); Sri. Balaji Traders v. State (1990 Crl. LJ 332); Raman Gowda v. The Registrar (Vigilance), High Court of Karnataka (2006 Crl. L.J. 1839). What the Court has to examine is the nature of the offence which the accused was charged with and not the nature of the offence for which the accused is eventually convicted. (Vide State of H.P. v. Tara Dutt (AIR 2000 SC 297).This is something analogous to Section 155(4) Cr.P.C. where a case involving non-cognizable offences along with at least one cognizable offence, is to be treated as a cognizable case for the purpose of investigation. In fact, it was after observing correctly towards the end of paragraph 8 of the verdict in question to the effect that if the offence alleged against the accused is punishable with imprisonment exceeding 3 years, there is no period of limitation for the prosecution, that the learned Judge fell into an error by concluding in paragraph 17 as under:-

 “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.

6. With regard to the offences under Sections 409, 465, 471 and 477A I.P.C., the learned Judge has concluded in paragraph 27 of the verdict in question that absence of a prosecution sanction under Section 197 Cr.P.C. is fatal. Admittedly, the accused /appellant is a public servant. The question of obtaining prosecution sanction will arise only if such public servant of the nature referred to in Section 197(1) Cr.P.C. committed the offences while acting or purporting to act in the discharge of his official duty. There is a whole line of precedential authority to the effect that committing the aforementioned offences cannot constitute acts done in the performance of the official duty of a public servant. In State of H.P. v. M.P.Gupta 2004 (1) KLT SN 43 (C.No. 56) SC = (2004) 2 SCC 349 = AIR 2004 SC 730, it was held by the Apex Court that it was no part of the official duty of a public servant to commit offences punishable under Section 467, 468 and 471 IPC and, therefore, there was no need for any sanction to prosecute the public servant. Again it has been held that sanction for prosecuting a public servant for offences punishable under Sections 409 and 468 I.P.C. is not required since those offences cannot be committed in discharge of official duty. (Vide State of U.P. v. Paras Nath Singh (2009 (3) KLT Suppl. 999 (SC) = (2009) 6 SCC 372) – 3 Judges; Prakash Singh Badal v. State of Punjab (2007) 1 SCC 1 = AIR 2007 SC 1275; Bholu Ram v. State of Punjab (2008 (4) KLT SN 51 (C.No. 47) SC = (2008) 9 SCC 140).If so, no prosecution sanction under Section 197 Cr.P.C. is required to be obtained for prosecuting a public servant for the aforementioned offences. (Here the humble personal view of this author is that it is only when the public servant exceeds his lawful authority and commits an offence that the question of prosecuting him for such offences will arise and it is only for such prosecution that the sanction of the authority competent to grant sanction, is required. VidePadmarajan C.V. v. Government of Kerala & Ors. 2009 (1) KLT Suppl. 1 = ILR 2009 (1) Ker.36 – para 12.But personal views of mortals like the author should definitely yield to the authority of binding judicial precedents, particularly of the Apex Court by the force of Article 141 of the Constitution of India).If so, the absence of sanction to prosecute the accused for the I.P.C. offences, was not fatal.

The accused public servant whether removable from his office by or with the
sanction of the Government ?

7. If sanction to prosecute the appellant under Section 197 Cr.P.C. with regard to the I.P.C. offences is not necessary at all, then the further question as to whether he is removable from office by or with the sanction of the Government, is purely academic. But with regard to the offence under Section 13(1)(c) of the P.C. Act, this question is relevant since clause (b) of Setion 19(1) P.C. Act is somewhat pari materia with clause (b) of Section 197(1) Cr.P.C. The verdict in question has devoted much space for evaluating the argument of the accused in this behalf. In paragraph 24 (at page 237 of the KLT) of the judgment, the learned Judge has found that the appointing authority of the appellant who is a Government servant, is the Director of Employment. The discussion proceeds to hold that as per the delegation made under Rule 9 of the Kerala Civil Services (Classification, Control and Appeal) Rules falling under Section 3 of the Public Services Act which in turn is subservient to Article 309 of the Constitution of India, the Director of Employment is the appointing authority of the appellant. It is further found that the accused is removable from his office also by the said Director. It was the very same Director who issued Ext. P64 order of sanction under Section 19 of the P.C. Act. The Director who issued the sanction order was examined as PW 20 also. If so, can it be said that the appellant is removable from office by the Government or with the sanction of the Government? Who else, other than the Director, is the authority competent to grant the prosecution sanction under Section 19(1)(b) of P.C. Act.? When the appellant is not removable from office by or with the sanction of the Government, but instead is removable from office only by the Director of Employment, there was no need for prosecution sanction under Section 197 Cr.P.C. Both Section 197 Cr.P.C. as well as Section 19 of the P.C. Act, draw a line between public servants of various classes. When some lower authority is by law, or rule or order, empowered to remove a public servant, then such public servant cannot be said to be one removable by or with the sanction of the Government. (Vide Nirendra Natha Sarkar v. State of Assam (1985) Crl. LJ . Noc 21 (Gau.) ; Sakuntala Bai v. Venkatakrishna Reddy– 1952 Crl. L.J. 1295 (Mad.); Pichai Pillai v. Balasundara Mudaly (AIR 1935 Mad. 442= 58 Mad. 787).

