Ramesh Chennithala vs The State Of Kerala

of India. The petitioner was the Home Minister of

Kerala in the former Government. The former Government

had granted promotion to four Senior Police Officers of

IPS rank to the cadre of Director General of Police as

per the GO(RT)No.1932/2016/GAD dated 01.03.2016. This

order was issued on the basis of a cabinet decision.

One of the promotees was posted by the Government as

the Director of the VACB, which was a cadre post meant

for Director General of Police. The Additional second

respondent herein brought a complaint before the court

below alleging nepotism, corruption etc, in the said

promotion, and also in the posting of the Director of

the VACB, and he sought orders for investigation under

the Prevention of Corruption Act (PC Act), 1988. The

said complaint was filed as CMP No.1153 of 2016, and

after hearing the complainant, the learned trial Judge

forwarded the complaint to the VACB for preliminary

enquiry, and also for registering crime, if found OP(Crl.).No. 83 of 2017 3

necessary. The petitioner herein is the third

respondent in the said complaint. The police officer

who obtained promotion along with three others, and

posted as Director of the VACB, is the first respondent

in the complaint. The second respondent in the

complaint is the then Chief Minister of Kerala, the 4 th

respondent is the then Chief Secretary of the

Government, and the 5th respondent is the then

Additional Chief Secretary of the Government. The

complaint itself states that promotion was given to the

police officers as decided by the cabinet, but it

alleges that it was in prosecution of a design hatched

by the then Home Minister with the involvement of the

Chief Minister, to by pass some senior police officers

who had a better claim for posting as Director of

Vigilance, and the then Government was very particular

to post the first respondent as Director of the VACB.

To facilitate such posting, four police officers

including the first respondent were granted promotion

in violation of the provisions of the law relating to

the promotion of IPS officers, the complaint would

allege.

2. Finding a prima facie case of wrong exercise OP(Crl.).No. 83 of 2017 4

of jurisdiction by the court below in forwarding the

complaint for enquiry or investigation, this original

petition was admitted to files. The complainant in the

trial court was later impleaded as the additional

second respondent. He filed a formal statement of

objection, but later he did not turn up to contest the

matter.

3. The scope and the extent of the jurisdiction

of the High Court under Article 227 of the Constitution

of India has undergone thorough change, and the

Honourable Supreme Court has settled the position that

the High Court can interfere under Article 227 of the

Constitution of India, and correct the jurisdictional

errors committed by the subordinate courts and

tribunals. When any instance of wrong exercise of

jurisdiction, or error of jurisdiction in the exercise

of the powers of any subordinate court or tribunal is

brought to the notice of the High Court, such errors

can very well be corrected, and orders passed without

jurisdiction, or on wrong exercise of jurisdiction can

very well be set aside in exercise of the supervisory

powers under Article 227 of the Constitution. (State

through Special Cell, New Delhi v. Navjot Sandhu @ OP(Crl.).No. 83 of 2017 5

Afshan Guru and others [2003 (SCC(Crl)1545=2003(2) KLT

SN 132] There can be situations where the police powers

under the PC Act are misused or abused. This Court had

on many occasions come across such instances where

crimes were unnecessarily or baselessly registered by

the VACB against public servants, and harassing

investigations were made simply on the allegation that

the acts or discharge of functions by the public

servants had caused loss to the public revenue. Loss to

public revenue cannot be the sole basis for a

prosecution or procedure under the PC Act. The scope

and object of the different provisions of the PC Act

must be properly understood by the prosecuting

agencies. In cases where a crime is unnecessarily or

baselessly registered without the necessary elements

constituting any offence under the PC Act, or where

investigation proceeds baselessly, just to harass a

public servant, the Court cannot go helpless, and the

Court will have to interfere. In such cases of abuse

or misuse of police powers under the PC Act, the High

Court will have to interfere to prevent such

investigative excess or harassment.

4. It is not known why one of the four OP(Crl.).No. 83 of 2017 6

promotees alone is arraigned as accused in the

complaint brought by the second respondent. Four police

officers were given promotion by the former Government,

and the present Government has approved it, and have

maintained the promotion given to the police officers.

If the promotion granted by the Government is illegal,

or if it involves any element of corruption or

nepotism, it is not known why the complainant would not

question the promotion given to the other three police

officers. This conduct itself makes it very much clear

that this is a malafide complaint, or the second

respondent brought such a complaint either for personal

ends or with some other ulterior motive. If at all,

any promotion given by the Government to any public

servant involves any illegality or violation of the

provisions of the law governing such promotions, it is

a matter to be examined by the competent judicial

forum, when the promotion is challenged by the

aggrieved persons. Promotion granted to public

servants by the Government, or by any officer or agency

under the Government, cannot be a subject matter of

litigation or enquiry or investigation at the instance

of members of the public. If any person or any public OP(Crl.).No. 83 of 2017 7

servant is aggrieved by such promotion, it must be his

concern to challenge it appropriately before the

competent forum. Promotion of public servants is a

prerogative of the Government, or the authority

competent to give promotion, and if the promotion

involves any illegality or violation of the procedure

established by law, it can be subjected to examination

and adjudication only by the competent judicial forum.

