1. This criminal miscellaneous case has been filed under Section 528 of the the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS' for short), by the 2nd accused in VC No.11/2022/TSR of the Vigilance & Anti-Corruption Bureau (VACB), Thrissur, seeking the following prayers.

                  “(i) Call for the original records related to the investigation of VC 11/2022/TSR from the 2nd respondent, peruse those records and quash/set aside as illegal and unjustifiable Annexure-6 (Vigilance Enquiry Report in VE No.7/2021/TSR) and Annexure-5 (FIR in VC No.11/2022/TSR of the Vigilance & Anti-Corruption Bureau, Thrissur) and all further proceedings thereon;

                  (ii) To  allow the costs of these proceedings to the petitioner;

                  (iii) To issue such other order, or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, and in the interests of justice.”

2. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor appearing for the VACB in detail. Perused the relevant records, including the statements, copies of minutes and the surveyor's sketch placed by the learned Special Public Prosecutor.

3. On tracing the genesis of this case, it could be seen that as on 05.11.2018, one Sri.Sunil Kumar T.K., S/o.Kumaran, Thekoodan (H), Kuttichira P.O., Chalakkudy, Thrissur, lodged a complaint before the Deputy Superintendent of Police (Dy.SP), VACB, Thrissur. The allegations in the complaint would show that the President, the Secretary and the committee members of Athirappilly Grama Panchayath conspired with the owner of Avenue Hotels & Resorts Pvt. Ltd, Athirappilly and pursuant to the said conspiracy, the Panchayat sold 51 cents of land belonging to the Panchayat to the owner of the Avenue Hotels & Resorts Pvt. Ltd, without obtaining permission from the Government. The FIR would reveal further that the allegations in the said complaint were enquired and it was found that 51 cents of property belonged to Athirappilly Grama Panchayat was encroached/possessed by the Avenue Hotels & Resorts Pvt. Ltd during 2003 on the basis of a wrong decision taken by the Grama Panchayat authority. Pursuant to that, a detailed enquiry had been recommended in this matter. Thereafter, a vigilance enquiry was ordered vide Government Order No.Vig-D4/321/2019-Vig dated 18.10.2021, pursuant to Order No.E11 (VE 07/2021/TSR) 36235/2018 dated 09.08.2019 of the Director, Vigilance & Anti-Corruption Bureau, Thiruvananthapuram.

4. The vigilance enquiry dated 31.12.2021 is produced as Annexure A6 and the same reveals that prima facie, the allegations in the complaint were having force and in consequence thereof this FIR has been registered. The allegations in the FIR read as under :

                  “The former Athirappilly Grama Panchayat President, Sri. P.M. Pushpangadhan (A1) during the period of 2003, conspired with Sri.O.T.Alexander, (A4) Owner of the Avenue Hotels & Resorts Pvt. Ltd, to transfer 51 cents of land vide Survey No.1674/4, 1675/1 of Athirappilly Grama Panchayath to Avenue Hotels & Resorts Pvt. Ltd and former Athirappilly Grama Panchayath Secretary Sri.Radhakrishnan M.S., (A2) Panchayath Committee Members (A3) without procuring government sanction. For this the A1 and A4 made an agreement for transferring the land to Avenue Hotels & Resorts Pvt. Ltd without prior sanction from Government. Based on the agreement, the hotel authorities encroached the land owned by the Athirappilly Grama Panchayath by closing the roads. The suceeding Panchayat Secretaries of Athirappilly Grama Panchayath since 2003, had not taken any action to open the encroached land by the hotel authorities. It caused, A4 to illegally occupy the 51 cents of government land of Athirappilly Grama Panchayath and got an illegal gain to A4. Eventhough the transfer of land was not done, there was an attempt to transfer the land possessed to Athirappilly Grama Panchayath with the dishonest intention to make advantage to A4. Thereby they have committed the offence U/s.15 r/w 13(1)(d) of the PC Act 1988 & 120B IPC.”

