R. Ramachandra Nair vs The Dy.S.P.Vigilance Of Police & Anr

R. Ramachandran Nair .... Appellant(s)

Versus

The Deputy Superintendent

Vigilance Police & Anr. .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the impugned judgment and

order dated 12.07.2010 passed by the High Court of Kerala at

Ernakulam in Criminal R.P. No. 1606 of 2010 whereby the

High Court dismissed the petition filed by the appellant herein

seeking discharge from the criminal case pursuant to a charge

sheet filed in the Court of the Enquiry Commissioner and

Special Judge, Thrissur, by the Vigilance Police Department.

3) Brief facts:

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(a) The Government of Kerala was trying to establish a

Sanskrit University in the State from the year 1972 onwards.

On 15.07.1991, the appellant was appointed as Special Officer

for creating the first Sanskrit University in the State. On

16.01.1993, the State issued a Government Order directing

the District Collector, Ernakulam to acquire the land for the

establishment of the University. The entire land of 42.5 acres,

so acquired in Kalady (the holy birth place of Sree

Sankaracharya) in Ernakulam District which was handed over

to the University by the District Collector of Ernakulam for

establishing the University consisted of low-lying and water-

logged paddy fields and any development work could be

started only after it was filled up with earth. Before starting

the work of filling up, the appellant, who was functioning as

the Chief Secretary to State Government at the State

Headquarters, had consulted several experts in the field

including the Chief Engineer of the State Public Works

Department (hereinafter referred to as PWD") who was actually

brought to the site. The appellant filled 42.5 acres of

waterlogged land with earth brought from distance. An

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amount of Rs.5,925/- was spent for filling up of every one cent

of the water logged land.

(b) From 01.01.1994 to 30.06.1996, the appellant was

appointed as the first Vice-Chancellor of the University. On

18.12.1996, an FIR being Crime No.9 of 1996 was registered

in the Vigilance Police Station, Ernakulam against the

appellant and four other persons under Section 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act, 1988

(hereinafter referred to as "the PC Act") and Sections 120-B

and 463 of the Indian Penal Code (in short "IPC"). The

allegation against the appellant was that the work of filling of

earth in the land acquired for the said University was done in

an irregular manner and he obtained a pecuniary advantage of

Rs. 59,51,543/- with the contractors thereby causing

corresponding wrongful loss to the University.

(c) During May-June, 1997 the Vigilance Department

examined the site relating to the alleged earth-filling during

the years 1993 and 1994. This examination was done after

three years and after the occurrence of six monsoons. Due to

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the impact of rains during six monsoons during that time, the

field had got thoroughly consolidated.

(d) On 30.06.2005, a charge-sheet was filed in the Court of

the Enquiry Commissioner and Special Judge, Thrissur with a

delay of eight and a half years after the F.I.R. and without

obtaining the previous sanction of the Syndicate of the

University under Section 50(2) of the Sree Sankaracharya

University of Sanskrit Act, 1994 (hereinafter referred to as "the

Act"). In the FIR, the pecuniary loss caused to the University

was indicated as Rs.59,51,543/- whereas in the charge-sheet

it has come down to less than 5% of the originally estimated

amount, i.e., Rs.2,68,358/-.

(e) In the meanwhile, on 03.04.2006, the Principal Secretary

to the State Government directed the Director, Vigilance and

Anti Corruption Bureau to withdraw the cases against the

appellant. In this communication, the State has admitted that

the conduct of the appellant was in good faith and that only

because of the speedy actions taken by him, the University

had become a reality within a short period of time and that the

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appellant is eligible for the protection under Section 50(3) of

the Act.

(f) On 19.12.2008, the appellant filed an application under

Section 239 of the Criminal Procedure Code (in short "the

Code") being CMP No. 2933 of 2008 in CC No. 31 of 2005 in

the Court of Enquiry Commissioner and Special Judge,

Thrissur for discharge. By order dated 29.08.2009, the

Special Judge dismissed the abovesaid application on the

ground that the appellant is not entitled to get the protection

of Section 50 of the Act as being the Vice-Chancellor, the

appellant was a public servant.