The remedy is not an investigation or prosecution under

the PC Act. The complaint made by the second

respondent does not disclose what exactly is the

element of corruption he would allege in the promotion

process or who exactly committed criminal misconduct in

the promotion process, or in the posting of the first

respondent as Director of the VACB. Of course, in the

matter of posting of the State Police Chief, or the

Director of the VACB, or any other responsible officer

of high rank the Government can pick and choose,

without, of course, violating the provisions of law or

the procedure established by the law. It appears that

the grievance of the complainant is that when other

police officers were also there, the former Government

picked and chose the first respondent as Director of OP(Crl.).No. 83 of 2017 8

the VACB. The Government may have their own reasons to

pick and choose one of the officers or not to consider

the other officers. It is a prerogative of the

Government. That prerogative cannot be subjected to

judicial scrutiny or Judicial review unless the process

involves violation of any law or violation of the

procedure established by the law. Without understanding

these basic things, the complaint made by the second

respondent happened to be forwarded to the VACB by the

trial court. Here the supervisory powers of the High

Court under Article 227 of the Constitution of India

will have to be exercised, and it is being exercised

for correcting the wrong orders passed by the trial

court.

5. On the basis of the impugned order, a

preliminary enquiry was conducted by an Inspector of

the VACB, and he submitted a report, the copy of which

I have perused. This Inspector has gone to the extent

of deciding on the legality of the promotion and the

posting made by the Government. The VACB has no such

authority to question the authority of the Government,

or to inquire into or report or decide on the

administrative matters and decisions of the Government. OP(Crl.).No. 83 of 2017 9

Expressing serious concern over this report, this Court

had observed in the interim order dated 20.02.2017 that

the Government would have to think very seriously and

decide whether the VACB in Kerala should be allowed to

reign over the Government.

6. I have come across many cases of complaints

mechanically forwarded, either for preliminary enquiry

or for investigation. Such mechanical orders will have

atrocious consequences. How such a complaint brought

under the PC Act should be dealt with, has been

explained by this Court for the attention of all

concerned including special Judges, in Manoj Abraham,

IPS v.P.P.Chandrasekharan Nair and Another [2017(3)KHC

983 = 2017(3) KLJ 896]. Biju Purushothaman v. State of

Kerala [2008 (3) KLT 85] has also elaborately explained

the different options possible on a complaint.

7. On a complaint received directly or on a

complaint forwarded from the court under Section

156(3)Cr.P.C, the VACB can register a crime only if

the complaint discloses a cognizable offence punishable

under the P.C Act. In Manoj Abraham's case cited supra,

this Court has explained how or when a cognizable

offence is disclosed, for the purpose of registering OP(Crl.).No. 83 of 2017 10

crime under Section 154 Cr.P.C. A complaint forwarded

from the court under Section 156(3) Cr.P.C, will not

have any special sanctity. Once such a complaint is

forwarded, it goes off the files of the court, and

once received at the Station House Office, it is as

good as a complaint directly received there. In

certain cases enumerated by the Hon'ble Supreme Court

in Lalitha Kumary's case [2013 (4) KHC 552 = AIR 2014

SC 187=2014(2)KLT 632], a preliminary enquiry will

have to be made to find out whether a cognizable

offence is disclosed, or whether there are materials

for registering a crime and for investigation.

8. This case is a typical case of abuse of legal

process and judicial process. This sort of complaints

will have to be dealt with appropriately. A prosecution

brought or initiated under the P.C Act cannot be

lightly or casually approached by courts. It is a

serious prosecution having serious consequences. It is

quite unlike a prosecution alleging assault or

cheating or rioting or other offences. An unnecessary

investigation, or even a preliminary enquiry under the

P.C Act against a public servant may cause hardships to

such public servant, or it may cause blemish on the OP(Crl.).No. 83 of 2017 11

career of a public servant. Once such a blemish is

caused, it would be very difficult to erase it. Before

the court ordering investigation on a complaint under

Section 156(3) Cr.P.C, the court must examine not only

the complaint, but also the other materials

substantiating the allegations in the complaint. The

2nd respondent in this case is a person who has filed

about 45 complaints against different public servants.

The Police report also shows that the complainant has

been facing prosecution in three or four cases

including a crime under the Protection of Children

from Sexual Offences Act.

9. Prominently, the offences made punishable

under the P.C Act, 1988 are

(a) Acceptance of illegal gratification or undue advantage

(b) Instances of criminal misconduct as defined under Section 13 (1) of the P.C Act

(c) Attempt to commit such substantive offences

(d) Abetment of such offences in different forms as explained under the various provisions, etc.

10. For a prosecution under Section 7 or Section

13 of the P.C Act, there must be a situation where a

public servant, or somebody else in whom the public OP(Crl.).No. 83 of 2017 12

servant is interested, is benefited or has made or

accepted some undue advantage or monetary gain, or has

received any valuable thing for the performance of duty

improperly or dishonestly or has misappropriated money

from public funds, or has enriched himself illicitly.

In the present case, it is not known, how the promotion

given by the Government to four Police Officers

involves elements of corruption, or what exactly is the

misconduct therein. As already stated, promotion under

the service laws is the prerogative of the Government

and it is well settled that seniority alone shall not

be the criterion for promotion in any sector. If the

process involves any illegality or violation of the

provisions of the law governing service, the aggrieved

person can very well challenge it before the

appropriate Forum. Now we have Tribunals established

under the law and we have also the constitutional

courts like the High Court and the Supreme Court to

deal with such matters and to adjudicate on such

disputes. Such an exercise cannot be undertaken by the

Special Courts, and the legality or propriety of the

promotions granted by the Government to public servants

cannot be enquired into or investigated by the Police OP(Crl.).No. 83 of 2017 13

machinery. If that is allowed, it will have serious

and atrocious consequences in our democracy governed

by rule of law.