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. v 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 v. Emperor – AIR 1943 F.C. 18while dealing with the Section 197 of the Code of Criminal Procedure, 1898, which corresponds to S.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 v. Balasundara Mudali (AIR 1935 Mad. 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 v. State of Mysore (AIR 1964 SC 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 Cr.P.C. 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 v. 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?

8. In paragraph 24 of the judgment in question reference is made to the submission by the appellants’ counsel that the power under Section 197(1) (b) Cr.P.C. was delegated to the Secretary, Vigilance Department by the Governor under Article 166 of the Constitution of India. No order to that effect appears to have been produced before the Hon’ble High Court. From the aforementioned submission, the learned Judge would straightaway conclude that PW20 (the Director of Employment) was, therefore, not authorised to grant sanction under Section 197 Cr.P.C. as a delegate of the Governor as on the date of Ext. P64 sanction order. The judgment is not clear whether the appellants’ argument was that with the empowerment of the Secretary, Vigilance Department, under Section 197(1)(b) Cr.P.C. by the Governor, the Director of Employment was stripped of his power to grant prosecution sanction. It has already been seen that sanction for prosecuting the appellant under Section 197 Cr.P.C. was not necessary. With regard to the offence under Section 13(1)(c) and punishable under Section 13(2) of the P.C. Act, prosecution sanction has been granted by the Director under Section 19 of the P.C. Act. Since the appellant was not removable from office by or with the sanction of the Government within the meaning of Section 19(1)(b) of the P.C. Act, it was sufficient that the prosecution sanction was granted by the Director as provided under Section 19(1)(c) of P.C. Act.

9. Now, the further question is whether it was the Director of Employment or the Secretary of Vigilance Department, who was competent to grant sanction under Section 19(1) (c) of the P.C. Act. The appellant’s argument that it was the Secretary of Vigilance Department who was the authority competent to grant prosecution sanction under Section 19 of P.C. Act, presumably stems from G.O.(Ms) 169/94/GAD dated 23-4-1994 as per which the Vigilance Department was inter alia invested with the power of issuing orders sanctioning prosecution of a public servant under the Cr.P.C. and the P.C. Act. Corresponding amendment to the duties and functions of the Vigilance Department which is Serial No. XXXVI in the First Schedule to the Rules of Business of the Government of Kerala framed by the Governor under Article 166(2) and (3) of the Constitution of India, was incorporated as Item 8 at page 69 of the said Rules. The above investiture is only with regard to those public servants who are removable by or with the sanction of the Government. In fact, at present it is the Vigilance Secretary and not the Administrative Secretary concerned, who is issuing orders of prosecution sanction both under Section 197 Cr.P.C. and Section 19 of the P.C. Act in relation to public servants who are removable by or with the sanction of the Government. This has nothing to do with the issuance of prosecution sanction under Section 19(1)(c) of the P.C. Act regarding public servants like the appellant who are not liable to be removed from office by or with the sanction of the Government. Hence the prosecution sanction given by the Director of Employment is perfectly valid.

