Kerala High Court
P.M.Salim vs George M.J
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 21ST DAY OF MARCH 2017/30TH PHALGUNA, 1938
RP.No. 893 of 2016 () IN OP(Crl.).390/2016
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AGAINST JUDGMENT DATED 13-07-2016 IN OP(CRL.) 390/2016 OF HIGH
COURT OF KERALA
REVIEW PETITIONER(S)/3RD RESPONDENT:-:
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P.M.SALIM,
PRESIDENT, SANSKRIT UNIVERSITY EMPLOYEES UNION,
KALADY, ERNAKULAM - 683 574.
BY ADVS.SRI.T.B.HOOD
SRI.AMAL KASHA
SMT.M.ISHA
RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 & 2 IN O.P:-:
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1. GEORGE M.J.,
S/O.LATE M.D.OUSEPH, AGED 53 YEARS,
MUNDAKAN HOUSE, ANGAMALY - 683 572.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
3. THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU,
SPECIAL INVESTIGATION UNIT - I,
TRIVANDRUM - 695 001.
R BY GOVERNMENT PLEADER SMT.K.B.SONY
R BY SRI.P.MARTIN JOSE
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
21-03-2017, ALONG WITH CRMC. 4439/2016 AND CRMC. 5281/2016, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
[CR]
B. KEMAL PASHA, J.
................................................................
Review Petition No. 893 of 2016,
Crl.M.C.No.5281 of 2016 &
Crl.M.A.No.9367 of 2016 in
Crl.M.C.No.4439 of 2016
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Dated this the 21st day of March, 2017
C O M M O N O R D E R
The petitioner in Crl.M.C.No.5281 of 2016 is the 2nd respondent in Crl.M.P.No.530/2016 of the Court of Enquiry Commissioner and Special Judge(Vigilance), Muvattupuzha, against whom Annexure VIII order has been passed by the court below. R.P. No.893/2016 is filed by the 3rd respondent in O.P.(Crl) No.390/2016. Crl.M.A.No.9367/2016 is filed by the 2nd respondent in Crl.M.C.No.4439/2016. O.P.(Crl) No.390/2016 was filed by the 4th respondent, and Crl.M.C.No.4439/2016 was filed by the 7th respondent, in Crl.M.P.No.530/2016 of the court below.
2. This Court had vide judgment dated 13.07.2016 Review Petition 893 of 2016 & con. cases -: 2 :- quashed the FIR in VC. 12/2016 of the VACB, Ernakulam and all further proceedings in it, as against the 4th respondent in Crl.M.P.No.530/2016. Similarly, this Court had vide order dated 18.072016 quashed the order passed by the court below in Crl.M.P.No.530/2016 as against the 7th respondent.
3. The petitioner in R.P. 893/2016 as well as in Crl.M.A.No.9367/2016, is the complainant in Crl.M.P.No.530/2016. According to the petitioner, he was not heard and was not given an opportunity of being heard prior to the aforesaid judgment and order passed by this Court in favour of the 4th respondent and the 7th respondent, and on that ground the petitioner wants to get the said judgment and order recalled. The petitioner in Crl.M.C.No.5281/2016 is the 2nd respondent, who wants to get Annexure VIII order passed by the court below as against him, quashed.
4. The complainant had approached the court below through Crl.M.P.No.530/2016 alleging criminal misconduct Review Petition 893 of 2016 & con. cases -: 3 :- against the respondents. It seems that the court below has passed Annexure VIII order produced in Crl.M.C.No.4439/2016 by directing the Dy.S.P. VACB Unit, Ernakulam to register an FIR against R2, R4 and R7 in the complaint, under Section 156(3) Cr.P.C. and to conduct an investigation for offences under Section 120(B) and Section 13(1)(d)(i) of the Prevention of Corruption Act and to file a final report within three months from the date of the said order. Complying with the said direction, the VACB has registered the FIR against the 4th respondent as aforesaid, which ultimately was quashed by this Court. Prior to the registration of the FIR against the 7th respondent, the order passed by the court below as against the 7th respondent was also quashed by this Court as aforesaid.
5. Presently, through Crl.M.C.No.5281/2016, the 2nd respondent has also come up for getting the order passed against him quashed. Based on the complaint preferred by the complainant, initially a preliminary inquiry was conducted Review Petition 893 of 2016 & con. cases -: 4 :- by the investigating officer and a report was filed before the court below. It seems that the court below was dissatisfied with the manner in which the matter was concluded by the investigating officer, and was of the view that FIR has to be registered against R2, R4 and R7, and consequently, Annexure VIII order was passed. The court below has found that any further proceedings need not be initiated against R1, R3, R5 and R6.
6. Heard learned Senior Counsel Sri.M.K. Damodaran for the petitioner in Crl.M.C.No.5281/2016 and Sri.T.B. Hood, learned counsel for the complainant.