11. The Prevention of Corruption Act, 1988 has

undergone a thorough change in 2018. The Prevention of

Corruption (Amendment) Act of 2018 which came into

force on 26.07.2018 has introduced so many changes in

the law including some changes to protect the interests

of public servants, or to protect them from unnecessary

and baseless prosecutions. The very concept of illegal

gratification or pecuniary advantage has undergone a

thorough change, and now, by the amendment, any undue

advantage derived by the public servant for himself or

somebody else will come under the purview of

corruption. Before the amendment of 2018, Section 13 of

the PC Act of 1988 with the Sub Section (1) stood as

follows;

"13. Criminal misconduct by a public servant.-

(1) A public servant is said to commit the offence of criminal misconduct,-

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or OP(Crl.).No. 83 of 2017 14

b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

d) if he,-

i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources OP(Crl.).No. 83 of 2017 15

or property disproportionate to his known sources of income.

Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

12. Thus prior to the amendment, the Sub Section

(1) contained five clauses, and clause(d) dealt with

three separate instances of corruption described in the

Sub Clauses (i) to (iii). Now after the 2018 amendment,

Section 13(1) of the PC Act stands as follows;

"(1) A public servant is said to commit the offence of criminal misconduct,-

(a) if he dishonestly or fraudulently misappropriate or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or

b) if he intentionally enriches himself illicitly during the period of his office.

Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property OP(Crl.).No. 83 of 2017 16

disproportionate to his known sources of income which the public servant cannot satisfactorily account for.

Explanation 2.- The expression "known sources of income" means income received from any lawful sources."

13. The practical effect of the amendment is that

clauses (a) and (b) of Sub Section (1) of Section 13

dealing with habitually accepting or obtaining

gratification have been taken away, and such instances

of public servants habitually committing offences, or

habitually involving in acts of corruption are now

dealt with under Section 14 of the Act as it stands

amended by the 2018 amendment. The former Clause(c) of

Sub Section (1) of Section 13 of the Act is now

Clause(a), and the former clause(e) of Sub Section (1)

of Section 13 is now Clause(b) after the amendment.

Clause(a) deals with dishonest or fraudulent

misappropriation from public funds or breach of trust

in respect of properties is entrusted to the public

servant during the discharge of his duty as a public

servant, and the present Clause(b) after the amendment,

deals with any public servant who has intentionally

enriched himself illicitly during the period of his

office. The new explanation added to the present OP(Crl.).No. 83 of 2017 17

clause (b) is something in fact taken from the former

Clause(e), that if a public servant has in his

possession, or in the possession of somebody else on

his behalf, property or pecuniary resources

disproportionate to his known sources of income, and

for which he cannot account for, the public servant

will be liable for prosecution under Clause(b) for

having enriched himself illicitly during the period of

his office.

14. Besides taking away the Clauses (a) and (b) of

Sub Section (1) of Section 13, the new amendment has

also taken away Clause(d) dealing with three different

instances of criminal misconduct, and those instances

are, in a modified form, now covered by Section 7 which

has undergone a thorough change. Section 7 of the PC

Act, 1988 stood as follows before the amendment;

"7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official OP(Crl.).No. 83 of 2017 18

functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.

Explanations.- (a)"Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification".The word "gratification"

is not restricted to pecuniary gratifications or to gratifications estimable in money.

c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. OP(Crl.).No. 83 of 2017 19

e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.

15. But now Section 7 of the Act stands re-drafted

by the 2018 amendment, and it stands as follows;

"7. Offence relating to public servant being

bribed - Any public servant who,-

a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but OP(Crl.).No. 83 of 2017 20

which may extend to seven years and shall also be liable to fine.

Explanation 1.- For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

Illustration.- A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2.- For the purpose of this section,-

(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."

16. Before the amendment of 2018 accepting or

agreeing to accept or obtaining any gratification other

than legal remuneration, as a motive or reward for OP(Crl.).No. 83 of 2017 21

doing or forbearing to do any official act or for

showing or forbearing to show favour or disfavour to

any person in the exercise of his official functions by

public servant, or for rendering or attempting to

render any service or disservice to any person was

punishable as an act of corruption. Clause(b) to the

explanation to Section 7 before the amendment clarified

that gratification is not restricted to pecuniary

gratifications or to gratifications estimable in money,

and the Clause(c) provided that legal remuneration is

not restricted to remuneration which a public servant

can lawfully demand, but includes all remuneration

which he is permitted, by the Government or the

organisation which he serves to accept. Clause(d)

contained in the explanation prior to the amendment

provided that if any public servant has received

gratification as a motive or reward for doing something

which he does not intend to do or for doing something

which he is not in a position to do, or has not done,

that will also be treated as acceptance of

gratification as a motive or reward for doing something

as meant under Section 7.

17. Now let us see what is the change brought OP(Crl.).No. 83 of 2017 22

about by the 2018 amendment. After the amendment,

Section 7 has three clauses. Clause(a) deals with

obtaining or accepting or attempting to obtain an undue

advantage, with the intention to perform or cause

performance of public duty improperly or dishonestly,

or to forebear or cause forbearance to perform such

duty either by himself or by another public servant.