5. The learned counsel for the petitioner/2nd accused vehemently argued that as far as the petitioner/2nd accused is concerned, the registration of FIR is an abuse of process of court and according to him, after the introduction of the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as ‘PC (Amendment) Act, 2018’ for short), in order to go for an enquiry, inquiry or investigation against a public servant, a prior approval under Section 17A of the PC (Amendment) Act, 2018 is required. In this case, even though the prosecution has a case that Annexure A3 order, issued by the Additional Chief Secretary, K.Manoj Kumar, dated 18.10.2021, is a prior approval within the ambit of Section 17A of the PC (Amendment) Act, 2018, according to the learned counsel for the petitioner, the same could not be considered as an approval under Section 17A of the PC (Amendment) Act, 2018. Therefore, the entire enquiry, inquiry or investigation are without prior approval provided under Section 17A of the PC (Amendment) Act, 2018 and therefore, the entire enquiry, inquiry or investigation are vitiated.

6. Apart from that, it is submitted by the learned counsel for the petitioner that the first decision to exchange the properties of the Avenue Hotels & Resorts Pvt. Ltd, Athirappilly, with that of the property owned by the Panchayat was taken on 14.08.2003. Thereafter, on 29.12.2003, it was decided to get prior approval from the Government for transferring the land. The petitioner got transferred from the post of Secretary as on 05.01.2004 and therefore, no offences under the PC (Amendment) Act,2018 could be found prima facie against the petitioner. If at all some omission in discharging his official functions is to be found, since he failed to apply for sanction from the Government for transfer of the property, for which, disciplinary proceedings ought to have been initiated, but no disciplinary proceedings were initiated against the petitioner during his service and now he had retired from service.

7. According to the learned counsel for the petitioner, in the instant case, the prosecution as against the petitioner is totally unwarranted and the report filed by the investigating officer also cannot be believed even on reasons and logical application of mind, as the prosecution at the one end alleges transfer of the property and on the other end alleges encroachment of the property by Avenue Hotels & Resorts Pvt. Ltd, Athirappilly and both these allegations are mutually destructive.

8. It is pointed out further that in this case, FIR was registered without recording the statement of the complainant, Sri.Sunil Kumar T.K., or that of Sri.P.S.Suresh, the Dy.S.P. who conducted vigilance enquiry and the report of the vigilance enquiry is produced as Annexure A6. Thus the FIR has been registered against the law. Accordingly, the learned counsel for the petitioner pressed for the reliefs sought for.

9. Opposing the prayer for quashment, it is submitted by the learned Special Public Prosecutor that, in fact, as per Annexure A2, when the Additional Chief Secretary received letter from the Director, VACB, dated 09.08.2019, regarding the allegations raised in the complaint by Sri.Sunil Kumar T.K., acting on the same, the Additional Chief Secretary ordered to conduct vigilance investigation and file report. In such view of the matter, Annexure A3 is the prior approval given by the Additional Chief Secretary under Section 17A of the PC (Amendment) Act, 2018. Therefore, the contention raised by the learned counsel for the petitioner that, in this case, the prosecution failed to get prior approval as contemplated under Section 17A of the PC (Amendment) Act, 2018 would not succeed. It is submitted further that, during the period of the decision to hand over the property, i.e., on 14.08.2003 to 05.01.2004, the petitioner, who held the post of the Secretary, also dealt with the affairs of the office and the minutes were written in his handwriting. Therefore, the prosecution allegations against the petitioner could not be ruled out prima facie. According to the learned Special Public Prosecutor, now the investigation is almost complete and the prosecution sanction is awaiting to file final report. It is also submitted that on getting the prosecution sanction, the final report would be filed without delay. Apart from that, the learned Special Public Prosecutor produced report of the Investigating Officer, dated 28.01.2026, wherein paragraph Nos.5, 6, 7 and 8 are relevant and the same are extracted as under:

                  “(5) It is submitted that the brief of the Vigilance Case is that, Mr.Pushpangathan (Accused No.1), the then President of the Athirappilly Grama Panchayat (4th Respondent), and Mr. Radhakrishnan (Accused No.2), the then Panchayat Secretary (Petitioner herein), along with other Panchayath members (Accused No.3), while acting in their capacities as public servants, entered into a criminal conspiracy with Mr. O.T. Alexander (Accused No.4), the Managing Director of Hotel Avenue & Resorts (P) Limited (5th Respondent) during 2003, In pursuance of this criminal conspiracy, Accused Nos.1 and 2 allegedly abused their official positions to execute an illegal agreement with Accused No.4, thereby facilitating the unauthorized transfer and alienation of 51 cents of Athirappilly Panchayat Puramboke land falling in Survey Nos.1674/4 and 1675/1 of Athirappilly Village, without obtaining the prior approval from the State Government.

