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R. Ramachandran Nair v. Deputy Superintendent, Vigilance Police And Another
Factual and Procedural Background
The Government of Kerala had attempted to establish a Sanskrit university since 1972. On 15-7-1991 the appellant was appointed Special Officer to create the university, and from 1-1-1994 to 30-6-1996 he served as its first Vice-Chancellor. Because the 42.5 acres of land allotted for the campus were water-logged paddy fields, the appellant oversaw earth-filling after consulting engineers and accepting the lowest tender.
An FIR (Crime No. 9 of 1996) was registered on 18-12-1996 alleging irregularities in the earth-filling and a wrongful pecuniary gain. A charge-sheet was filed only on 30-6-2005—8½ years later—without obtaining the previous sanction of the University Syndicate required by Section 50(2) of the Sree Sankaracharya University of Sanskrit Act, 1994. The appellant’s application for discharge was dismissed by the Special Judge, and his revision was dismissed by the Kerala High Court on 12-7-2010. He appealed to the Supreme Court.
Legal Issues Presented
- Whether, in the absence of previous sanction from the University Syndicate under Section 50(2) of the Sree Sankaracharya University of Sanskrit Act, the prosecution against the appellant can be sustained.
- Whether, on the factual merits—including delay, absence of personal gain and governmental decision to withdraw—the appellant should be discharged from the criminal proceedings.
Arguments of the Parties
Appellant's Arguments
- Section 50(2) of the Act makes prior sanction of the Syndicate mandatory; no such sanction was obtained, rendering the prosecution void.
- The State Government itself decided on 3-4-2006 to withdraw all cases, acknowledging the appellant acted in good faith and is protected by Section 50(3).
- On merits, the appellant consulted experts, accepted the lowest tender below the PWD estimate and caused no loss; the amount allegedly lost dropped from Rs 59,51,543 in the FIR to Rs 2,68,358 in the charge-sheet.
Respondents' Arguments
- The materials on record justify proceeding to trial; both the trial court and High Court rightly refused discharge.
- No exceptional circumstance exists for Supreme Court interference at the pre-trial stage.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
1. Statutory bar: Section 50(2) uses the term “shall,” making prior Syndicate sanction a mandatory pre-condition to any civil or criminal proceeding against a University officer. The appellant, as Vice-Chancellor, squarely falls within the provision. Because no sanction was obtained, the prosecution “cannot be launched or proceeded.”
2. Government’s own stance: A 3-4-2006 communication from the Principal Secretary directed withdrawal of all cases, expressly finding that the appellant acted in good faith and is protected by Section 50(3). The Court drew a permissible presumption under Section 114 of the Evidence Act that the Government consciously exonerated the appellant, yet no follow-up action was taken.
3. Merits of the allegations: The FIR alleged personal gain but the charge-sheet showed no such benefit and reduced the supposed loss to less than 5 % of the original estimate. The appellant had relied on expert advice, accepted the lowest tender and acted diligently. The unexplained 8½-year delay further undermined the prosecution.
4. Cumulative effect: Given the statutory bar, governmental decision, lack of evidence of personal gain and procedural delay, continuing the prosecution would be an abuse of process. The lower courts erred in refusing discharge.
Holding and Implications
APPEAL ALLOWED; ORDERS OF THE TRIAL COURT AND HIGH COURT SET ASIDE; APPELLANT DISCHARGED.
Direct consequence: all criminal proceedings in CC No. 31 of 2005 and related matters against the appellant are terminated. The judgment reiterates that, under Section 50(2) of the Sree Sankaracharya University of Sanskrit Act, prior Syndicate sanction is a jurisdictional prerequisite for prosecuting University officers. No broader precedent beyond this statutory interpretation was set.
P. Sathasivam, J.— Leave granted. This appeal is directed against the impugned judgment and order dated 12-7-2010 passed by the High Court of Kerala at Ernakulam in Criminal Review Petition 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.
Brief facts
2. The Government of Kerala was trying to establish a Sanskrit University in the State from the year 1972 onwards. On 15-7-1991, the appellant was appointed as the Special Officer for creating the first Sanskrit University in the State. On 16-1-1993, the State issued a government order directing the District Collector, Ernakulam to acquire the land for the establishment of the University.
3. The entire land of 42.5 acres, so acquired in Kalady (the holy birthplace 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 waterlogged paddy fields and any development work could be started only after it was filled up with earth.
4. Before starting the work of filling up, the appellant, who was functioning as the Chief Secretary to the 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 “the PWD”) who was actually brought to the site. The appellant filled 42.5 acres of waterlogged land with earth brought from distance. An amount of Rs. 5925 was spent for filling up of every one cent of the waterlogged land.
5. From 1-1-1994 to 30-6-1996, 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 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 Penal Code, 1860 (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.
6. 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 the impact of rains during six monsoons during that time, the field had got thoroughly consolidated.
7. On 30-6-2005, 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 FIR 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.