Clause(b) deals with obtaining or accepting or

attempting to obtain an undue advantage from any person

as a reward for the improper or dishonest performance

of a public duty or for forbearing to perform such duty

either by himself or another public servant, and

Clause(c) deals with public servants performing or

inducing another public servant to perform his duties

improperly or dishonestly or to forbear performance of

such duty in anticipation of or in consequence of

accepting an undue advantage from any person. The

explanation to the present Section 7 provides that the

act of obtaining or accepting, or attempting to obtain

any undue advantage shall by itself constitute an

offence under Section 7, even if the performance of the

public duty by the public servant is not or has not

been improper. Thus, the explanation makes it clear OP(Crl.).No. 83 of 2017 23

that, whether the public servant has discharged the

duty improperly or not, he can be prosecuted, if he has

obtained or attempted to obtain any undue advantage for

the discharge of his official duty. The explanation 2

to the present Section 7 explains that a public

servant who has obtained or accepted or has attempted

to obtain an undue advantage for himself or another

person by abusing his position as a public servant or

by using his personal influence over another public

servant, or by any other corrupt or illegal means, is

liable for prosecution under Section 7, and Clause(ii)

to the explanation 2 provides that it shall be

immaterial whether the public servant has accepted or

obtained or attempted to obtain such undue advantage

directly or through a third party.

18. A reading of Section 7 after the amendment

shows that the law has now widened its scope to deal

with different instances of corruption or acceptance of

undue advantage for the performance of public functions

improperly or dishonestly, and any public servant who

has accepted or obtained such undue advantage even for

another person, directly or through a third party, or

on an offer to influence some other public servant OP(Crl.).No. 83 of 2017 24

under his control or whom he can influence, is

punishable under Section 7 after the amendment.

19. As regards the Sub Clause(iii) of Clause(d) of

Section 13(1) prior to the amendment of 2018, there was

some confusion, and some issues came up for judicial

adjudication as to whether the said Sub Clause(iii)

deals with any offence requiring mens rea. This Court

had come across many instances of public servants being

baselessly and unnecessarily prosecuted on some

allegations under the former Sub Clause(iii) that by

his conduct as a public servant, or by the discharge of

functions as a public servant, he has caused loss to

the Government, or he has caused advantage or profits

to some other person. The present amendment has taken

away the Clause(d) with the sub clauses, and the

different instances formerly covered by Clause(d), are

now, in a modified form, brought under the present

Section 7 which contains three clauses to deal with

different instances of corrupt acts of public servants.

20. The Amendment Act has also introduced

Clause(d) to Section 2 of the Act to define "undue

advantage", and the present definition is that any

gratification whatever, other than legal remuneration OP(Crl.).No. 83 of 2017 25

can be treated as undue advantage. The Amendment Act

has also added an explanation to the Clause(d) that

the word "gratification" is not limited to pecuniary

gratifications or to gratifications estimable in money,

and that legal remuneration is not restricted to

remuneration paid to a public servant, but includes all

remuneration which he is permitted by the Government,

or the organisation which he serves, to receive. Thus,

it can be seen that the explanation to Clause(b) has

expanded the scope of gratification. Any

gratification or advantage or any benefit, though not

estimable in money can be treated as undue advantage

for the purpose of Section 7. The former concept was

that the advantage or benefit derived by the public

servant for himself or any other person shall be some

valuable thing or pecuniary advantage. The amendment

has now widened the scope, to bring any sort of

advantage or benefit derived by the public servant for

himself or for any other person, within the scope of

Section 7, irrespective of whether the advantage

derived or obtained by him is pecuniary advantage, or

something estimable in money. The amendment has brought

a new Section 7A, and the Sections 8 to 10 of the PC OP(Crl.).No. 83 of 2017 26

Act now stand re-drafted. I feel it not necessary to go

in detail into those sections. For dealing with the

main instances of corruption or acceptance of undue

advantage or illegal gratification, it would suffice

that the changes introduced in the former Sections 7

and 13 by the amendment are discussed in detail.

Section 20 of the PC Act dealing with presumption in

cases of acceptance of illegal gratification also now

stands re-drafted. The original Section 24 granting

protection to persons who offered or agreed to offer

any gratification or any valuable thing to public

servants stands now deleted.

21. The Amendment Act of 2018 has introduced a new

Section 17A in the PC Act with the object of giving

protection to public servants who have done or ordered

or approved administrative actions or have taken

decisions as public servants in the bonafide discharge

of their official functions. This amendment in the form

of a new Section was necessitated in the unfortunate

circumstance where even honest public servants who

discharged their functions without any malafide or

malpractice or dishonesty happened to be indiscreetly

prosecuted under the P.C Act by different prosecuting OP(Crl.).No. 83 of 2017 27

agencies simply on the ground of some malfeasance on

their part, or some lack of diligence or circumspection

on their part, irrespective of whether the said act has

caused undue benefit or gain to any other person with

the knowledge or connivance of the public servant.

There were occasions where our public servants and even

administrators, hesitated or feared to do their

functions boldly and confidently due to fear of being

prosecuted unnecessarily for political or personal

ends, or for nothing done by them dishonestly.

22. The present Section 17A introduced by the

amendment provides that no police officer shall conduct

any enquiry or investigation into any offence alleged

to have been committed by a public servant under the PC

Act, where the alleged offence is relatable to any

recommendation made or decision taken by such public

servant in the discharge of his official functions or

duties, without the previous approval of the officer or

the authority concerned. Clause(a) provides that in the

case of a public servant who is or was employed, in

connection with the affairs of the union at the time

when the offence was alleged to have been committed,

the previous approval of the Central Government shall OP(Crl.).No. 83 of 2017 28

be obtained. Clause(b) provides that in the case of a

public servant who is or was employed, in connection

with the affairs of a State, at the time when the

offence was alleged to have been committed, the

approval of the State Government shall be obtained

before proceeding for enquiry or investigation.