7. The learned Senior Counsel has argued that through the impugned order the court below has transgressed into the forbidden zone of inquiry, which was not expected to be conducted by the court below at that stage while passing the said order, and thereby the order is bad in law. It has also been argued that there are no materials to proceed against the said 2nd respondent for Review Petition 893 of 2016 & con. cases -: 5 :- offences punishable under Section 13(1)(d)(i) read with Section 13(2) of the P.C. Act, merely because of the fact that there is nothing to show that the said 2nd respondent had obtained by corrupt or illegal means any valuable thing or pecuniary advantage for himself or for any other person. Precisely, it is argued that the term "obtain" necessarily implies a demand. It is argued that there is no allegation that the said 2nd respondent had obtained any such valuable thing or pecuniary advantage for himself or for any other person.
8. Per contra, the learned counsel for the complainant has argued that the 2nd respondent was instrumental in getting a favourable decision in the matter of appointment of the 7th respondent and thereby the 2nd respondent had obtained a valuable thing for the benefit of the 7th respondent, which can invite an offence under Section 13(1)
(d)(i) of the P.C. Act as against the 2nd respondent.
8. In paragraph 5 of Annexure VIII order, the court Review Petition 893 of 2016 & con. cases -: 6 :- below has stated as follows:
"So I find that the quick verification had brought out sufficient materials to proceed against R2, R4 and R7 for offences under Section 120(B), 420 IPC and Section 13(1)(d)(i) read with Section 13(2) of the P.C. Act.
There is no material available to proceed against R1 Vice-Chancellor, R3 present Registrar, R5 Section Officer and R6 Assistant Section Officer at this case."
9. Regarding Annexure VIII order, according to the learned counsel for the complainant, some of the respondents were ordered to be dropped by the court below and the said procedure could only be treated as rejection of that part of the complaint as against those respondents. It is argued that Annexure VIII order will not reflect an inquiry conducted by the court below and what was done by the court below in passing Annexure VIII order was some thing done by the court below at the pre-cognizance stage and not after the post-cognizance stage.
Review Petition 893 of 2016 & con. cases -: 7 :-
10. In paragraph 5 of the impugned order, which has been reproduced above, the court below has clearly found that the report on the preliminary inquiry had brought out sufficient materials to proceed against R2, R4 and R7. Through the said finding, the court below has further held that there were no sufficient materials to proceed against R1, R3, R5 and R6. It seems that the court below has considered the matter as one at the stage of Section 203 Cr.P.C., by making the aforesaid clear observations in black and white. As per Section 203 Cr.P.C., if, after considering the statements on oath of the complainant and the witnesses and the result of the inquiry or investigation(if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. Here, the court below has found that there are no materials available to proceed against R1, R3, R5 and R6, after finding that there are sufficient materials to proceed against R2, R4, and R7. In such case, it is evident Review Petition 893 of 2016 & con. cases -: 8 :- that the court below had clearly transgressed into the stage of inquiry to enter such a finding and the court below has virtually dismissed the complaint as against R1, R3, R5 and R6, under Section 203 Cr.P.C.
11. By relying on the decisions in HDFC Securities Limited and others v. State of Maharashtra and another [(2017) 1 SCC 640], Biju Purushothaman v. State of Kerala [2008 (3) KLT 85] and Raju Puzhankara v. State of Kerala [2008 (2) KLT 467], the learned counsel for the complainant has forwarded an argument that in this particular case, the act done by the court below in passing Annexure-VIII order could only be considered as the rejection of that part of the complaint.
12. This Court cannot agree with the argument forwarded by the learned counsel for the complainant that, that part of the order, whereby actions were ordered to be dropped by the court below as against some of the respondents, has to be treated as the rejection of that part Review Petition 893 of 2016 & con. cases -: 9 :- of the complaint. At any stretch of imagination, it cannot be said that the court below was exercising a power to reject the complaint in this particular case. In order to reject a complaint, the court below could not have considered the question as to whether there were sufficient grounds to proceed against those persons or not.
13. It is true that the court below could have rejected the complaint in toto, had it not been one reflecting as a complaint within the meaning of Section 2(d) Cr.P.C; so that the complainant could have filed a proper complaint. Such a rejection of the complaint cannot be by a partial rejection. It cannot be said that the court below could have rejected the complaint as against some of the accused and accepted the complaint as against the remaining accused. Whatever it is, from the findings entered by the court below in paragraph 5 of the impugned order, it is evident that the court below has chosen to dismiss the complaint as against R1, R3, R5 and R6, and evidently such dismissal could only be treated as Review Petition 893 of 2016 & con. cases -: 10 :- one under Section 203 Cr.P.C. In cases wherein the court takes a view that there are no sufficient grounds to proceed against a particular accused, the earliest stage at which such an order can be passed is the one contemplated under Section 203 Cr.P.C. and not of any other earlier provisions in the Cr.P.C.
14. When such a power has been exercised by the court, it has to be necessarily presumed that the court below has transgressed into the provisions contained in Chapter XV Cr.P.C., which was not permitted at that particular stage. When the court below has exercised the powers under Section 203 Cr.P.C. against some of the accused, there is the end of the matter. In such case, the court below could not have reverted back to the pre-cognizance stage as against the remaining accused.
