Kerala High Court
Vijayan Kottari vs State Of Kerala on 1 November, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938
Crl.Rev.Pet.No. 349 of 2014
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CRL.MP.712/2010 IN CC..41/2008 OF ENQUIRY COMMISSIONER AND SPECIAL COURT,
THRISSUR DATED 01-11-2013
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REVISION PETITIONER(S)/PETITIONER:
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VIJAYAN KOTTARI,
NISHANTH, MATHUKOTH, VARAM P.O,
KANNUR.
BY ADV. SMT.SHAMEENA SALAHUDHEEN
RESPONDENT(S)/RESPONDENT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. MAYA
AMICUS CURAIE SRI.P.VIJAYABHANU (SR.)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 23-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
Crl.Rev.Pet.No. 349 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE A1: TRUE COPY OF THE FINAL REPORT DATED 7/8/08
ANNEXURE A2: TRUE COPY OF THE CIRCULAR O.39/CYC/CS/1/2005 DATED 2/3/05
ANNEXURE A3: TRUE COPY OF THE PROCEEDINGS OF THE CHAIRMAN OF NORTH
MALABAR GRAMIN BANK DATED 10/11/04
ANNEXURE A4: TRUE COPY OF THE SUBMITTED PETITION FILED BY THE
PETITIONER DATED 10/1/09 UNDER SECTION 239 CR.P.C. FOR
DISCHARGE
ANNEXURE A5: TRUE COPY OF THE COUNTER AFFIDAVIT DASTED 14/6/12
ANNEXURE A6: TRUE COPY OF THE RELEVANT EXTRACT OF THE REGULATION 42
OF THE NORTH MALABAR GRAMIN BANK (OFFICERS AND
EMPLOYEES) SERVICE REGULATIONS 2000
ANNEXURE A7: TRUE COPY OF THE SANCTION ISSUED BY THE CHAIRMAN OF THE
NORTH MALABAR GRAMIN BANK DATED 4/3/08
ANNEXURE A8: CERTIFIED COPY OF THE ORDER IN CRL.MP.712/2010 IN CC..41/08 OF
THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.
RESPONDENT(S)' ANNEXURES
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
[CR]
B. KEMAL PASHA, J.
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CRL.R.P. No. 349 of 2014
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Dated this the 23rd day of June, 2016
O R D E R
The revision petitioner is the 2nd accused in C.C.41 of 2008 of the Court of the Enquiry Commissioner and Special Judge(Vigilance), Thrissur, alleging offences punishable under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988(for short 'P.C. Act') and Sections 409, 471, 477A and 120B IPC.
2. The petitioner is arraigned as 2nd accused in the case because of the fact that he was working as a Manager of North Malabar Gramin Bank, Muvattupuzha Branch during the period of incident. The crime was registered by the VACB as FIR No.07/2003-Ekm. Criminal misconduct within the meaning of the P.C. Act, has been alleged against the petitioner, through the final report.
Crl.R.P. No. 349 of 2014 -: 2 :-
3. On the filing of the final report, it seems that the court below has taken cognizance of the offences involved, and processes were issued. The petitioner appeared before the court below and moved a petition under Section 239 Cr.P.C. seeking discharge, mainly on the ground that the investigating agency, i.e., the VACB, who had investigated the case, had no power to register the FIR or to investigate the matter. The said argument was not appreciated by the court below. The court below dismissed the petition under Section 239 Cr.P.C., and has chosen to frame charges.
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. This Court has sought for the assistance of the learned Senior Counsel Sri.Vijaya Bhanu as amicus curiae, since serious questions of law are involved.
5. It could be seen that charges have been framed in the matter by the court below. Therefore, this Court had entertained a doubt whether the matter involved is covered Crl.R.P. No. 349 of 2014 -: 3 :- by Section 460(e) Cr.P.C., which makes the matter as a mere irregularity which does not vitiate the proceedings.
6. The learned counsel for the petitioner has pointed out that North Malabar Gramin Bank can only be treated as a Central Government institution and therefore, as per the Regulations, the CBI or the Central Vigilance Commission or such other authorities only could initiate criminal proceedings as well as conduct investigation in relation to the allegations of misconduct against its employees. It is argued that, therefore, the proceedings against the petitioner before the court below are not legally sustainable.
