REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   792        OF 2011 (Arising out of S.L.P. (Crl.) No. 9818 of 2010)

R. Ramachandran Nair      .... Appellant(s)

Versus

The Deputy Superintendent  Vigilance Police & Anr.            .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1)  Leave granted.

2)  This appeal is directed against the impugned judgment and  

order dated 12.07.2010 passed by the High Court of Kerala at  

Ernakulam in Criminal  R.P.  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.

3) Brief facts:

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(a) The  Government  of  Kerala  was  trying  to  establish  a  

Sanskrit University in the State from the year 1972 onwards.  

On 15.07.1991, the appellant was appointed as Special Officer  

for  creating  the  first  Sanskrit  University  in  the  State.   On  

16.01.1993,  the  State  issued a  Government  Order  directing  

the District Collector, Ernakulam to acquire the land for the  

establishment of the University.  The entire land of 42.5 acres,  

so  acquired  in  Kalady  (the  holy  birth  place  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 water-

logged  paddy  fields  and  any  development  work  could  be  

started only after it was filled up with earth.  Before starting  

the work of filling up, the appellant, who was functioning as  

the  Chief  Secretary  to  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 PWD”) who was actually  

brought  to  the  site.   The  appellant  filled  42.5  acres  of  

waterlogged  land  with  earth  brought  from  distance.   An  

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amount of Rs.5,925/- was spent for filling up of every one cent  

of the water logged land.   

(b) From  01.01.1994  to  30.06.1996,  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  the  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  Indian  Penal  Code  (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.

(c) 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  

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the impact of rains during six monsoons during that time, the  

field had got thoroughly consolidated.

(d) On 30.06.2005, 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 F.I.R.  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/-.   

(e) In the meanwhile, on 03.04.2006, 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  

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appellant is eligible for the protection under Section 50(3) of  

the Act.  

(f) 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  Enquiry  Commissioner  and  Special  Judge,  

Thrissur  for  discharge.   By  order  dated  29.08.2009,  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.   

(g) Against the said order, the appellant preferred Criminal  

Revision Petition No. 1606 of 2010 before the High Court of  

Kerala.  By order dated 12.07.2010, the High Court dismissed  

the revision filed by the appellant herein.  The said order is  

under challenge in this appeal.

4) Heard Mr. K.V. Viswanathan, learned senior counsel for  

the appellant and Mr. Jaideep Gupta, learned senior counsel  

for the respondents.

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5) 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, 477A and 120-B of IPC.   

6) 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  

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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. CC  

No.  21 of  2000 and CC No.  49 of  2000 pending before the  

Court of Enquiry Commissioner & Special Judge, Kozhikode  

and CC No. 31 of 2005 pending before the Court of Enquiry  

Commissioner & Special Judge, Thrissur, with the permission  

of  the  respective  Courts.  He  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. Assistant Executive Engineer, there is  

no loss to the Government hence he cannot be held liable.   

7) 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  

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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.  

8) We have carefully considered the rival submissions and  

perused all the relevant materials.  

9)   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) XXX (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) XXX”

The headnote makes it clear that any act done in good faith is  

protected.   The  appellant,  being  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  

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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  pre-condition  or  

mandate before initiating either civil or criminal prosecution.  

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.  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  81/2 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 in-charge of the work got promoted as Executive Engineer  

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and then as Superintending Engineer and retired from service  

on superannuation and left the country for working in UAE  

before filing the chargesheet in the Court.

10)   Apart  from  the  above  conclusion,  in  the  light  of  the  

language  used in  sub-Section  2 which is  mandatory  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.   

11)  Coming to the second contention, namely, the stand of the  

Government  which  is  reflected  in  the  proceedings  dated  

03.04.2006,  it  is  also  useful  to  extract  the  decision  of  the  

Government  of  Kerala,  Vigilance  (B)  Department  which was  

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communicated  by  Principal  Secretary  to  Government  to  the  

Director,  Vigilance  &  Anti  Corruption  Bureau,  

Thiruvananthapuram which reads thus:-

“GOVERNMENT OF KERALA

No. 9575/B1/05/Vig.      Vigilance (B) Department  Thiruvananthapuram Dated 03.04.2006

From The Principal Secretary to Government

To The Director Vigilance & Anti-Corruption Bureau Thiruvananthapuram

Sir, Sub: Withdrawal of cases pending against Shri R Ramachandran  

Nair, former Vice-Chancellor, Sree Sankaracharya University  of Sanskrit – Reg.

Ref. 1. Govt. letter of even No. dated 07.10.2005. 2.  Your  letter  No.  C5/SJK/16465/2000  dated  03.12.05  &  18.02.06.

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.  21/2000  and  CC  No.  49/2000)  of  the  Court  of  Enquiry  Commissioner & Special Judge, Kozhikode and CC No. 31 of 2005 of the  Court of Enquiry Commissioner & 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  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  

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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 21/2000 and CC No. 49/2000 of the Enquiry Commissioner & Special  Judge, Kozhikode, and CC No. 31/2005 of the Enquiry Commissioner &  Special Judge Court, Thrissur.

Hence, I am to request  you to take urgent action to withdraw the  cases  in  CC 21/2000 and  CC No 49/2000 pending  before  the  Court  of  Enquiry Commissioner & Special Judge, Kozhikode and CC No. 31/2005,  before  the  Enquiry  Commissioner  &  Special  Judge,  Thrissur,  with  the  permission of the respective courts.

The  action  taken  in  matter  may  be  intimated  to  Government  immediately.

Yours faithfully

       Sd//- K.A. BHAGAVATHY AMMAL

              Additional Secretary For Principal Secretary to Government”

12)  Perusal of the above communication at the highest level  

makes it clear that on examination of the entire facts in the 3  

cases, namely, CC 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 function  

imposed on him under the Act, the Government requested the  

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Director Vigilance, Anti-Corruption Bureau to take action to  

withdraw all the 3 cases pending before the respective Courts.  

It is not clear, in spite of such decision at the highest level,  

namely, Chief  Secretary to Government, no follow up action  

was taken before the concerned courts 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.  

13)  Apart  from the legal issues which are in favour of the  

appellant, even on merits, prosecution cannot be allowed to  

proceed against the appellant.  When the appellant was asked  

to take required steps for formation of the University under the  

Act,  the  Government  allotted 42.5  acres of  land which was  

water logged and any development work could be started only  

after it was to be 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  

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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.   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 chargesheet  

about  the  huge  difference  in  the  calculation  of  the  loss  

between  the  FIR  and  the  chargesheet.   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 Special Officer for  

creating a University.  It was pointed out that within two years  

the mission was completed and Sri Sankaracharya University  

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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  

January 1, 1994.  He continued in the post for a period of 21/2  

years i.e. till 30.06.1996.  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  of  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.

14)  In these circumstances, the orders passed by the Enquiry  

Commissioner and Special Judge, Thrissur dated 29.08.2009  

in CMP No 2933 of 2008 and CC No. 31 of 2005 and order of  

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the High Court dated 12.07.2010 in Crl. RP No. 1606 of 2010  

are set aside, consequently, the appellant is discharged from  

all the allegations leveled against him.  The appeal is allowed.  

 ...…………….…………………………J.            (P. SATHASIVAM)                                   

    .…....…………………………………J.    (DR. B.S. CHAUHAN)  

NEW DELHI; MARCH 28, 2011.     

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