15. As rightly pointed out by the learned Senior Counsel for the 2nd respondent, it is evident that the court below has transgressed into the forbidden zone at that Review Petition 893 of 2016 & con. cases -: 11 :- particular stage in passing Annexure VIII order. The court below ought not to have chosen to dismiss the complaint as against some of the accused and to accept the complaint against the other accused. In case of such acceptance the court below ought to have made an independent inquiry and proceeded accordingly as per the Code of Criminal Procedure. At that particular stage, after dismissing the complaint against some of the accused under Section 203 Cr.P.C., the court below could not have reverted back to the pre-cognizance stage to invoke the power under Section 156(3) Cr.P.C. The position is covered by the decision of this Court in Balasubramanian v. Biju Kochupaul[2016(3) KLT 220], relying on the decision of the Apex Court in CREF Finance Ltd. v. Shrere Shanthi Homes (P) Ltd. & another [2005 (4) KLT SN 55(C.No.72) SC] = [(2005) 7 SCC 467].
16. The entire exercise made by the court below in passing the impugned order is illegal. The court below was not expected to pass on to the stage of inquiry at that Review Petition 893 of 2016 & con. cases -: 12 :- particular stage. Moreover, when an offence under Section 13(1)(d)(i) read with Section 13(2) of the P.C. Act was specifically alleged in a complaint, the court below should not have conducted an inquiry at all. The court below could have, without effecting a dismissal of the complaint as against some of the accused, forwarded the complaint under Section 156(3) Cr.P.C. In such a context, after invoking the power under Section 203 Cr.P.C., the court below could not have forwarded the complaint for investigation as against R2, R4 and R7, under Section 156 (3) Cr.P.C.
17. The learned counsel for the complainant has relied on the decision in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others [(1976) 3 SCC 252] and argued that the court below has not taken cognizance on the complaint and therefore, it cannot be said that the court below has gone into the stage of inquiry and then reverted back to the pre-cognizance stage Review Petition 893 of 2016 & con. cases -: 13 :- in directing the registration of the FIR as against R2, R4 and R7. True that the court below could not have gone to the stage commencing from Section 200 Cr.P.C. in this particular case. But in reality, the court below has passed the impugned order in which one portion of it virtually comes within the scope of Section 203 Cr.P.C. In order to pass an order under Section 203 Cr.P.C., necessarily the court below ought to have gone into the stage of inquiry.
18. Regarding the element of demand also there is no complaint that there was any demand involved in this case. One may suspect whether in a case like this any demand should be there in order to invoke an offence punishable under Section 13(1)(d)(i) read with Section 13(2) of the P.C. Act. The Apex Court had occasions to consider the said question repeatedly. In the decision in R. Balakrishna Pillai v. State of Kerala[(2003) 9 SCC 700] it was held that in order to invoke such an offence there should be the mental element of mens rea and such a Review Petition 893 of 2016 & con. cases -: 14 :- mental element denoting the intention should accompany the act.
19. In Subash Parbat Sonvane v. State of Gujarat [(2002) 5 SCC 86] the Apex Court by relying on the decision in C.K. Damodaran Nair v. Government of India[(1997) 9 SCC 477] explained the term "obtains" contained in Section 13(1)(d) of the P.C. Act. It was clearly held that in order to constitute an act of 'obtaining something', there should either be an express demand or implied demand. The Apex Court has distinguished the term 'obtainment' from the term 'acceptance' in C.K.Damodaran(supra). In the case of 'acceptance', there need not be an express or implied demand; whereas, in the case of 'obtainment', there should be a demand which is either express or implied.
20. In Parappurath Damodaran v. State of Kerala [2016 (3) KHC 495], it was held that in order to invite the offences under Sections 7 and 13 of the Prevention of Corruption Act, 1988, 'demand' is required. Review Petition 893 of 2016 & con. cases -: 15 :-
21. From the discussions made above, it has clearly come out that the procedure adopted by the court below in passing the impugned order is apparently illegal and it has resulted in substantial miscarriage of justice. The said order as against the 2nd respondent in Crl.M.P.530/2016 is also liable to be quashed.
22. Even though the learned counsel for the complainant has requested to recall the judgment and the order passed by this Court in O.P.(Criminal) No.390/2016 and Crl.M.C. No.4439/2016 relating to the 4th respondent and the 7th respondent respectively, in view of the illegality of the order impugned, this Court is of the view that no purpose would be served in recalling the said judgment and order. Matters being so, Crl.M.C. No.5281/2016 is only to be allowed, and R.P.No.893/2016 and Crl.M.A.No.9367/2016 in Crl.M.C. No.4439/2016 are only to be dismissed, and I do so.
23. Even though the learned counsel for the Review Petition 893 of 2016 & con. cases -: 16 :- complainant has argued that the orders passed by this Court without hearing the complainant will confer some benefits on some of the respondents, it is made clear that this Court has not expressed any opinion with regard to the legality or otherwise of the appointment of the 7th respondent.
In the result, Crl.M.C. No.5281/2016 is allowed and R.P.No.893/2016 and Crl.M.A.No.9367/2016 in Crl.M.C. No.4439/2016 are dismissed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/aks/-
[True copy] P.S. to Judge.