7. According to the learned counsel for the petitioner, the North Malabar Gramin Bank could only be treated as a Central Government institution in which the State Government has no control at all. The learned counsel for the petitioner has invited the attention of this Court to the decision in Chandra Prakash Singh and others v. Chairman, Purvanchal Gramin Bank and Crl.R.P. No. 349 of 2014 -: 4 :- others[(2008) 12 SCC 292] wherein it was held that the State Government does not have any control over the Gramin Bank and that the State Government ex facie does not exercise any control over Gramin Bank since Gramin Banks are governed by the policies of the Central Government, as per Section 29 of the Regional Rural Banks Act, 1976.
8. The attention of this Court has also been invited by the learned counsel for the petitioner to the decision in Prathama Bank, Head Office, Moradabad through its Chairman v. Vijy Kumar Goel and another[(1989) 4 SCC 441]. In the case relating to the said decision, the State of U.P. was holding 15% of the total share capital of the Bank and in that case it was argued that the State of Utter Pradesh was having control over the said regional rural banks constituted under Section 3 of the Regional Rural Banks Act, 1976. It has come out that the said Bank was sponsored by a nationalised bank. In Prathama Bank Crl.R.P. No. 349 of 2014 -: 5 :- (supra) it was held that the provisions of the Regional Rural Banks Act make it clear that the Regional Rural Banks are under deep and pervasive control of the Central Government and have been established as its instrumentality. It was also held that although 15% of the total capital of the Bank has been contributed by the State of Uttar Pradesh, it has no controlling power, and none of the conditions mentioned in Section 2(b) of the U.P. Act is satisfied, and therefore, the plaintiff-respondent is not a "public servant" within the limited meaning of the expression used in the U.P. Act. It was held therein that the U.P. Act had no application at all and such an employee of the said Bank could not have been treated as a "public servant" within the meaning of the U.P. Act.
9. From all the above, it is evident that it is the Central Government who has power and control over the North Malabar Gramin Bank. Annexure A6 is the North Malabar Gramin Bank(Officers and Employees) Service Crl.R.P. No. 349 of 2014 -: 6 :- Regulations 2000. Regulation No.42 and 42(i) of the above said Regulations read as follows:
"Notwithstanding anything contained in these Regulations, the following provisions shall apply where it is alleged that an officer or employee has been guilty of corrupt practices, namely:
(i) Where it is alleged that an officer or employee is possessed of disproportionate assets or that he has committed an act of criminal misconduct or where the investigation and proof of the allegation would require the evidence of persons who are not officers or employees of the Bank or where, in the opinion of the Chairman, the investigation into the allegations cannot be conveniently undertaken by the Bank, the investigation into the allegations may be entrusted to the Central Bureau of Investigation or the Central Vigilance Commission or such other Authority as may be approved by the Crl.R.P. No. 349 of 2014 -: 7 :- Chairman."(Emphasis supplied)
10. As per the said Regulations, it seems that in case an investigation could not be undertaken by the Bank itself into the allegations of criminal misconduct of an employee of the Bank, the same may be entrusted to the Central Bureau of Investigation or the Central Vigilance Commission or 'such other Authority', as may be approved by the Chairman.
11. The learned Public Prosecutor has pointed out that the terms "such other Authority" as contained in Regulation 42(i) clearly empowers the State Investigating Machinery or the VACB to take up the task of investigation of a criminal misconduct of an employee of the North Malabar Gramin Bank.
12. The learned counsel for the petitioner has rightly pointed out that by applying the principle of ejusdem generis the terms "such other Authority" have to be read along with the earlier two Authorities prescribed in the said regulation. It shows that when an investigation by the Bank is possible Crl.R.P. No. 349 of 2014 -: 8 :- in the matter, the Bank could undertake it. If not, the investigation has to be entrusted to the CBI or the Central Vigilance Commission or 'such other Authority'. Evidently, 'such other Authority' mentioned in the said provision means a Central Government Authority.
13. The learned Senior Counsel has invited the attention of this Court to Paragraph 14(a) of the Manual of Vigilance and Anti-Corruption Bureau which says about the main functions of the Bureau. As per the same, the main function of the Bureau is to effectively combat corruption and misconduct on the part of the Government Servants and other Public Servants of the State. The learned Senior Counsel has pointed out that therefore, the activities of the VACB is limited to investigations into the corruption and misconduct on the part of the Government servants and other public servants of the State and not the Central Government.