(g) Against the said order, the appellant preferred Criminal

Revision Petition No. 1606 of 2010 before the High Court of

Kerala. By order dated 12.07.2010, the High Court dismissed

the revision filed by the appellant herein. The said order is

under challenge in this appeal.

4) Heard Mr. K.V. Viswanathan, learned senior counsel for

the appellant and Mr. Jaideep Gupta, learned senior counsel

for the respondents.

5 5) The only allegation on the appellant was that while

functioning as the Vice-Chancellor of the University he was

found guilty for filling of earth in the land acquired for the

University in a most perfunctory and irregular manner with

ulterior motive by not recording the measurements correctly,

showing inflated figures of measurements in the records and

thereby committed falsification of accounts and forgery,

criminal breach of trust and cheated the Government by

corrupt or illegal means and committed misconduct, obtained

undue pecuniary advantage of Rs.2,68,358/-, and he being

the first accused has committed offence punishable under

Sections 13(1) (d) and 13(2) of the PC Act and Sections 409,

468, 477A and 120-B of IPC.

6) Mr. K.V. Viswanathan, learned senior counsel for the

appellant, at the foremost, submitted that in view of Section

50(2) of the Act, without the previous sanction of the

Syndicate of the University, the prosecution cannot be allowed

to proceed against the appellant. He pointed out that Section

50(2) of the Act stipulates "sanction of the Syndicate". He

further highlighted that the prosecution, which has been

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initiated without the sanction of the University, ought not to

be allowed to continue against the appellant. He also

submitted that inasmuch as even in 2006 the Government of

Kerala, Vigilance (B) Department Thiruvananthapuram, after

considering all the relevant materials, decided to withdraw the

criminal proceedings against the appellant in the cases i.e. CC

No. 21 of 2000 and CC No. 49 of 2000 pending before the

Court of Enquiry Commissioner & Special Judge, Kozhikode

and CC No. 31 of 2005 pending before the Court of Enquiry

Commissioner & Special Judge, Thrissur, with the permission

of the respective Courts. He also submitted that even on

merits inasmuch as the appellant obtained the approval of the

Chief Engineer of the PWD and accepted the lowest tender

which was below the amount prescribed by the competent

officer of the PWD i.e. Assistant Executive Engineer, there is

no loss to the Government hence he cannot be held liable.

7) On the other hand, Mr. Jaideep Gupta, learned senior

counsel for the respondents submitted that in view of the

materials available, the appellant has not made out a case for

discharge and he has to face the trial. He also submitted that

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the plea of the appellant was considered and rejected by the

trial Court as well as by the High Court, therefore, interference

by this Court is not warranted.

8) We have carefully considered the rival submissions and

perused all the relevant materials.

9) Insofar as the first issue, namely, whether or not a

prosecution can be allowed to proceed in the face of Section

50(2) of the Act without the sanction of the Syndicate of the

University, it is useful to refer the relevant provision which

reads as:-

"50. Protection of acts done in good faith--

(1) XXX

(2) No suit, prosecution or other proceedings shall lie against

any officer or other employee of the University for any act

done or purported to have been done under this Act, or the

Statutes or the Ordinances or the Regulations without the

previous sanction of the Syndicate.

(3) XXX"

The headnote makes it clear that any act done in good faith is

protected. The appellant, being Vice-Chancellor of the

University, is one of the Officers of the University in terms of

Section 23 of the Act. In that event, it is not in dispute that

Section 50(2) is applicable to the appellant and in respect of

any act done under the Act or Statutes or Ordinances or

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Regulations, no suit or prosecution or other proceeding be

initiated against him without the previous sanction of the

Syndicate. Inasmuch as sub-Section 2 used the word "shall",

previous sanction of the Syndicate is a pre-condition or

mandate before initiating either civil or criminal prosecution.