                  (6) It is submitted that, during investigation of the Vigilance case, is completed and it is revealed in the investigation that the accused including the Petitioner had committed offences U/s 13(2) r/w 13(1)(d) of PC act 1988, 120(B) IPC and section 7 of Land conservancy act 1957. The Prosecution Sanction Orders under Section 19 of the Prevention of Corruption Act- 1988, from the concerned authorities are to be obtained before submitting the Final Report before the Honourable Enquiry Commissioner&Special Judge Court, Thrissur, against the Petitioner and other accused persons.

                  (7) It is humbly submitted that, the Vigilance Enquiry -VE-7/21/TSR was conducted by VACB, Thrissur Unit after procuring sanction from State Government and in pursuance to the Vigilance Enquiry, FIR in VC- 11/22/TSR was registered. Hence the contentions raised by the petitioner, regarding the lack of prior approval under Section 17A of the Prevention of Corruption Act-1988, is legally untenable. It is also submitted that here the authority to issue the Section-17A sanction of PC Act is State Government and the same authority had ordered to conduct the Vigilance Enquiry on request of Director, VACB, Thiruvananthapuram. Consequently, the petitioner's prayer to quash the proceedings on this ground is devoid of merit and is to be rejected.

                  (8) It is submitted that, in the investigation it is revealed that the decision regarding the transfer of land falling in the Survey Number-1675/1 of Athirappilly Village of extent 0.4020H(51 cents) owned by the Athirappilly Gramapanchayath was taken on 14/8/2003 after handing over the same extent of land owned by the Avenue Hotels & Resorts Pvt. Ltd Private Limited. On 29/12/2003, it was decided by the Administrative Committee to procure sanction from Director of Panchayaths, for the mutual transfer of land. As per Rule-3 of, The Kerala Panchayath Raj (Acquisition and Disposal of Property) Rules to dispose of any property owned by the Gramapanchayath, the prior approval of State Government is to be obtained. Eventhough, the decision to dispose of the property was taken by the Administrative Committee of the Athirappilly Gramapanchayth, the petitioner had taken any action to procure any sanction from the State Government or from Director of Panchayaths, in this regard. But on 1/12/2003 an agreement in this regard was executed between, the President of the Athirappilly Gramapanchayath and the Hotel Avenue & Resorts (P) Limited; encroached the land, owned by the Athirappilly Gramapanchayath, and made illegal constructions, in the pretext of the decisions taken by the Administrative Committee and the executed agreement. Thus the intentional inaction, of the petitioner, conspiring with the other accused persons of the Vigilance Case, facilitated the encroachment of land by the Hotel Avenue & Resorts (P) Limited having fair value of Rs.1,33,86,600/ fixed by the State Government. Thus, it is evident in the investigation of the case, that the accused including the Petitioner had committed offences punishable U/s 13(1) (d) r/w 13(2) of PC Act 1988, 120(B) IPC and under section 7 of Land Conservancy Act 1957.”

10. As regards the contention raised by the learned counsel for the petitioner that no prior approval under Section 17A of the PC (Amendment) Act, 2018 was obtained, a perusal of Annexure A3 is essential with the aid of Section 17A of the PC (Amendment) Act, 2018. Section 17A of the PC (Amendment) Act, 2018 provides as under:

                  “17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—

                  (a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

                  (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

                  (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

                  Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

                  Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.’’

11. On reading the statutory provisions, prior approval is necessary to go with enquiry, inquiry or investigation by a police officer into an offence alleged to have been committed by a public servant where the alleged offence is related to any recommendation made or decision taken by such public servant in discharge of his official function or duties. Thus, this case falls under the category of cases where prior approval under Section 17A of the PC (Amendment) Act, 2018 is mandatory. Then the question is what are the essentials to be contained in a prior approval order. Since prior approval required to be granted only on the strength of the allegations, a subjective satisfaction of the approving authority to give the same alone is sufficient in this regard. Annexure A3 would reveal that the same was issued by the Additional Chief Secretary on 18.10.2021 based on the letter given by the Director, VACB on 09.08.2019 to conduct vigilance investigation regarding the allegations raised by Sri.Sunil Kumar T.K. Thus, Annexure A3 satisfied the requirements under Section 17A of the PC (Amendment) Act, 2018. Therefore, the learned Special Public Prosecutor is right in contending that Annexure A3 is the prior approval under Section 17A of the PC (Amendment) Act, 2018. In view of the discussion as above, the contention raised by the learned counsel for the Panchayath requesting prior approval could not succeed.