Clause(c) provides that in the case of any other person

who comes within the definition of public servant

previous approval of the authority competent to remove

him from his office, at the time when the offence was

alleged to have been committed, shall be obtained.

23. While providing such protection to public

servants in connection with the bonafide discharge of

duties, the first proviso to the section provides that

in the case of arrest of a public servant on the spot

on the charge of accepting or attempting to accept any

undue advantage, no such approval shall be necessary.

Thus, trap cases are excluded from the operation of

Section 17A.

24. A reading of the present Section 17A will show

that the object of the section is to protect public

servants from hasty or baseless or indiscreet

prosecutions without enquiring into the circumstance in OP(Crl.).No. 83 of 2017 29

which the alleged administrative or official act was

done by the public servant, or whether the malfeasance

or malpractice alleged against the public servant would

involve any element of dishonesty or illegality or

impropriety by way of accepting any undue advantage.

Section 19 of the Act dealing with previous sanction

for prosecution has undergone some changes by the

amendment of 2018, I feel it not necessary to go into

those aspects in this proceeding.

25. As discussed in the foregoing paragraphs, it

can be seen, on an examination of the various

provisions of the PC Act, as it stands now amended by

the Amendment Act of 2018, that law is now definite and

specific as to how and when a public servant can be

prosecuted on the allegations of corruption, what all

instances of misconduct and corruption are covered by

the law after the amendment, in what all circumstances

a prosecution is possible against a public servant, and

what is the protection granted to public servants under

the law from baseless, vexatious and indiscreet

prosecutions.

26. On a reading of the complaint in this case, I

do not find any instance of misconduct or corruption, OP(Crl.).No. 83 of 2017 30

as defined under Section 13 (1) of the P.C Act as it

stood prior to the Amendment of 2018, either in the

form of acceptance of illegal gratification or in the

form of misuse or abuse of powers, or by way of any

act done dishonestly or illegally or unlawfully with

the object of causing some sort of monetary gain or

pecuniary advantage, to any person. The Government

collectively took a decision to grant promotion to

four Police Officers, and this was approved and

maintained by the successor Government also. There is

no reason why the 2nd respondent filed complaint against

the Chief Minister and the Home Minister when the

promotion was granted collectively by the Cabinet.

Anyway, whatever be the circumstance of promotion, or

if at all, there was any irregularity in the

promotion granted by the Government, it is a collective

decision taken by the Government in the exercise of the

prerogative under the law, and if anybody has grievance

as regards the promotion given to any officer, the

right remedy is to approach the competent judicial

Forum. It cannot be the subject matter of an

investigation under the P.C Act.

27. At the initial stage of this proceeding, the OP(Crl.).No. 83 of 2017 31

VACB maintained a stand that there was something to

investigate. But later, the VACB submitted a

statement of objection that there is no scope at all

for a prosecution in this case under the P.C Act and

that what is involved is only some irregularity in the

matter of promotion. The report of preliminary enquiry

made by an Inspector was produced before this Court.

In the said report, he has concluded that there is no

scope for a prosecution under the P.C Act, but he has

made a recommendation to the Government to review the

promotion given to the four Police Officers, and he has

also advised that in future, promotion to the DGP rank

shall be made in accordance with the Rules. It

appears that the Inspector who submitted such a report

assumed supervisory powers to make such a

recommendation to the Government. An Inspector is not

expected to make such recommendations, in a manner

criticising the Government.

28. Though the VACB took a vigorous stand at the

initial stage that the matter requires investigation,

the VACB later wisely realised that the decision of

the Government to grant promotion to the Senior Police

Officers cannot be the subject matter of investigation OP(Crl.).No. 83 of 2017 32

under the P.C Act. Accordingly, the VACB submitted a

statement in court, dated 7.3.2017, that the issue of

promotion is purely an administrative matter of the

Government, and that the issue does not involve

elements of corruption or misconduct for a prosecution

under the P.C Act. Thus,the VACB has fairly conceded

now that there is no scope for investigation in this

case under the P.C Act.

29. On a perusal of the entire materials including

the complaint made by the 2nd respondent before the

court below, I find that the 2 nd respondent brought the

complaint without any basis, or just to harass the

public servants, or for publicity, or to make gain out

of it. The impugned order is liable to be set aside,

and the complaint brought by the 2nd respondent without

any basis, or maliciously, is liable to be rejected.

30. When the Court came across some instances of

wrong exercise of powers by the VACB under the P.C Act,

1988, the court thought of issuing some guidelines to

the VACB and the Police regarding the nature and the

scope of the functions of the VACB and the Police under

the P.C Act,1988. This Court also felt the absolute

necessity of a legislation to prevent vexatious OP(Crl.).No. 83 of 2017 33

litigations and criminal prosecutions. Accordingly,

the Government was directed to report whether the

Government has the urge and determination to bring such

a uniform law in Kerala for the protection of citizens

and public servants. It appears that the Government

has not so far thought of making such a law though

report was filed that appropriate measures would be

taken. We do not have any uniform law in Kerala to

prevent vexatious litigations. Though a Bill was

introduced in 1994 as the Kerala Vexatious Litigation

(Prevention) Bill, it unfortunately lapsed. Now it is

very easy for the Government to bring such a

legislation as already proposed in 1994, with

necessary amendments and modifications, if required,

in the changed circumstances. Presently we have only

the Vexatious Litigation (Prevention) Act 1949

(Madras) which will have limited application in Kerala.