To put it clear, as per Section 50(2) of the Act, no prosecution

will lie against the appellant without the previous sanction of

the Syndicate. It is important to note that the allegations

against him related to actions which he had taken while he

was discharging his duties as an Officer of the University,

namely, the Vice-Chancellor of the University. A perusal of the

FIR makes it clear that there was not even a whisper of an

allegation or in the charge-sheet that the appellant had made

any personal gain in the transaction. The allegation was only

that the contractor who did the earth filling obtained an excess

amount of Rs. 2,68,358/-. It is not clear why the prosecution

has waited for nearly 81/2 years to file the charge-sheet or

waited until the death of the contractor and until the Assistant

Executive Engineer who prepared the quotation for the work

and in-charge of the work got promoted as Executive Engineer

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and then as Superintending Engineer and retired from service

on superannuation and left the country for working in UAE

before filing the chargesheet in the Court.

10) Apart from the above conclusion, in the light of the

language used in sub-Section 2 which is mandatory in the

absence of previous sanction of the Syndicate of the

University, the prosecution cannot be launched or proceeded.

It is not the case of the prosecuting agency that they obtained

sanction from the Syndicate of the University which is the

competent authority to sanction. In the light of the language

used in sub-Section 2 and in the absence of previous sanction

by the Syndicate of the University, we hold that the

prosecution cannot be allowed to proceed, even otherwise, he

being a Vice-Chancellor, acted diligently by following the

procedure, no action could be initiated after a period of 8 years

from the initiation of the complaint.

11) Coming to the second contention, namely, the stand of the

Government which is reflected in the proceedings dated

03.04.2006, it is also useful to extract the decision of the

Government of Kerala, Vigilance (B) Department which was

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communicated by Principal Secretary to Government to the

Director, Vigilance & Anti Corruption Bureau,

Thiruvananthapuram which reads thus:-

"GOVERNMENT OF KERALA

No. 9575/B1/05/Vig. Vigilance (B) Department

Thiruvananthapuram

Dated 03.04.2006

From

The Principal Secretary to Government

To

The Director

Vigilance & Anti-Corruption Bureau

Thiruvananthapuram

Sir,

Sub: Withdrawal of cases pending against Shri R Ramachandran

Nair, former Vice-Chancellor, Sree Sankaracharya University

of Sanskrit - Reg.

Ref. 1. Govt. letter of even No. dated 07.10.2005.

2. Your letter No. C5/SJK/16465/2000 dated 03.12.05 &

18.02.06.

I am directed to invite your attention to the references cited and to

inform you that a further examination of facts in respect of the three cases

viz. (CC No. 21/2000 and CC No. 49/2000) of the Court of Enquiry

Commissioner & Special Judge, Kozhikode and CC No. 31 of 2005 of the

Court of Enquiry Commissioner & Special Judge, Thrissur it is found that

steps were taken by the University Centres at the earliest possible date and

it was due to such speedy action that the University which was being

contemplated for a very long time became a reality within such a short

period of 1994-1996. As the former Vice-Chancellor had acted in good

faith in the discharge of the functions imposed on him under the University

Act, he is fully eligible for the protection of Section 50(3) of Sree

Sankaracharya University of Sanskrit Act, 1994, which read as follows:-

50(3) "No Officer or other employee of the University shall be liable

in respect of any such act in any civil or criminal proceedings if the act was

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done in good faith and in the course of the execution of the duties or in the

discharge of the functions imposed by or under this Act."

As the action taken by the former Vice-Chancellor was "in good

faith" in all three cases, it is decided that prosecution shall be withdrawn in

CC 21/2000 and CC No. 49/2000 of the Enquiry Commissioner & Special

Judge, Kozhikode, and CC No. 31/2005 of the Enquiry Commissioner &

Special Judge Court, Thrissur.

