2025:KER:30645 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 OP(CRL.) NO.375 OF 2022 PETITIONER: R.LEKSHMI AGED 46 YEARS W/O.ARUN. S., ASWATHY, PALLICKAL P.O., KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691566 BY ADVS. R.BINDU (SASTHAMANGALAM) G.RAJAGOPAL (KUMMANAM) RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 THE DIRECTOR, VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM., PIN - 695001 3 R.S. RAJEEV, VADAKKEKARA PUTHEN VEEDU, VIKAS NAGAR, CHEKKALAMUKKU, SREEKARIYAM, THIRUVANANTHAPURAM, PIN - 695017 BY ADVS. GOVERNMENT PLEADER Sinu G Nath THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:30645 2 O.P.(Crl) No.375 of 2022 P.G. AJITHKUMAR, J. ----------------------------------------------------------- O.P.(Crl) No.375 of 2022 ----------------------------------------------------------- Dated this the 7th day of April 2025 J U D G M E N T One among the questions decided by a Division Bench of this Court in Reference Order dated 24.03.2025 in Crl.M.C.No.4677 of 2022 is the following: “(a) When the Hon'ble Supreme Court has in Jayant referred to the proposition laid down in AnilKumar [(2013) 10 SCC 705] and laid down a dictum that an order directing investigation is not tantamount to taking cognizance, whether it is possible to construe sanction under Section 19 of the P.C. Act as a prerequisite for passing a direction for investigation under Section 156(3) of the Cr.P.C overlooking that the law laid down by the Supreme Court in Jayant [(2021) 2 SCC 670] aligns with the ratio laid down by the Constitution Bench and Larger Benches of the Supreme Court.” 2. In answer to the said question, the Division Bench held as follows: “34. In the case on hand, we find that Anil Kumar (supra) was approved and followed by Narayana Swamy (supra) and the correctness of the same was considered in Manju 2025:KER:30645 3 O.P.(Crl) No.375 of 2022 Surana (supra). However, in Manju Surana (supra), the non-consideration of R.R.Chari (Three-Judge Bench decision) in Anil Kumar (Two-Judge Bench decision) impelled the Apex Court to doubt the precedential value of Anil Kumar (supra) before referring the case to Larger Bench. As noted in Manju Surana (supra), the question was essentially whether in cases of offences under the PC Act, a different import has to be read qua the power to be exercised under Section 156(3) of the Cr.P.C and whether on account of Section 19 of the PC Act, the scope of enquiry under Section 156(3) of the Cr.P.C. can be said to be one of taking “cognizance” thereby requiring the prior sanction in case of a public servant. Another question posed was whether such a purport can be imported into Chapter XII Cr.P.C. while directing an investigation under Section 156(3) of the Cr.P.C. merely because a public servant was involved. In Jayant (supra), the issue that came up for consideration was different and is in respect of a proceeding under the MMDR Act. We are of the view that since Anil Kumar and Narayana Swamy (supra), explicitly and directly dealt with Section 19 of the PC Act and answered the question of whether any direction can be passed by the Magistrate under Section 156(3) of the Cr.P.C. alleging offence under PC Act without prior sanction, the said judgment will have to be followed as a binding precedent in matters concerning the Prevention of Corruption Act, 1988 and particularly in insisting for sanction under Section 19 prior to referring the matter to the police under Section 156 (3) of the Code. It also needs to be borne in mind that in Jayant (supra) the 2025:KER:30645 4 O.P.(Crl) No.375 of 2022 Hon’ble Supreme Court had only followed Anil Kumar (supra) and the observations made in the said judgment and not doubted the ratio or the principles laid down therein. Furthermore, the matter is now pending consideration of a Larger Bench consequent to the referral made in Manju Surana (supra). We are of the view that Anil Kumar (supra) would still hold the field as held in Mohammed (supra). The first and second questions are answered accordingly.” 3. Holding so, the Division Bench answered the aforesaid question that the courts are bound to follow the principle laid down in Anilkumar (supra). In this case, respondent No.3 filed Crl.M.P.No.778 of 2018 before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram where the offences punishable under the Prevention of Corruption Act, 1988 (PC Act) have been alleged. The Special Court directed the 2nd respondent to conduct a quick verification and submit a report. Ext.P7 report was accordingly submitted. After considering the said report, the Special Court as per Ext.P1 order directed the 2nd respondent to register a crime and conduct an investigation as directed by the Apex Court in Lalita Kumari v. Government of U.P [2013 (4) KLT 632]. The question whether prior approval from the competent authority as insisted 2025:KER:30645 5 O.P.(Crl) No.375 of 2022 in Section 17A of the PC Act was required has been answered by the Special Court in negative by placing reliance on Shankara Bhat and others v. State of Kerala and others [2021(5) KHC 248]. 4. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor (Vigilance). 5. The question whether in the view of finding of the Special Court, that prior approval under Section 17A of the PC Act has only secondary importance inasmuch as the Special Court directed to conduct an investigation in account of which the question, whether sanction under Section 19(1) of the PC Act was necessary before ordering investigation under Section 156(3) of the Code of Criminal Procedure, 1973 (Code) crops up immediately. Of course, the learned counsel for the petitioner has a contention that even the finding on the question of approval under Section 17A of the PC Act is incorrect. If the question regarding lack of sanction under Section 19(1) is answered in favour of the petitioner, the other question pale into insignificance, and therefore I shall proceed to consider the 2025:KER:30645 6 O.P.(Crl) No.375 of 2022 question concerning sanction under Section 19(1) of the PC Act first. 6. Although a preliminary enquiry was conducted and a report submitted, the Special Court by falling back on the complaint filed by the 3rd respondent, ordered to register a crime and conduct an investigation. Consequently, Ext.P6 complaint was registered. The Division Bench in the reference order dated 24.03.2025 made it clear that whenever an investigation is ordered on a private complaint involving offence under the PC Act, sanction under Section 19(1) is necessary. Indisputably, no sanction under Section 19 of the PC Act was obtained before the Special Court ordering an investigation as per Ext.P1 order, obviously, invoking the provisions of Section 156(3) of the Code. In the circumstances, order directing registration of the crime and an investigation by the Special Court based on the complaint filed as Crl.M.P.No.778 of 2018 is unsustainable in law for want of sanction under Section 19(1) of the PC Act. It is against the law laid down by the Apex Court in Anilkumar [(2013) 10 SCC 705]. Hence Ext.P1 order is set aside leaving 2025:KER:30645 7 O.P.(Crl) No.375 of 2022 the parties to work out their remedies in accordance with law and leaving open all other contentions of the parties. Original Petition is allowed in the above terms. Sd/- P.G. AJITHKUMAR JUDGE PV 2025:KER:30645 8 O.P.(Crl) No.375 of 2022 APPENDIX OF OP(CRL.) No.375/2022 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE ORDER IN CRL. M.P. NO. 778/2018 DATED 12-07-2022 Exhibit-P2 TRUE COPY OF THE GOVERNMENT ORDER DATED 31-03-2015 Exhibit-P3 TRUE COPY OF THE LETTER DATED 31-03-2015 Exhibit-P4 TRUE COPY OF THE DELIVERY ORDER DATED 17-06-2015 Exhibit-P5 TRUE COPY OF THE ACCEPTANCE CERTIFICATE DATED 17-06-2015 Exhibit-P6 TRUE COPY OF THE COMPLAINT DATED 30-07- 2018 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE(VIGILANCE), THIRUVANANTHAPURAM Exhibit-P7 TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 10-10-2019 Exhibit-P8 TRUE COPY OF THE SUCCESSOR NOTE DATED 18-06-2015