The High Court will hear arguments on the petition filed by ADGP Ajith Kumar against the order of the Special Vigilance Court in the disproportionate assets case on Wednesday. Justice A Badharudeen, who considered the petition on Tuesday, sought a clarification on the need for a sanction for the court to take cognisance of the matter. In his petition, Ajith Kumar cited that the vigilance court order was against the settled legal principles and judicial pronouncements.

One of the main contentions was about the prerequisite sanction to proceed with a complaint against a public servant. "It is well settled by various judicial pronouncements of the Supreme Court and Kerala High Court that the requirement of sanction is a prerequisite to proceed with a private complaint in respect of a public servant under the provisions of the Prevention of Corruption Act (PC) irrespective of whether the court was acting at a

pre-cognizance stage or the post-cognisance stage. The impugned order is passed in total violation of the clear declaration of law by the Apex Court and High Court," Ajith Kumar said in his petition.

According to Advocate Neyyatinkara Nagaraj, who filed the complaint against Ajith Kumar, the court mainly considered two provisions of the act; section 17 and section 19 of the PC Act. "The court was clear about section 17, and the applicability of section 19 will be heard by the court while considering the plea for an interim stay on the court proceedings," said Nagaraj.

As per section 19(1), no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, for the previous sanction of the Government or authority for taking cognizance by the court unless such person has filed a complaint in a competent court about the alleged offences and the court has not dismissed the complaint and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding.

Ajith Kumar said in the petition that any Court which is considering a complaint can indeed deal with a complaint either in a pre-cognisance stage or post-cognisance stage, and considering previous judicial pronouncements, when the complaint is against a public servant, the law is clear that a sanction is a prerequisite to proceed, regardless of the stage. 

The order of the Enquiry Commissioner and the Special Judge Manoj A issued on August 14 shows that the court had considered the judgments of the Supreme Court and the High Court in the past on the need for a sanction to proceed with a case during the pre-cognisance stage. The Vigilance court observed that the SC order, which said that a complaint should accompany a sanction order, was not applicable in the case related to Ajithkumar. 

The vigilance judge cited an amendment introduced in the PC Act in 2018 and observed that this provision was not in the statute book when the SC considered a case. Referring to two conditions in section 19(1), the vigilance court noted that since Nagaraj raised a corruption allegation against Ajith Kumar, a public servant, and he filed the complaint before the competent court to prosecute him, one condition was satisfied and the application of the second condition would only be considered during further proceedings, after examining the complainant and any witnesses, the court observed in the August 14 order.