8. In the meanwhile, on 3-4-2006, 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 appellant is eligible for the protection under Section 50(3) of the Act.
9. 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 the Enquiry Commissioner and Special Judge, Thrissur for discharge. By the order dated 29-8-2009 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.
10. Against the said order, the appellant preferred Criminal Revision Petition No. 1606 of 2010 before the High Court of Kerala. By the order dated 12-7-2010 the High Court dismissed the revision filed by the appellant herein. The said order is under challenge in this appeal.
11. Heard Mr K.V Viswanathan, learned Senior Counsel for the appellant and Mr Jaideep Gupta, learned Senior Counsel for the respondents.
12. 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, 477-A and 120-B IPC.
13. 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 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 CCs Nos. 21 and 49 of 2000 pending before the Court of the Enquiry Commissioner and Special Judge, Kozhikode and CC No. 31 of 2005 pending before the Court of the Enquiry Commissioner and Special Judge, Thrissur, with the permission of the respective courts.
14. Mr Viswanathan 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 the Assistant Executive Engineer, there is no loss to the Government, hence he cannot be held liable.
15. 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 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.
16. We have carefully considered the rival submissions and perused all the relevant materials.
17. 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)***
(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)***”
The headnote makes it clear that any act done in good faith is protected. The appellant, being the 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 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 precondition or mandate before initiating either civil or criminal prosecution.
18. 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.
19. 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 8½ 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 was in charge of the work got promoted as Executive Engineer and then as Superintending Engineer and retired from service on superannuation and left the country for working in the UAE before filing the charge-sheet in the court.
20. Apart from the above conclusion, in the light of the language used in sub-section (2) which is mandatory and 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.
21. Coming to the second contention, namely, the stand of the Government which is reflected in the proceedings dated 3-4-2006, it is also useful to extract the decision of the Government of Kerala, Vigilance (B) Department which was communicated by the Principal Secretary to the Government to the Director, Vigilance and Anti-Corruption Bureau, Thiruvananthapuram which reads thus:
“government of kerala
No. 9575.B1/05.Vig.Vigilance (B) Department
Thiruvananthapuram
Dated 3-4-2006
From
The Principal Secretary to the Government
To
The Director
Vigilance and Anti-Corruption Bureau
Thiruvananthapuram
Sir,
Sub.: Withdrawal of the cases pending against Shri R. Ramachandran Nair, former Vice-Chancellor, Sree Sankaracharya University of Sanskrit—Reg.
Ref.: 1. Government Letter of even no. dated 7-10-2005.
2. Your Letter No. C5.SJK/16465/2000 dated 3-12-2005 and 18-2-2006.
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 of 2000 and CC No. 49 of 2000 of the Court of the Enquiry Commissioner and Special Judge, Kozhikode and CC No. 31 of 2005 of the Court of the Enquiry Commissioner and 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 the 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 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 No. 21 of 2000 and CC No. 49 of 2000 of the Enquiry Commissioner and Special Judge, Kozhikode, and CC No. 31 of 2005 of the Enquiry Commissioner and Special Judge Court, Thrissur.
Hence, I am to request you to take urgent action to withdraw the cases in CC No. 21 of 2000 and CC No. 49 of 2000 pending before the Court of the Enquiry Commissioner and Special Judge, Kozhikode and CC No. 31 of 2005, before the Enquiry Commissioner and Special Judge, Thrissur, with the permission of the respective courts.
The action taken in this matter may be intimated to the Government immediately.
Yours faithfully
K.A Bhagavathy Ammal
Additional Secretary
For Principal Secretary to the Government”
22. Perusal of the above communication at the highest level makes it clear that on examination of the entire facts in the three cases, namely, CCs 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 functions imposed on him under the Act, the Government requested the Director, Vigilance and Anti-Corruption Bureau to take action to withdraw all the three cases pending before the respective courts. It is not clear, in spite of such decision at the highest level, namely, the Chief Secretary to the Government, no follow-up action was taken before the courts concerned 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.
23. Apart from the legal issues which are in favour of the appellant, even on merits, the prosecution cannot be allowed to proceed against the appellant. When the appellant was asked to take the required steps for formation of the University under the Act, the Government allotted 42.5 acres of land which was waterlogged and any development work could be started only after it was 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 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.
24. 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 charge-sheet about the huge difference in the calculation of the loss between the FIR and the charge-sheet.
25. 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 the Special Officer for creating a university. It was pointed out that within two years the mission was completed and Sree Sankaracharya University 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 1-1-1994. He continued in the post for a period of 2½ years i.e till 30-6-1996.
26. 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 with the 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.
27. In these circumstances, the orders passed by the Enquiry Commissioner and Special Judge, Thrissur dated 29-8-2009 in CMP No. 2933 of 2008 in CC No. 31 of 2005 and the order of the High Court dated 12-7-2010 in Criminal Review Petition No. 1606 of 2010 are set aside, consequently, the appellant is discharged from all the allegations levelled against him. The appeal is allowed.
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