The said Act will not apply to the parts of Kerala

other than the erstwhile Malabar area. In Advocate

General v. T.A Rajendran [1998 (1) KLT 305], a Division

Bench of this Court led by the then Hon'ble Chief

Justice held thus in paragraph 8 of the judgment.

"Law to prevent vexatious litigation OP(Crl.).No. 83 of 2017 34

has been in force in the State of Kerala only in the Malabar area for the last 31 years. After the new State of Kerala came into existence, no steps have been taken so far to enact a law to prevent vexatious litigation applicable throughout the State. Prevention of vexatious litigation is a very laudable object. People must resort to courts for vindicating justice and not for harassing others. The tendency of abusing the process of the court and harassing the innocent is on the increase.

It is incongruous that law to prevent vexatious litigation is in force only in a part of the State. We would therefore like to invite the attention of the Legislature of the State to the urgent necessity of enacting a uniform law to prevent vexatious litigation applicable to the entire State of Kerala."

31. In Jose V. Madhu (1994 (1) KLT 855], this

Court had observed the necessity of Rules to be framed

by the High Court. Accordingly, some Rules were framed

and forwarded to the Government. Recently, the High

Court received a reply from the Government that the

matter has been referred to the Law Reforms

Commission. The 2nd respondent is a person who has

brought about 45 complaints against different persons. OP(Crl.).No. 83 of 2017 35

It is here, the necessity of a legislation assumes

importance. It is high time we made a law for the

prevention of vexatious litigations. This Court hopes

and expects that the Government of Kerala would take

the matter very seriously and take necessary steps

immediately to bring such a legislation.

32. Finding the necessity of some guidelines to

the VACB and the Police Department generally in the

matter of discharge of functions under the P.C Act,

this Court directed the parties in this proceeding

including the Government to furnish the draft

guidelines, to help the court in formulating the

guidelines. Nobody has furnished the required draft

guidelines. Even while stressing the necessity of a

law to prevent vexatious litigations, this Court would

urge and direct the whole Police Department including

the VACB that whenever any instance of corruption or

criminal misconduct or any sort of malpractice

involving elements of corruption is brought to notice

by complaint or otherwise, strict measures and actions

shall be taken, and the persons involved in such acts

and activities of corruption or misconduct must

definitely be prosecuted. There shall not be any sort OP(Crl.).No. 83 of 2017 36

of compromise when such elements of corruption or

misconduct, or any malpractice involving such

corruption is noticed or revealed.

33. Though the parties have not responded to the

call of the court to furnish draft guidelines, this

court feels that some directions are necessary in the

matter.

34. As already observed, the VACB or the Police

can step in for necessary action including

investigation under the P.C Act, only when a definite

offence under the P.C Act is revealed and disclosed,

and the allegations of such corruption or misconduct

are substantiated by materials. The VACB or the

Police and also the Special Courts functioning under

the P.C Act must be able to identify false or vexatious

complaints brought for publicity or for personal gain,

and genuine complaints brought for honest prosecution

on the basis of definite materials substantiating the

allegations of corruption and misconduct. The VACB and

the Police are cautioned that if any unnecessary

enquiry or investigation proceeds on baseless

complaints, that will cause harassment to the public

servants, and it will have atrocious consequences OP(Crl.).No. 83 of 2017 37

causing blemish on the entire career of public

servants.

35. There was an occasion where the Annual Budget

and the Finance Bill passed by our Legislature was

challenged by way of complaint before the VACB. It is

quite unfortunate and alarming that without

understanding the scope of an enquiry or

investigation as regards the Budget or the Finance

Bill passed by the Legislature, the VACB straight away

proceeded for enquiry and investigation. The issue

came up before this Court in Crl.M.C No.1977/2017. The

legality of the investigative actions of the VACB on a

complaint complaining elements of corruption in the

Budget and the Finance Bill was challenged in the said

proceeding before this Court. It was concerning the

Budget and the Finance Bill passed by the former

Government. Finding that such an investigation would

amount to investigative excess or Police action without

authority, the Deputy Superintendent of Police who

registered the said F.I.R was directed to appear in

court and explain how such a crime happened to be

registered and also under what authority it was

registered. While making such a direction, this Court OP(Crl.).No. 83 of 2017 38

also observed that the VACB cannot in any circumstance

investigate into the wisdom of the legislative assembly

and probe into the vitiating elements or impropriety in

a law passed by the Legislature. Anyway, when the

court made such a direction, the VACB realised the

wrong committed by them, and the Deputy Superintendent

of Police submitted an explanation that the VACB has

realised the very serious mistake committed in

registering such a crime, and that steps have been

taken to refer the crime. Accepting that report, the

matter was disposed of by this Court on 6.4.2017. The

legislature can pass any law as authorised by the

Constitution, and it will definitely be a product of

the majority decision of the House or the wisdom of the

House. If at all, such a legislation involves

anything for interference on the grounds accepted by

the Constitution of India, the constitutional courts

will look into the matter, examine the law, and take

necessary decision. Such areas cannot be intruded

into by the investigating agencies. Our set up is a

democracy governed by rule of law, and governance is

made by a Government elected by the people. The

investigating agencies cannot in any circumstance probe OP(Crl.).No. 83 of 2017 39

into the propriety of the law passed by the

legislature.