14. The learned Senior Counsel has further invited Crl.R.P. No. 349 of 2014 -: 9 :- the attention of this Court to Paragraph 35(ii) of the Manual which says that instances of corruption and misconduct relating to the public servants under the Central Government received by the Bureau may be brought to the notice of the appropriate authorities. Therefore, it is evident that when the instances of corruption and criminal misconduct relating to the Public Servants under the Central Government have been received by the Bureau, the same may be brought to the notice of the appropriate authorities. If, as a matter of fact, the VACB is empowered to investigate or deal with the complaints of misconduct or complaints of corruption relating to the Public Servants under the Central Government, the same would have been specifically mentioned in the said provision. On the contrary, the VACB has been advised through the said provision to bring such aspects to the notice of the appropriate authorities.
15. Matters being so, in this particular case, the appropriate authority could only be the CBI or the VACB or Crl.R.P. No. 349 of 2014 -: 10 :- such other Central Government Authorities.
16. This is a case wherein cognizance has been taken by the court below on the final report filed by the VACB under Section 173(2) Cr.P.C. When cognizance has been taken by the court below, it has to be considered whether the same is covered by Section 460(e) of Cr.P.C. As per Section 460(e) Cr.P.C., if any Magistrate, who is not empowered by law to do any of the following things namely, to take cognizance of an offence under clause (a) or clause
(b) of sub-section (1) of Section 190, takes cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190, it could only be an irregularity which does not vitiate the proceedings. The learned Senior Counsel has distinguished the said provision by stating that this is not a case wherein cognizance was taken by a court which is not empowered to take cognizance. It has been pointed out that the said provision relates not to the inherent lack of jurisdiction to take cognizance, whereas it relates to matters Crl.R.P. No. 349 of 2014 -: 11 :- relating to territorial jurisdiction or a Magistrate who was not empowered to take cognizance has taken cognizance of. Even in a case wherein a Magistrate, who has no territorial jurisdiction, has taken cognizance of an offence, under clause (a) or clause (b) of sub-section (1) of Section 190 Cr.P.C., it can only be an irregularity, which does not vitiate the proceedings.
17. Similarly, when a Magistrate of second class, who was not empowered to take cognizance of an offence, has taken cognizance of an offence, which ought to have been taken cognizance of by a Judicial First Class Magistrate, in such case also it could only be an irregularity which does not vitiate the proceedings.
18. Here, in this particular case, according to the learned Senior Counsel, there was inherent lack of power or authority on the part of the VACB to register the crime as well to investigate the offences involved. When such an instance was brought to the notice of the VACB, the VACB Crl.R.P. No. 349 of 2014 -: 12 :- ought to have brought to the notice of it to the Central Government Authorities, as per the regulations. When the crime was registered by the VACB without any power or authority, it is a matter which cuts the root of the transaction. In such a case, the FIR as well as the final report filed by the VACB before the court below can only be considered as nonest in the eye of law.
19. Much discussion is not required to conclude that the entire observations made by the VACB in the matter is patently illegal and the said illegality cannot be cured by the fact that the Chairman of the Bank has approved it, or the court below has taken cognizance of the offences and the court below has chosen to frame charges. Matters being so, the impugned order is liable to be set aside. Over and above it, by exercising the powers under Section 482 Cr.P.C., all further proceedings in C.C.41 of 2008 of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur, and FIR No.07/2003-Ekm and the final Crl.R.P. No. 349 of 2014 -: 13 :- report in it are liable to be quashed.
In the result, this Crl.R.P. is allowed, the impugned order is set aside and all further proceedings in C.C.41 of 2008 of the Court of the Enquiry Commissioner and Special Judge(Vigilance), Thrissur, and FIR No.07/2003-Ekm and the final report in it are hereby quashed. It is made clear that this order shall not stand in the way of the Bank in conducting an investigation by the Bank themselves or to report the matter to the CBI or Cetral Vigilance Commission, or other Central Authority for the registration of a fresh case and for investigation in the very same matter.
This Court records its deep appreciation in the able and earnest assistance rendered by the learned Senior Counsel Sri.Vijaya Bhanu as amicus curiae.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy // P.S. to Judge.