The impact of the Writ Petition and appeal filed by the accused

10. After the Special Judge took cognizance of the aforementioned offences, the accused/appellant filed a Writ Petition (O.P.No. 10181 of 1999) before the Hon’ble High Court of Kerala seeking to quash the F.I.R. on the ground that since he is a public servant not removable from office save by or with the sanction of the Government, sanction to prosecute him under Section 197 Cr.P.C. was a condition precedent for prosecuting him. Mr. Justice J.B. Koshy after a detailed analysis of the legal provisions as well as the case law on the point held that the appointing authority of the accused was the Director of Employment and the accused was liable to be removed from his post also by the same officer under the Civil Services (Classification, Control and Appeal) Rules and, therefore, the accused is not a public servant not removable from his office save by or with the sanction of the Government within the meaning of Section 197 Cr.P.C. Consequently, it was held that Section 197 Cr.P.C. was not attracted so as to warrant a sanction to prosecute the accused under that section. The Writ Petition was dismissed on 21.3.2000. Aggrieved by the decision of the learned Single Judge, the accused/appellant filed a Writ Appeal (W.A.No. 925 of 2000) before the Hon’ble High Court. The Division Bench speaking through Mr. Justice K.A. Abdul Gafoor affirmed the view taken by the learned Single Judge and dismissed the Writ Appeal on 13.2.2004. The decision of the Division Bench has been reported in George v. State of Kerala (2004 (2) KLT 369).

The accused /appellant having assailed the prosecution proceedings against him on the ground of absence of prosecution sanction under Section 197(1)(b) Cr.P.C. and want of proper sanction under Section 19(1)(b) of the P.C.Act and having suffered an adverse verdict at the hands of the Hon’ble Judges who were well versed in service law as well, was estopped from turning round and assailing those verdicts as illegal and passed without jurisdiction and rendered per incurium. Strangely enough, with a view to circumvent the above adverse verdicts, the accused/appellant who contended that the principles of res judicata and constructive res judicata are not applicable to criminal proceedings, placed reliance upon Ashok Leyland’s caseto contend that a jurisdictional question, if wrongly decided, would not attract the principles of res judicata. If, committing the specified offences under the IPC is not part of the official duty of a public servant so as to warrant prosecution sanction under Section 197 Cr.P.C. and if the said provision is not attracted also for the reason that the accused is not removable from his office by or with the sanction of the Government, where is the question of any jurisdictional error in the adverse verdicts suffered by the accused so as to avoid those verdicts?. The attempt made by the accused to place reliance upon the decision of the Constitution Bench in Gullapalli Nageshwara Rao’scase to contend for the position that the Governor through his delegates can also perform such quasi judicial acts, was also wholly misplaced. Granting or refusing prosecution sanction is an administrative act and not a quasi judicial one. Hence the order granting or refusing sanction is a mere executive order. (Vide State of Maharashtra v. P.P. Sharma ((1992) Supp (1) SCC 222); A. Veeraswamy v. Union of India ((1991) 3 SCC 655); State of Maharashtra v. Ishwar Piraji Kalpatri ((1996) 1 SCC 542); T.M. Jacob v. State of Kerala (1999 (2) KLT 161).When the final verdict in the Writ Petition filed by the accused went against him, he thought it convenient to disown the verdict and collaterally attack the same.

Delay affecting the constitutional rights of the Appellant

11. One of the contentions raised and upheld under this head is that as against Section 17(c) of the P.C. Act which mandates that the investigation of the case shall be conducted by a Police Officer of the rank of a Dy.S.P., the investigation was conducted by PWS 27 and 28 both of whom were of the rank of Inspector of Police and no order authorising them to conduct the investigation was produced. According to the appellant besides the above illegality, the long drawn out investigation with unjustifiable delay has affected the right of the appellant to get a fair trial. The aforesaid illegality alleged by the appellant could not have been countenanced in view of the settled legal position that any infirmity in the investigation cannot affect the jurisdiction of the Court to take cognizance of the case and proceed to trial unless the objection in that regard was raised at the earliest opportunity. To put it differently, any defect or illegality in the investigation, however serious, has no direct bearing on the cognizance of the case or its trial. (Vide H.N. Rishbud v. State of Delhi (AIR 1955 SC 196); Mobarik Ali Ahmed v. State of Bombay – (AIR 1957 SC 857); Din Dayal Sharma v. State of U.P. (AIR 1959 SC 831); E.G. Barsay v. State of Bombay (AIR 1961 SC 1762); Munna Lal v. State of U.P. (AIR 1964 SC 28); State of A.P. v. N. Venugopal (AIR 1964 SC 33); M.C. Sulkunte v. State of Mysore (AIR 1971 SC 508); State of A.P. v. P.V. Narayana (AIR 1970 SC 811); Khandu Sonu Dhobi v. State of Maharashtra (AIR 1972 SC 958); A.C.Sharma v. Delhi Administration (AIR 1973 SC 913); Durga Dass v. State of H.P. (AIR 1973 SC 1379); Nanak Chand v. State of H.P (AIR 1974 SC 765). The appellant not only did not raise any objection in this regard at the earliest opportunity but also did not voice his grievance in this regard in the Writ Petition and Writ Appeal filed by him after the Special Judge had taken cognizance of the offence.