36. In the instant case, what is involved is the

administrative decision of the Government to grant

promotion to some Police Officers. In any area where

administrative decision or policy decision of the

Government is involved, that cannot be the subject of

investigation under the P.C Act. If the decision of

the Government is against the existing laws, or

against public policy, or against the society at

large, we have a constitutional set up to examine such

things, take decisions and correct the wrong decisions

or actions. Anyway, such policy decisions or

administrative decisions or administrative matters

cannot be subjected to enquiry or investigation under

the P.C Act, unless it involves any individual case of

corruption or criminal misconduct as defined under

the P.C Act. In individual instances of

administrative actions by public servants the Police

machinery can conduct enquiry or investigation under

the P.C Act subject to the new Section 17A, if the act

or conduct of the public servants involves elements

of corruption or misconduct as defined under the law. OP(Crl.).No. 83 of 2017 40

37. It appears that there is a misconception among

the officers of the VACB and the Police that loss

caused to the Government or the Public Exchequer by a

public servant in the discharge of his official

functions is a ground for proceeding against him under

the P.C Act. This misconception is the result of the

wrong understanding of the scope and object of the

Prevention of Corruption Act. For a prosecution against

a public servant on the allegation of corruption or

criminal misconduct as meant and defined under the P.C

Act, the public servant must have either accepted

illegal gratification or undue advantage for himself or

any other person for anything done as part of his

official functions as a public servant, or he must have

dishonestly or fraudulently misappropriated money from

public funds, or must have otherwise converted for his

own use any property entrusted to him, or under his

control as a public servant in the discharge of his

official functions, or he must have enriched himself

illicitly, or must have acquired pecuniary resources

or property disproportionate to his known source of

income.

38. There can be instances where some benefit or OP(Crl.).No. 83 of 2017 41

advantage is caused to a person, or such benefit or

advantage is derived by a person by the wrongful acts

of a public servant or due to his carelessness in the

discharge of his duty or due to malfeasance. In such

cases, there may be corresponding loss to the

Government or the Public Exchequer also. What matters

in such cases, is not whether the public servant has

just caused loss to the Government or the Public

Exchequer, but whether there has been any vicious

link or nexus between him and the person benefited, and

whether the public servant caused such benefit to the

other person with the knowledge that his act will or

may cause such benefit and cause loss to the

Government or the Public Exchequer. In short, what is

required for a prosecution is not simply that the

Government or any Department of the Government or any

Public body has sustained any loss. While proving such

loss, the prosecution will have also to prove that a

corresponding gain was made by the public servant or

somebody else in whom he is interested or with whom he

has vicious nexus. Just because some loss was caused

to the Government or the Public Exchequer or to any

public sector undertaking or corporation or public OP(Crl.).No. 83 of 2017 42

body, by the discharge of functions of a public

servant, he cannot be prosecuted under the P.C Act. In

short, mere instances of malfeasance or wrong

administration or wrong discharge of functions or

dereliction of duty will not cause a prosecution under

the P.C Act.

39. The VACB will have to make enquiry into

different allegations of corruption or misconduct or

malfeasance or misfeasance in public offices. In many

instances, such enquiry may reveal carelessness or

breach of duty or malfeasance or misfeasance or wrong

discharge of duty by public servants. In such

instances where the VACB could not detect any instance

of corruption or criminal misconduct as defined and

meant under the law, the VACB can report the facts to

the Government or the concerned authority, and on

getting such report, the Government or the concerned

authority can initiate disciplinary action against the

erring public servant. In all cases of malfeasance or

misfeasance or wrong administration, or in all cases of

loss caused to the Government by the discharge of duty

by public servants, a prosecution under the P.C Act

cannot be initiated. If it is only a case of OP(Crl.).No. 83 of 2017 43

dereliction of duty or wrong administration or

malfeasance or misfeasance detected on enquiry, only

disciplinary action can be initiated against the erring

public servant, and if any public servant has caused

any wrongful loss to the Government by the discharge of

his official functions improperly or wrongfully, or as

the result of wrong administration or malfeasance or

misfeasance, no doubt, the Government or the

appropriate authority can recover the loss from him,

and also initiate disciplinary action against him.

40. As already observed, investigation under the

the P.C Act cannot be conducted as regards policy

decisions or administrative actions of the Government.

Of course, in such cases where the discharge of

function or administrative action or decision involves

any individual case of corruption or criminal

misconduct as defined and meant under the law, the VACB

or the Police can make investigation. The VACB in

the State of Kerala is only a branch of the Police

Department. It does not have any exclusive province or

independent existence because it is not a statutory

creation like the Central Bureau of Investigation (CBI)

or the National Investigating Agency (NIA. Even while OP(Crl.).No. 83 of 2017 44

the CBI or the NIA is governed by the Act by which it

is formed, they are also governed by the provisions of

the Code of Criminal Procedure and the Indian Evidence

Act in the matter of investigation or prosecution. The

VACB is also governed by the provisions of the Code of

Criminal Procedure and the Indian Evidence Act as the

entire Police Department is governed by such laws.

