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Moideenkutty v. State of Kerala. [2003 (2) KT SN 56 : 2003 (1) KLJ 728 ] JUDGMENT 1. The appellant in this Writ Appeal is the petitioner in O.P.No. 15632 of 2000. While the appellant was working as Forester in the Forest Department of the Government of Kerala, he was charge sheeted in connection with certain irregularities allegedly committed during 1982-83 in the Social Forestry Units, Palakkad and Pattambi and certain irregularities allegedly committed during 1984 in the Social Forestry Unit, Palakkad. As per the charge sheet, the charges levelled against the appellant were: (a) Misappropriated government money without actually doing the works as per estimate provisions. (b) Manipulated government records to suit personal gain and (c) Supervisory failure in proper execution of departmental works resulted in the failure of many nurseries, causing heavy loss to the government to the tune of Rs.61,274.27. The appellant submitted his explanation denying the charges against him. After detailed enquiry, the enquiry officer found that the charges against the appellant had not been proved. Accepting the report of the enquiry officer (Custodian / Conservator of Vested Forests, Kozhikode), the Chief Conservator of Forests dropped all further proceedings against the appellant. Thereafter the appellant retired from service on superannuation on 30-09-1985. Almost 14 years after his retirement from service on superannuation, the appellant received Ext. P2 summons dated 3rd March, 1999 from the Court of the Enquiry Commissioner and Special Judge, Kozhikode in Calendar Case No.4 of 1999 requiring him to appear before that Court on 13-4-1999 to answer to charges under S.5(2) read with 5(1)(c) & (d) of the Prevention of Corruption Act, 1947 and S.409, 465, 477(A) and 120B of the Indian Penal Code. Later he was served with Ext. P1 charge sheet dated 12-1-1998 which was pursuant to F.I.R.No.2 of 1992 dated 31-8-1992 of the Vigilance and Anti Corruption Bureau, Kozhikode. The charge sheet against the appellant and the coaccused Mukundan read as follows: "The charge against Al; Sri. Mukundan, S/o. Govindankutty Nair, No. 343, Chandra Nagar Coloney, Palaghat 7 and A2, Sri. P.I. Moideenkutty, S/o.

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Ismail, Poolakkal House, (PO) Edathara, Palakkad District is that while they were working as public servants in the capacities of Range Officer and Forester respectively at Social Forestry Range, Palakkad engaged in a criminal conspiracy as a result of which they had raised nurseries at Erimayur, Govt. College, Chittoor and Moolathara during 1983 by carrying out the work at a lower rate than the estimate rate directly by Al and A2 without engaging convenors as reported by them and by not executing the whole work charged as per vouchers and thereby Al and A2 dishonestly and fraudulently misappropriated Government money to a tune of Rs. 86,386.79/- by making forged and bogus vouchers and wilfully and with intent to defraud, falsifying the records maintained by them and therefore by corrupt or illegal means obtained for themselves a pecuniary advantage as stated above and thereby both accused committed offences punishable under S.5(2) R/W. 5(1)(c) and (d) of P.C. Act 1947 and S.409, 465, 477(A) and 120(b) of I.P.C. Thereupon the appellant filed O.P. No. 15632 of 2000 praying for quashing the entire proceedings initiated against him pursuant to Ext. P1 Charge sheet and Ext. P2 Summons issued under S.61 of Criminal Procedure Code and for prohibiting the Enquiry Commissioner and Special Judge, Kozhikode from proceeding with C.C. No. 4 of 1999 against him. Along with the Original Petition, the appellant filed C.M.P. No. 25532 of 2000 praying for stay of all further proceedings in C.C. No. 4 of 1999 on the file of the Enquiry Commissioner and Special Judge, Kozhikode pending disposal of the Original Petition. While ordering notice to the respondent in the Original Petition and the C.M.P, the court passed an interim order on 6-6-2000 granting stay for two months. On 4-8-2000 the stay was extended for two weeks and on 17-8-2000 the stay was extended until further orders. However, C.M.P. No. 25532 of 2000 was posted before the court on 28-5-2002 and the court passed the following order: "Stay is vacated in the light of the decision of the Supreme Court that the proceedings pending on the file of the Enquiry Commissioner and Special Judge cannot be stayed. The petition is dismissed". Aggrieved by the said order dated 28-5-2002 vacating the stay and dismissing C.M.P. No. 25532 of 2000, the petitioner in the Original Petition and C.M.P. has filed this Writ Appeal. 2. It is not disputed that the decision of the Supreme Court referred to by the learned Single Judge in the impugned order dated 28-5-2002 is the decision in Satya Narayan Sharma v. State of Rajasthan, 2001 (3) KLT 599 (SC). It was a case in which the Trial Court had taken cognizance against the accused