12. The appellant who had moved the High Court in the year 1999 and who was assailing the alleged illegality of absence of prosecution sanction until his Writ Appeal was dismissed by the High Court on 13-2-2004, cannot be heard to say that the delay in the trial had infringed his fundamental right of fair or speedy trial. He alone is responsible for the delay, if any.

13. In paragraph 29 of the verdict in question there is an omnibus statement that the oral and documentary evidence do not establish the guilt of the appellant. What exactly is the evidence has not been discussed. There is no re-appreciation of evidence attempted by the Court of first appeal. It is further stated that the evidence, if analysed correctly, would show that the appellant cannot be blamed singly for the shortage of cash found out on inspection The learned Judge does not appear to have been taken through the oral and documentary evidence for a re-appraisal. In such circumstances, the following observation of the Apex Court in State of H.P. v. Tara Dutt (AIR 2000 SC 297) is most apposite:-

“ 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 I.P.C. 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.”

My Conclusion

14. Based on the judicial interpretation given to Section 197 Cr.P.C. and Section 19 of the P.C. Act the following propositions of law can be considered to be well settled:-

(i) Unlike Section 19 of the P.C. Act, Section 197 Cr.P.C. contemplates prosecution sanction only by the State or Central Governments, as the case may be, if the other conditions of the said section are attracted and that too only in the case of a State or Central Government employee (other than a member of the Forces) answering the definition of “public servant”. Under Section 19(1)(c) prosecution sanction is necessary even in the case of a non-Government public servant and such sanction is to be granted by the authority competent to remove such public servant from his office.

(ii) It is no part of the official duty of a public servant to commit offences such as those punishable under Sections 409,467,468, 471 I.P.C. etc and for those offences no prosecution sanction under Section 197 Cr.P.C. is necessary. The “Explanation” incorporated in Section 197 (1) Cr.P.C. has statutorily added to the above list a few more offences involving sexual inpropriety.

(iii) With regard to the other offences under the I.P.C., prosecution sanction under Section 197 Cr.P.C. is necessary even if the public servant has ceased to be such public servant provided the other conditions of Section 197 Cr.P.C. are satisfied. But under Section 19 of the P.C. Act, no sanction is necessary if the public servant is no more occupying the post which he allegedly abused. Similarly, if the public servant at the time of the court taking cognizance, is not holding the post which he allegedly abused but is holding another public office where also he may be a public servant, then also sanction under Section 19 of the P.C. Act is not necessary.

(iv) Prosecution sanction by the State Government under Section 197 Cr.P.C. will be required in the case of a State Government servant only if –

(a) he is a public servant removable from his office either by the State Government or with the sanction of the State Government; AND

(b) (i) he is employed in connection with the affairs of the State; OR

(ii) he was, at the time of commission of the alleged offence, employed in connection with the affairs of the State; AND

(c) the alleged offences were committed by him while acting or purporting to act in the discharge of his official duty.

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. 

E- Is it “Petition Allergy”, “Application Phobia” or “Motion Disgust”?

(By  V. Ramkumar,  Former  Judge , High  Court  of  Kerala)

A learned Judge of the Hon’ble High Court of Kerala has inter alia observed as follows:-

“13. It is noticed that numerous applications are being filed before the High Court and the Sessions Court for enlargement of time for the deposit of fine as the Trial Courts refuse to accept the fine/compensation after the period stipulated by the superior Courts, even after the decision of this Court in Girish v. Muthoot Capital (2007 (1) KLT 16).  It is to be remembered that the default sentence is not punitive, but is only a measure to enforce payment of fine/compensation ordered by the Court.  I make it clear that it is illegal, incorrect and unjust to refuse to permit the convict to deposit the fine amount after the date stipulated by the High Court/Sessions Courton the mere reason that no direction for extension has been granted by the High Court/Sessions Court.”                                                 (emphasis is mine)

(VideSubash Sait v. Sree Gokulam Chits and Finance  (2015 (4) KLT 497).

The question posed by the Judge at the commencement of the order is whether the convict can deposit the fine amount after the time stipulated by the High Court or Sessions Court, without any further direction from the High Court or Sessions Court, so as to avoid the default sentence.