The CBI or the NIA or the VACB cannot have any special

privilege or prerogative in the matter of

investigations because every investigation is governed

by the Code of Criminal Procedure, which is applicable

to all prosecuting agencies. Of course, there is the

Vigilance Manual for internal guidance. This Vigilance

Manual does not have the force of law, and it will not

get legal sanctity because it is only a Manual for the

guidance of the officers of the VACB in the discharge

of their functions. Any provision of the Manual

against the provisions of the law of the land like the

Code of Criminal Procedure, or the Indian Evidence Act,

will not have any value or application in the matter of

investigation or prosecution. This shall be borne-in-

mind by the officers of the VACB.

41. In the foregoing paragraphs, this Court has OP(Crl.).No. 83 of 2017 45

discussed the scope of the functions of the VACB in

Kerala and the Province wherein they are expected to

discharge their functions. Investigation of corruption

cases or cases under the P.C Act must be seriously

dealt with as a specialised area where high competence,

caliber, integrity and honesty of the officers is

required. In the investigation in corruption cases,

the concept of participative supervision must be

applied. This means that every investigation must be

a team work, monitored and supervised by the superior

officers. Crimes can be registered and investigation

can be made under the P.C Act only in cases where

elements of corruption or misconduct are revealed or

disclosed. If what is involved is only wrong

administration or discharge of functions without

obtaining or causing any undue advantage or monetary

benefit, what is possible is only disciplinary action

and departmental proceedings including steps to recover

the amount of loss caused by the public servant. The

VACB is not expected to make recommendations to the

Government in the form of directions as is done in this

case by the Inspector of the VACB in his report of

preliminary enquiry. Whenever the necessity of OP(Crl.).No. 83 of 2017 46

disciplinary action including recovery of money is

felt by the VACB on enquiry or investigation, this fact

can only be reported to the Government, but the VACB

cannot make recommendatory directions to the Government

as was done in this case by the Inspector.

Legislation is a sovereign function. Executive actions

of the Government in carrying out the decisions of the

Cabinet will also come within the purview of sovereign

functions. Such functions cannot be the subject

matter of enquiry or investigation under the P.C Act,

unless the executive action or administrative action

individually involves elements of corruption or

criminal misconduct on the part of any public servant.

The things discussed in the foregoing paragraphs can be

taken as guidelines for the discharge of functions by

the VACB in Kerala and also the Police Department,

under the P.C Act, and this Court hopes that in

future, the Police Officers and also the officers of

the VACB will follow the guidelines in the discharge of

their official functions.

In the result, with the above guidelines to the

VACB in Kerala and also the Police Department generally

for the discharge of functions under the P.C Act, this OP(Crl.).No. 83 of 2017 47

Original Petition is disposed of, by setting aside the

impugned order passed by the court below and also by

rejecting the complaint made by the 2nd respondent in

the court below.

Sd/-

P.UBAID rkj/ma JUDGE

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1- CERTIFIED COPY OF THE COMPLAINT DATED 7TH NOVEMBER 2016 FILED BY PAICHIRA NAVAS BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM.

EXHIBIT P2- TRUE COPY OF THE NEWS REPORT APPEARED IN TIMES OF INDIA DAILY DT.12/01/2017.

EXHIBIT P3- CERTIFIED COPY OF THE IMPUGNED ORDER DATED 30/12/2016 MADE IN ORDER IN CMP.1153/2016 OF THE ENQUIRY COMMISSIONER AND SPL. JUDGE, THIRUVANANTHAPURAM.

EXHIBIT P4- TRUE COPY OF THE GOVERNMENT ORDER

NO.G.O.(RT)1392/2016/GAD DT.01/03/2016.

EXHIBIT P5- TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(RT)8476/2015/GAD DATED 24/11/2015.

RESPONDENTS EXHIBITS :

OP(Crl.).No. 83 of 2017 48

ANNEXURE R1(a) : TRUE COPY OF THE PROCEEDINGS DATED 3.8.2016 OF THE COUNCIL OF MINISTERS

ANNEXURE-I : TRUE COPY OF THE QUICK VERIFICATION REPORT NO.QV 01/2017/SIU-I/POL DATED 15.2.2017 SUBMITTED BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM

ANNEXURE R1(b) : TRUE COPY OF NOTE FOR THE COUNCIL OF MINISTERS IN RESPECT OF PROMOTION OF 5 IPS OFFICERS OF 1986 BATCH IN THE MATTER OF CANCELLATION OF GOVERNMENT ORDER DATED 01.03.2016.

ANNEXURE R1(c) : TRUE COPY OF THE LIST OF COMPLAINTS AND THE PERSON AGAINST WHOM THE COMPLAINT HAVE BEEN FILED AND THE STATUS OF THE COMPLAINTS

ANNEXURE R1(d) : TRUE COPY OF THE LIST OF COMPLAINTS FILED BY THE SECOND RESPONDENT BEFORE THE KERALA LOK AYUKTA

ANNEXURE R1(e)TRUE COPY OF THE COMMUNICATION DATED 12.06.2017 ISSUED BY THE DIRECTOR, VACB AND THE LIST CONTAINING THE CMPS AND PETITIONS FILED BY THE 2ND RESPONDENT BEFORE THE SPECIAL COURTS (Vigilance) AND VACB.

ANNEXURE R1(a) : TRUE COPY OF THE GOVERNMENT ORDER G.O (RT) NO.121/2017/VIG. DATED 17.7.2017

ANNEXURE R1(b) : TRUE COPY OF THE ORDER NO.M1- 19307/2017 DATED 06.12.2017 :

/TRUE COPY/ P.S to Judge