Hence, I am to request you to take urgent action to withdraw the

cases in CC 21/2000 and CC No 49/2000 pending before the Court of

Enquiry Commissioner & Special Judge, Kozhikode and CC No. 31/2005,

before the Enquiry Commissioner & Special Judge, Thrissur, with the

permission of the respective courts.

The action taken in matter may be intimated to Government

immediately.

Yours faithfully

Sd//-

K.A. BHAGAVATHY AMMAL

Additional Secretary

For Principal Secretary to Government"

12) Perusal of the above communication at the highest level

makes it clear that on examination of the entire facts in the 3

cases, namely, CC Nos. 21 and 49 of 2000 and CC No. 31 of

2005 which are pending before the Special Judge, Kozhikode

and Thrissur respectively and the sincere and speedy action

taken by the appellant as Vice-Chancellor of the University

and also acted in good faith in the discharge of the function

imposed on him under the Act, the Government requested the

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Director Vigilance, Anti-Corruption Bureau to take action to

withdraw all the 3 cases pending before the respective Courts.

It is not clear, in spite of such decision at the highest level,

namely, Chief Secretary to Government, no follow up action

was taken before the concerned courts seeking permission to

withdraw the criminal proceedings pending against the

appellant. In terms of Section 114 of the Evidence Act, 1872

this Court may legitimately draw a presumption that the

Government had taken a conscious decision exonerating the

appellant even in 2006 and there is no reason to doubt the

integrity of the appellant.

13) Apart from the legal issues which are in favour of the

appellant, even on merits, prosecution cannot be allowed to

proceed against the appellant. When the appellant was asked

to take required steps for formation of the University under the

Act, the Government allotted 42.5 acres of land which was

water logged and any development work could be started only

after it was to be filled up with earth. It is also available from

the records that the estimate was prepared by the Assistant

Executive Engineer and based on which tenders were called

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for and it is not in dispute that the appellant accepted the

lowest tender which is of lesser amount than the one

prescribed by the Engineer. It can also be seen that before the

work was started, the appellant had consulted several experts

in the field including the higher officials of the State and

actually brought them to the site regarding the filling up of the

earth. Further, though in the FIR, the complainant had

claimed that the appellant had obtained a pecuniary

advantage of around Rs. 59,51,543/- whereas in the charge-

sheet filed by the prosecution in the Court, it has come down

to less than 5 per cent of the original estimate, nearly, Rs.

2,68,358/-, admittedly, there is no mention in the chargesheet

about the huge difference in the calculation of the loss

between the FIR and the chargesheet. Further, when the

Government of Kerala decided to establish a University

exclusively for Sanskrit in its State two decades ago,

admittedly, nothing came out for a long time and only in the

year 1991 the appellant was appointed as Special Officer for

creating a University. It was pointed out that within two years

the mission was completed and Sri Sankaracharya University

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of Sanskrit was created and started functioning in November

1993 and in the next month i.e. in December 1993, the

Government appointed him as the first Vice-Chancellor of the

University and he assumed charge of the post with effect from

January 1, 1994. He continued in the post for a period of 21/2

years i.e. till 30.06.1996. All these factual details clearly show

that even on merits the respondents are not justified in

continuing the criminal proceedings. Though all these legal

and factual details have been projected before the Trial Court

as well as the High Court, the same were not correctly

appreciated and both the courts committed an error in

dismissing his petition filed for discharge. With the abundant

materials and in view of the non-compliance of statutory

provisions mentioned above, we accept the claim of the

appellant. For all these reasons, we are satisfied that the

appellant has made a case for discharge from the criminal

proceedings.

14) In these circumstances, the orders passed by the Enquiry

Commissioner and Special Judge, Thrissur dated 29.08.2009

in CMP No 2933 of 2008 and CC No. 31 of 2005 and order of

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the High Court dated 12.07.2010 in Crl. RP No. 1606 of 2010

are set aside, consequently, the appellant is discharged from

all the allegations leveled against him. The appeal is allowed.

.................................................J.

(P. SATHASIVAM)

...............................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

MARCH 28, 2011.

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