The necessary facts

2.  The applicant before the High Court, was the accused who was  convicted by the Trial Court of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (“ N.I. Act” for short). It is not clear from the reported decision as to whether the sentence imposed by the lower courts consisted of a substantive sentence of imprisonment.  In a criminal revision filed by the convict, a learned Single Judge of the High Court confirmed  the conviction but modified the sentence to one of fine (`1,88,000/-) with a default sentence of simple imprisonment for 3 months.  It was also directed that the fine amount as and when realised should be given to the complainant under Section 357(1) Cr.P.C. The convict was also given the option either to deposit the fine amount before the trial Court or to directly pay the compensation amount to the complainant within six months of the order.  In the event of direct payment, the convict was ordered to produce a memo (voucher) before the trial Court.  The convict did not deposit or pay the amount within the time granted by the High Court and, therefore, he got an extension of time from the High Court.  Even within the extended period he did not deposit or pay the amount.  Subsequently he made direct payment, and that too, in instalments to the complainant without any permission from the High Court. ( It is not known whether the acceptance by the complainant of the instalment payments was with full knowledge of the time limit fixed by the High Court because, the order extending time was evidently passed in the absence of the complainant. Even the reported decision has been rendered behind the back of the complainant and the counsel who was heard on the opposite side was the learned Public Prosecutor). After belatedly effecting payments to the complainant, the convict reported the matter before the Trial Court, evidently to avert action for enforcement of the default sentence.  But the trial Court was not inclined to accept the payment which was not within the period stipulated by the High Court.  The Trial Court accordingly initiated coercive steps for recovery of the fine  or for enforcement of the default sentence.  It was under these circumstances that the convict approached  the High Court for further extension of time.  The learned Judge not only dismissed the application but also directed that the payment effected by the convict was to be treated as one made in compliance of the direction of the High Court.  The Registry of the High Court was directed to communicate the order to all the Sessions Judges who in turn were directed circulate the order among all the judicial officers under them.

WHY  THIS   RESPONSE?

3. The order passed by the learned Single Judge virtually amounts to a command   to the lower Courts to ignore or even flout the time–bound directions issued by superior Courts.  The above order has overlooked certain practical aspects of the sentencing discretion exercised by the superior Courts.