12. In this case, coming to the second contention raised, the complainant herein is Sri.Sunil Kumar T.K. and he had lodged complaint in writing which was subjected to vigilance enquiry ordered as per Annexure A3 and based on the vigilance enquiry report, i.e., Annexure A6, as on 03.11.2022 FIR was registered. In such a case, it cannot be held at the stage of investigation that the crime was registered without any FIS, as the FIR would reveal these facts and reference to the contents of the complaint and the contents of the vigilance enquiry report.

13. It could be seen that there was a decision by the Athirappilly Grama Panchayth as on 14.08.2003 to transfer 51 cents of property belonging to the Grama Panchayath in exchange of a property that would be purchased by the Avenue Hotels & Resorts Pvt. Ltd (P) Ltd. As on 29.12.2003, another decision was taken to put up an application to the Director, Local Self Government Department for getting necessary permission to exchange the property as decided. In fact, it was the Secretary, who is the petitioner herein, had a duty to apply for the permission of the Court being the competent person. However, no such permission was sought for as could be discernible from the materials placed by the petitioner and also the prosecution though the petitioner continued as Secretary till 05.01.2004 as admitted by him. The allegation of the prosecution is that on 29.12.2003, the date on which the Grama Panchayath committee decided to get sanction from the Director to exchange the property belonged to the Panchayath, an agreement was executed between the President of the Grama Panchayath and the owner of the Avenue Hotels & Resorts Pvt. Ltd. and thereafter, the property of the Grama Panchayath was taken possession by Avenue Hotels & Resorts Pvt. Ltd, and the property now has been in possession and enjoyment of the Avenue Hotels & Resorts Pvt. Ltd.

14. The learned Special Public Prosecutor placed a report of the Taluk Surveyor, Taluk Office, Chalakkudy, dated 02.05.2025, which would show that 0.0373 hectares of land belonging to the Grama Panchayath is illegally occupied by Avenue Hotels & Resorts Pvt. Ltd (Green Forest) at present. Thus the prosecution records would show that now Avenue Hotels & Resorts Pvt. Ltd has been in possession of 0.0373 hectares of land owned by the Grama Panchayath and the same resulted after the decision taken by the Panchayath and execution of the agreement between the President of the Grama Panchayath and the owner of the Avenue Hotels & Resorts Pvt. Ltd.

15. Now the question to be considered is whether the prayer in this petition to quash the FIR, as against the petitioner, is liable to be allowed for the reasons urged by the petitioner.

16. When the prosecution allegations and the contentions raised by the learned counsel for the petitioner are taken into consideration, it is not in dispute that there was a decision by the Panchayath committee as on 14.08.2003 to transfer 51 cents of property belonging to the Panchayath in exchange for a property that would be purchased by Avenue Hotels & Resorts Pvt.Ltd. While taking the decision, the petitioner was the Secretary. As on 29.12.2003, another decision was taken by the committee to seek permission from the Government to materialise the exchange. On the same day, the President entered into an agreement with the owner of the Avenue Hotels & Resorts Pvt. Ltd. and the agreement was entered even on the date of the decision without obtaining permission from the Government. As of now, a private person running hotel business has been in possession and enjoyment of 0.0373 hectares of land owned by the Grama Panchayath and no steps were taken by the Secretary herein or the subsequent Secretaries or any other responsible persons to recover the same from Avenue Hotels & Resorts Pvt.Ltd. It is not disputed that till 05.01.2004, the petitioner worked as the Secretary, and though he had retired now. In such a case, quashment of the FIR against the petitioner, that too filed on the verge of completion of the investigation of a crime registered in the year 2022, cannot be considered so as to arrest filing of the final report where the involvement of the petitioner in this crime could be seen prima facie.

                  In such view of the matter, the prayer to quash the FIR for the reasons urged by the petitioner cannot be countenanced, and as a sequel thereof, this petition fails and is dismissed accordingly.

                  Registry is directed to forward a copy of this order to the Special Court forthwith.