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(appellant before the Supreme Court) for offences punishable under S.420, 467, 468 and 471 of the I.P.C. and S.5(2) of the Prevention of Corruption Act. The accused filed a Criminal Miscellaneous Petition in the High Court under S.482 of the Criminal Procedure Code for quashing the order passed by the Trial Court taking cognizance of the offences against him. The High Court granted stay of the trial. Having obtained a stay of the trial, the Criminal Miscellaneous Petition was adjourned from time to time and by that method the accused successfully delayed the trial for seven years. Ultimately, the Criminal Miscellaneous Petition was dismissed by the High Court. Challenging the order of the High Court dismissing the Criminal Miscellaneous Petition, the accused filed Criminal, Appeal No. 981 of 2001 before the Honourable Supreme Court. While dismissing the Criminal Appeal, the Honourable Supreme Court found that what happened in the case was happening in a large number of criminal cases. The Supreme Court observed that, when public servants are sought to be prosecuted under the said Act, by filing revisions under S.397 of the Criminal Procedure Code or by filing petitions under S.482 of the Criminal Procedure Code, stay of the trial was obtained and parties successfully managed to delay the trial. The supreme Court further observed that stays were granted by courts without considering and / or in contravention of S.19(3)(c) of the Prevention of Corruption Act. According to the Supreme Court, this had an adverse effect on combating corruption amongst public servants and it had therefore become necessary to reiterate the law. After considering the provisions contained in S.19, 22, 23 and 27 of the Prevention of Corruption Act, 1988 and S.397 and 482 of the Criminal Procedure Code, it was held that in view of the provisions contained in S.19(3)(c) of the Prevention of Corruption Act, 1988, the High Court cannot stay the proceedings under the Prevention of Corruption Act, 1988 or exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. On a careful reading of the separate judgments. On a careful reading of the separate judgement written by Honourable Mr. Justice S.N. Variava and Honourable Mr. Justice K.T. Thomas, we find that Their Lordships were considering the power of the High Court under the provisions of the Criminal Procedure Code, particularly S.397 and 482, to stay the proceedings under the Prevention of Corruption Act, 1988. Their Lordships did not consider the power of the High Court under Art.226/227 of the Constitution of India to stay the proceedings under the Prevention of Corruption Act, 1988. Nor did Their Lordships hold that in view of the provisions contained in S.19(3)(c) of the Prevention of Corruption Act, 1988, the High Court has no power under Art.226/227 of the Constitution of
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India to stay the proceedings under the said Act. Admittedly, O.P. No. 15632 of 2000 was filed under Art.226 and 227 of the Constitution of India and C.M.P. No. 25532 of 2000 was filed under R.150 of the Rules of the High Court of Kerala, 1971. The said R.150 is in respect of proceedings under Art.226 and 227 of the Constitution of India. Thus the stay granted by the learned Single Judge was in proceedings under Art.226/227 of the Constitution and not under the provisions of the Code of Criminal Procedure. Therefore, the learned Single Judge was not right in vacating the stay and dismissing C.M.P. No. 25532 of 2000 only on the basis of the decision of the Honourable Supreme Court in Satya Narayan Sharma v. State of Rajasthan (supra). Admittedly, the stay was vacated not on any other grounds. Hence, the impugned order of the learned Single Judge is illegal and liable to be set aside. 3. In the light of the decisions of the Honourable Supreme Court in State of Haryana v. Chaudhary Bhajan Lal and others, JT 1990 (4) SC 650 and M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others JT 1997 (8) SC 705, it is settled law that under Art.226/227 of the Constitution of India, the High Court can exercise its power of judicial review in criminal matters and that such power of judicial review can be exercised by the High Court either to prevent abuse of the process of any Court or to secure the ends of justice. Hence it cannot be disputed that the Original Petition filed by the appellant under Art.226 and 227 of the Constitution of India praying to quash the entire proceedings initiated against him pursuant to Exts. P1 and P2 and for prohibiting the Court of the Enquiry Commissioner and Special Judge, Kozhikode from proceeding with Calendar Case No. 4 of 1999 is maintainable. 4. S.19(3)(c) of the Prevention of Corruption Act, 1988 reads as follows: "(3) Notwithstanding anything contained in the Criminal Procedure Code, 1973, (2 of 1974), xx xx xx xx (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings". The above prohibition against granting stay of proceedings under the Prevention of Corruption Act cannot apply to the exercise of the power of the High Court to grant stay under Art.226/227 of the Constitution of India. The jurisdiction conferred on the High Court under Art.226/227 of the Constitution is part of the inviolable basic structure of the Constitution, as held by the Honourable Supreme Court in L. Chandra Kumar v. Union of India, AIR 1997