4. Prosecutions under Section 138 of the Negotiable Instruments Act are never considered to be as serious as prosecutions for offences under I.P.C. or other penal statutes.  That   is presumably why the appellate or revisional Courts while confirming the convictions under the Negotiable Instruments Act, are lenient in the matter of sentence and very often, exempt the convict from the punishment of incarceration.  Such sentencing gestures by way of moderation are shown by the appellate   or revisional Courts usually behind the back of the complainants on the justification that as long as his share of recompense in the form of adequate compensation is paid to him, he cannot dictate the nature of the punishment to be meted out to the convict.  That is the reason why some Judges while granting extension of time to the convict without even sending notice to the complainant, would take care to ensure that the quantum of compensation is enhanced with every extension so that the complainant can have no grievance. But what is important to note is that the purpose of fixing a time–limit by the Court (whether it be the trial Court or appellate Court or revisional Court) is to ensure that if the convict does not adhere to the same he should then forfeit the judicial indulgence shown to him.  This is because, ordinarily, the fine payable under a sentence of fine, is to be paid forthwith.  (Vide Section 424(1) Cr.P.C.).  While under this provision of law, the convicting Court   can grant time for a period not more than one month, the said restriction may not be applicable to the High Court.  The indulgence by way of enlargement of time, after time was once granted, also can be shown only by the High Court by virtue of its inherent power. (Vide Sreedharan v. Bharathan(2014 (1) KLT 236 (D.B.) But if the convict does not make the payment within the time granted by the High Court, then he forfeits the judicial indulgence shown to him thereby becoming liable to the self-working direction of the sentencing Court that he shall undergo the default sentence.  This consequence can be averted by him only by again approaching the High Court for a ratification of the belated payment, if any, made.  If he does not do so, he may have to suffer the consequence of facing coercive action for the default sentence.  Even in cases where the convict is given the benefit of making direct payment to the complainant within a time-frame, the convict cannot take undue advantage of such benefit by making the payment at his own leisure and beyond the period fixed by the High Court.  It may be relevant in this connection to note that the complainant while accepting the payment without any demur, may not even be aware of the enlargement of time granted by the High Court or even the time-limit fixed by the High Court for payment, all done behind his back.  One should not forget that an informed complainant can even refuse to accept the belated payment and in such case also the convict will have to undergo the default sentence because any payment effected or attempted to be effected beyond the time-limit fixed by the High Court is no payment at all.  The relevance and applicability of Sections 68 and 69 of the Indian Penal Code will arise only when the convict actually undergoes the default sentence which then will have to be terminated upon payment of the fine amount in full or part. The illustration to Section 69 of the Indian Penal Code also envisages a situation in which the convict is actually undergoing imprisonment in default of payment of fine. This aspect of the matter was overlooked in the decision of another learned Judge in Girish v. Muthoot Capital Service(P) Ltd. (2007(1) KLT 16) which has been relied on in the reported case in question.   It is pertinent to note that even if the convict undergoes the full term of default sentence, his liability to pay the fine amount is not wiped off if the Court considers it necessary to issue the warrant for special reasons to be recorded in writing or if it is the very same fine amount which is directed to be paid as compensation to the complainant under Section 357(1) Cr.P.C. (as in this case). (Vide the proviso to Section 421(1) Cr.P.C.).  Hence Sections 68 and 69 of the Indian Penal Code cannot be an answer to justify the refusal to comply with the time-bound direction in letter and spirit or for bye-passing the High Court.   Fixation of time-limit for compliance of the direction for deposit or payment within the extended period, should have some meaning.  Otherwise, it may even be possible for a convict to go abroad, mobilise sufficient funds, return to India after a few years and then deposit the amount before the trial Court and avert a default sentence.  The complainant also may have to be satisfied with the meagre amount fixed years ago. The High Court was not, in my opinion, right in blaming the lower Court for not accepting the payment which was admittedly made after the expiry of the time-limit fixed by the High Court.  The convict in the case on hand was, therefore, justified in again approaching the High Court for extension of time (really it involved a request for ratification of the belated payment).  In fact, going by the narration of facts in paragraph 2 of the reported decision, the coercive steps taken was for realisation of the fine amount which the Magistrate was entitled to take under Section 421 Cr.P.C.  (Vide Shine Varghese v. State of Kerala  (2008(4) KLT 371).   In fact,  in R. Mohan v. A.K.Vijayakumar  (2012 (3) KLT SN 46 (C.No. 47) SC)  the Apex Court put the default sentence as the common mode for the recovery of fine in a sentence of fine and for the recovery of an order for compensation.  This is what the Supreme Court has observed in paragraph 29 of the above verdict:-

“If Section 421 of the Code  puts compensation ordered to be paid by the Court on a par with fine so far as the mode of recovery is concerned, then there is no reason why the Court cannot impose a sentence in default of payment of compensation as it can be done in the case of default in payment of fine under Section 64 I.P.C”.

In my humble view, the learned Judge, went wrong in holding that it was unnecessary for the convict to approach the High Court. By means of the order in question, made “reportable”, the learned judge has blocked all petitions to be filed hereafter for enlargement of time. Is the judicial reluctance attributable to a “pendency phobia” or a “petition allergy”.What was ordered to be communicated to the lower Courts was an illegal direction.

5. Judicial personage of the superior Courts, before finding fault with their brethren at the lower tiers, should be doubly cautious to ensure that the mistakes pointed out are indeed avoidable legal infirmities.  This is particularly so in the case of those in the High Court since their orders and verdicts constitute binding precedents for the subordinate judiciary.  A good majority of errors are not committed deliberately or in bad faith unless the errant is found to be incorrigible or actuated by ulterior motives.  Omnibus directions of a general character for the lower Courts to follow, should be lawful directions consistent with the established procedure.  Otherwise, such directions may amount to a command to follow a procedure which is not sanctioned by law.

A New Legislation -- The Negotiable Instruments Amendment Ordinance -- No. 6 of 2015

Trial Jurisdiction -- Cases under Section 138 of N.I. Act

(By K.G. Joseph, Advocate, Aluva)

1. The impact of the new legislation locating jurisdiction for trial of prosecution cases under N.I. Act Section 138 as contained in the ordinance cited above is far reaching in the right direction with correct dimension. A sigh of relief from the anguish experienced by the Industrial/Commercial/Business/Trading/Banking/Economic world is visible out of their shock due to the dictum in the rulings of Hon’ble Supreme Court on Ist August 2014 with direction for trial of the Section 138 cases only at places of dishonour of cheque by the concerned paying Banks of the accused with retrospective effect. Before highlighting the salient features of the new legislation it will be highly noteworthy and most relevant that in the original Amendment Act 1988 and in the subsequent amendments there was no specific provision regarding the trial jurisdiction of Section 138 cases. As a result for a decade from April 1989 till 1999 the jurisdiction was based on the framework of I.P.C./Cr.P.C. provisions. After the dictum in the rulings in the two Judges Bench (1999 (3) KLT 440 (SC)) Bhaskaran’s case (K.T. Thomas, J.) of the Supreme Court, 5 places of jurisdiction was prevailing though with certain deviations under special grounds due to rulings/interruptions subsequent to it from Hon’ble Supreme Court/High Courts etc.