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SC 1125. Hence the power of the High Court under Art.226/227 cannot be curtailed or taken away by any statute like the Prevention of Corruption Act. It is also significant that the provisions contained in S.19(3) start with the non obstante clause, "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). Hence we hold that the prohibition under S.19(3)(c) of the Prevention of Corruption Act, 1988 can apply only to the exercise of the power of the courts under the Code of Criminal Procedure. 5. The main ground urged by the petitioner in O.P. No. 15632 of 2000 is that in view of R.3(c) of Part III of Kerala Service Rules as it stood prior to 4-12-1990, no judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re - employment, shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution. Admittedly, the charge against the appellant is in respect of the irregularities allegedly committed by him during 1982-83 and 1984. The appellant retired from service on superannuation on 30-9-1985. The F.I.R. was registered only on 31-8-1992 and the charge sheet was filed only on 12-1-1998. Hence, according to the appellant, in view of R.3(c) of Part III of the Kerala Service Rules at it stood prior to 4-2-1990 judicial proceedings in Calender Case No. 4 of 1999 on the file of the Court of the Enquiry Commissioner and Special Judge, Kozhikode could not have been validly instituted against him and therefore, the said proceedings are liable to be quashed. It is true that after the amendment of R.3(c) of Part III of the Kerala Service Rules, as per G.O. (P) No. 3612/90 / Fin. dated 25-6-1990 (SRO No. 1665/90) published in Kerala Gazette No. 48 dated 4-12-1990, the said rule authorises institution of judicial proceedings with the sanction of the Government against a government employee after his retirement in respect of a cause of action which arose or an event which took place more than four years before such institution. It is also true that the said amendment to R.3(c) of Part III of the Kerala Service Rules was brought into force with retrospective effect from 14th November, 1966. But according to the appellant, in spite of the retrospective amendment to R.3(c) of Part III of the K.S.R., the amended rule cannot be applied in his case as he had already retired from service on superannuation on 30-9-1985 and the amendment to the Rule was made, though with retrospective effect, only on 4-12-1990. In this regard, the appellant relied on the judgment of this Court in Natarajan v. Board of Revenue, 1995 (1) KLT 695. In the Original Petition, the appellant has also contended that since the alleged irregularities were committed 17 years ago and since the appellant retired from service 15 years ago and since the
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appellant is aged 71 years, dragging him to the Criminal Court now is violative of his fundamental right guaranteed under Art.21 of the Constitution of India. It has also been pointed out that the charge sheet against the appellant, in Calender Case No. 4 of 1999 pending before the Enquiry Commissioner and Special Judge, Kozhikode is based on the same allegations which were the subject matter of the departmental enquiry in which he was exonerated. In our view, there is considerable force in the above contentions of the appellant, and therefore, the appellant has made out a strong prima facie case in the Original Petition for staying the trial of the criminal case against him. Hence on merits, the petitioner in O.P. No. 15632 of 2000 was entitled to have the stay order continued till the disposal of the Original Petition. 6. In the above circumstances, the impugned order is set aside. Further proceedings in Calender Case No. 4 of 1999 pending against the appellant in the Court of the Commissioner and Special Judge, Kozhikode, will stand stayed till the disposal of the O.P. No. 15632 of 2000. The Registry is directed to post the O.P. No. 15632 of 2000 for final hearing on 7th April, 2003. 7. The Writ Appeal is disposed of in the above terms.

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