2. It may be noted that Amendment Act 1988 is keeping its distinct identity for offence under Section 138 being “deemed offence” out of the realm of mens rea - guilty mind “without involving moral turpitude”. “Technical and strict liability offence in commercial practice”. However the last judgment dated 1.8.2014 by 3 Judge Bench of the Hon’ble Supreme Court. (2014 (3) KLT 605 (SC) (Dashrath Rupsingh Rathod’ case) (Vikramajit Sen, J.) is historic/epoc making ‘in as much as trial jurisdiction of Section 138 cases has been rendered “accused centric” with I.P.C./Cr.P.C. domination as the places of Drawer’s Bank - paying Bank (Bank of the accused) was given prime importance for trial jurisdiction with retrospective effect without considering even the place of transactions between the holder and drawer which led to the issuance of dishonoured cheque and confining only to the place of Drawer’s Bank where the cheque was dishonoured. This has created innumerable hardships and untold miseries to the trading world disrupting their normal business transactions in as much as commercial world became reluctant to accept outside cheques for day to day transactions. Besides large scale transfer of cheque cases from the filing court to the new places of Drawer’s Bank especially at far distant places consequent on the rulings was a terrible blow to the business world dealing in cheques who considered it as a moral insult coupled with fatal financial injury inflicted on them for none of their fault after parting with their hard earned assets/money to the accused which has ended in cheque cases. Holders of cheque/complainant of cheque cases were confronted with disgruntlement, frustration and dissatisfaction which had adverse effects on their business mostly dealt in cheque transactions after Supreme Court rulings on Ist August 2014 fixing jurisdiction limiting only to the places of dishonour of cheque issued by the drawer.

3. The impact became most relevant/conspicuous in the legal parlour/profession of law which was found not encouraging apart from its adverse consequences on Industry and Commerce. There were Representations from Association of Industrial/financial intuitions/ trading sectors/economic field with regard to the discouraging implications of the near situations with particular reference to the industrial growth/commercial/business dynamism/trading facilities/ and over all economic growth of the country etc. Therefore comments in the Press/News papers/periodicals etc. with suggestions for remedies/solutions have been forth coming in large scale. In order to achieve the best results from the industry and business through cheque transactions the original identity of the enactment atleast prior to 1st August 2014 became enviable. The concerned authorities became aware of the new situations and ways and means were worked out at appropriate levels. The new piece of legislation in the form of ordinance became indispensable to minimize delay and to meet challenges. It is pertinent to note that ground realities based on facts findings/expertise on the subject matter have compelled the authorities/law makers to bring the present amendment which paved the way for the removal of impediments/ambiguities in the trial jurisdiction by confining/prescribing the two distinct identified places of jurisdiction under Section 142(2)(a) and (b) which is reproduced for ready reference of readers as under.

“142(2).The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction:-

(a) If the cheque isdelivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account is situated or

(b) If the cheque presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation -For the purpose of clause (a) where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account”.

4. It is pertinent to note that a fair approach towards the holder/creditor/payee complainant without sacrificing fairness to the interest of the drawer/debtor/accused are seen with specific clauses for jurisdiction for trial. Section 142A deals with “Validation for transfer of pending cases” in detail thereby making the trial of cases in its original place of filing except in certain situations mentioned therein. The inadequacy of the existing provision has been identified with the categorical status for jurisdiction with caution and vision avoiding any shadow of doubts. It needs mention/emphasis that the new legislation gives a fresh impetus to the commercial world dealing in cheque transactions for their multifarious business and they even treat the ordinance as a revival/renaissance of the original status of the 1988 enactment. It is interesting to note that business people consider it as a resurrection for their commercial activities in a newdimension/direction. A newtrend among the business people was in vogue to resort to primitive method of civil suits without availing the provisions of S.138 as a result of the 2014 1st August Supreme Court rulings. However such a trend is being changed in the light of new amendment from 15.6.2015. Reinstatement of jurisdiction to the places of Holders/payees Bank is really a salvation to the complainant in as much as he need not go after the drawers’ Bank in distant places. The interest of the honest holder of cheque is well protected under the new legislation as there is no escape to the dishonest drawer dictating the holder to go to his place for trial. The Business circle consider the new ordinance as the emancipator of the mercantile world from the encircling darkness of uncertainty regarding jurisdiction existing hitherto thereby restoring the life of the 1988 enactment with new spirit and. soul anticipated by the law makers.

5. The message in the amendment is to be understood by legal fraternity/ professionals by identifying the collecting Banker as holders’/creditors’/complainants’ Bank and the paying Banker as Drawers’/debtors’/accused’s Bank. If cheque is given by complainant to his Banker for collection the place of such Bank is the place of trial jurisdiction, when dishonoured. If the cheque is presented for payment by the complainant directly to the paying Banker over its counter the place of such paying Banker will be the place of trial jurisdiction when dishonoured. In Banking Law and practice this fundamental of banking is most relevant for the professional/legal practitioners in dealing with cases of N.I. Act under Section 138.While sharing the implications of the new ordinance regarding jurisdiction this writer feels to clarify the correct position by a speaking illustration to readers. If a Kochi Merchant gets a cheque of Aluva Bank from an Aluva Merchant the Kochi Merchant has got two options under the S.142(2). He can deliver the cheque at his Kochi Bank for collection through cheque transaction system and if dishonoured Kochi will be the place of jurisdiction under S.142(2)(a). Alternatively if Kochi Merchant takes the cheque in person and present it for payment over the counter at Aluva Bank and if dishonoured the place of jurisdiction will be at Aluva under S.142(2)(b). It is also noteworthy that any protection to defaulters of cheque against the genuine interest of aggrieved complainant is clearly removed in the new Amendment ensuring the realties of clearing under cheque truncation system and encouraging the use of cheques and enhancing its credibility for normal business transaction.

6. A blessing in disguise is noticed among business people/complainants in the context of giving retrospective effect by virtue of Amendment of Section 142A “validating the transfer of pending cases”. Actually the adverse effects on the pending cases as a result of Supreme Court rulings dated 1.8.2014 has been eclipsed by means of this section with suitable modifications in the light of S.142(2)(a) and (b). The business world has been activated and rejuvenated with a silver lining every where so as to enjoy the benefit of ordinance in business transactions with certainty/clarity of the fate of dishonoured cheque’s feature. There are positive directions and proper guidelines in the Amendment ordinance to the Bench and Bar for adhering to the ingredients relating to jurisdiction. A new ray of light has been thrown by the ordinance in the midst of encircling darkness in the areas of trial jurisdiction which is clearly removed by the amending provisions. According to the business world the agony/ordeal of the creditors came to an end with the promulgation of the ordinance with ever shining rosy petals on the glorious crown of Section 138 cases and the economic activities are started to achieve smart situations prevailed during the period prior to 1st August 2014.

7. It is noteworthy at this juncture that Mr. Markandey Katju (Chairman of the Press Council of India) made a valuable remark that “great changes were not brought by legislations made by judges, but by the power of people (the Hindu 5th March 2013). A valuable/precious relevance is attached to this statement in as much as the new legislation highlights the “power of people” in the form of ordinance after the Supreme Court rulings which is the law of the land in the matter of jurisdiction of Section 138 cases at present. It is a boon and not a bane in the present context. All the legislations by enactment/ordinance are the result of expertise on the subject matter while judicial versions on the same subject matter may not be with requisite expertise thereby warranting fresh legislation. This, writer does not incline to elaborate the subject as the circumstances led to the new legislation is widely assessed/discussed/under- stood by all concerned.

8. The piece of legislation covered by the ordinance is a golden thread binding the N.I. Act with that of the stable fabric of business norms and trading ethics resulting in normal commercial dealings encouraging ordinary economic activities with greater efficiency/expe- diency in the best interest of economic growth of the country. The spirit of the amendment ordinance is welcomed by all concerned with ovations of clapping hands and vibrant cheers without fear/anguish in the future business if cheque is dishonoured. The timely interference for settling the genuine grievances of the Industry/business/Trade/commerce with visionary zeal and without vested interest from the side of the concerned authority/lawmakers deserves felicitations/ appreciations/congratulations which are recorded herein with bouquet of fragrant flowers.