Kerala High Court
V.P.Arumughan vs State Of Kerala on 21 May, 2008
Author: K.P.Balachandran
Bench: K.P.Balachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2110 of 2007(C)
1. V.P.ARUMUGHAN, S/O THAMI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :21/05/2008
O R D E R
K.P. Balachandran, J.
---------------------------
Crl.R.P.Nos.2110, 553,
552, 1613, 87, 3080,
3079 & 3081 of 2007
---------------------------
COMMON ORDER
All these revision petitions arise out of C.C. No.2/99 on the file of the Court of the Enquiry Commissioner and Special Judge, Kozhikode, registered for offences under Sections 13(1)(c) and
(d) of the Prevention of Corruption Act, 1988 (for short 'the P.C. Act') read with Section 13(2) thereof and under Sections 409, 468, 471 and 120(b) IPC read with Section 34 thereof.
2. The matter relates to alleged commission of offences in the formation of Main Canal of Moolathara Right Bank Canal under the Kuriarkutty- Karappara Irrigation Project of Kozhinjampara in Palakkad District. In the course of execution of the work, the Vigilance and Anti Corruption Bureau (VACB) registered V.C.No.1/97 under Sections 13(1)
(c) and (d) read with Section 13(2) of the P.C. Act CRRP 2110/07 & con. cases 2 and under Sections 409, 468, 471 and 120(b) IPC read with Section 34 thereof against seven accused and submitted final report after due investigation in the case alleging that a loss to the tune of Rs.57,10,225/- is caused to the Government by disbursement of an amount of Rs.1,56,52,656/- to the contractor, who executed the work by measuring the quantity of the earth work done as 1,10,416.59 m3 as per the measurement book, whereas, actually, the earth work of 88,873.08 m3 costing Rs.99,42,431/- alone had been executed by the contractor, who is the seventh accused in the case. Consequently, further execution of the work also was caused to be stopped.
3. In the meanwhile, O.P.No.445/00 was filed by certain residents of Kozhipathy Village, seeking for a direction to the Government being issued to resume and complete the canal work, which was stopped half way due to registration of the CRRP 2110/07 & con. cases 3 vigilance case, so as to have water provided to the petitioners in the original petition and other residents of Kozhipathy Village during that financial year itself, declaring further that the respondents therein are bound to provide water for drinking and irrigation facilities to the residents of Kozhipathy Village through the Moolathara Right Bank Canal. This Court, allowed the original petition vide judgment dated 23.2.2000. The direction in the judgment is extracted below for convenience of reference:
"In the above circumstances, I direct respondents 1 to 3 to resume and complete the work expeditiously and in any event, within six months from the date of receipt of a copy of this judgment."
In compliance with the above judgment, for resuming the work, measurement of the earth work already CRRP 2110/07 & con. cases 4 executed was again taken and thereupon it was found that the quantity of the earth work actually done was 1,10,802 m3, which is more than the work measured by the Engineers in charge of the work as per the measurement book, which was only 1,10,416.59 m3. Obviously, the measurement so taken will cut at the root of the prosecution case and therefore, the Government ordered re-investigation, accepting the report of the Vigilance Director. Accordingly, the Investigating Agency sought for leave of the Enquiry Commissioner and Special Judge to have re-investigation in the case conducted.
4. The Enquiry Commissioner and Special Judge, Kozhikode rejected the request to grant leave for re-investigation in the case being conducted. The order was challenged by the State by filing Crl.M.C.No.8745/01 before this Court and this Court, vide order dated 21.12.2001 in the said Crl.M.C., granted permission for conduct of further investigation in the case, quashing the order CRRP 2110/07 & con. cases 5 passed by the Enquiry Commissioner and Special Judge, refusing leave for re-investigation. Accordingly, the VACB, Palakkad conducted further investigation in the case and the Investigating Officer submitted factual report in V.C.No.1/97 on 21.11.2003 to the effect that allegations are found to be baseless and no action is, therefore, recommended in the case and requesting to accord sanction to treat the case as one registered on "mistake of fact". The Vigilance Department was not prepared to accept the recommendations in the factual report and they obtained expert opinion from the Vigilance Executive Engineer, whose recommendation was to the effect that there is nothing wrong in accepting the measurement recorded by the Investigating Agency initially and fixing the quantity of earth work done, as assessed then, as 88,873.08 m3, which was based on tape measurement and that the first final report can therefore be considered as more reliable and CRRP 2110/07 & con. cases 6 correct. Accordingly, final report was submitted by another Deputy Superintendent of Police recommending prosecution of the accused on the original final report, adding also, however, additional accused 8 to 11, deleting Accused Nos.10 and 12. It is in the above back drop that the case came up for preliminary hearing before the Enquiry Commissioner and Special Judge, Kozhikode.
5. Accused Nos.1, 3, 4 and 7 respectively filed Crl.M.P.Nos.653/06, 654/06, 655/06 and 607/06 praying for discharge. The latter two petitions were dismissed by the court below vide order dated 29.12.006 and the first two petitions were dismissed by the court below vide order dated 10.1.2007. Crl.R.P.Nos.2110/07, 553/07, 552/07 and 1613/07 are filed respectively by Accused Nos.1, 3, 4 and 7, assailing the orders so passed by the court below refusing discharge prayed for by them. The 9th accused filed Crl.M.P.Nos.30/00 and 212/00 in the court below. The prayer in crl.M.P.No.30/00 CRRP 2110/07 & con. cases 7 was for discharge and the prayer in Crl.M.P.No. 212/00 was to adjudicate the applicability of Article 194 of the Constitution of India as a preliminary issue. The court below dismissed both the above petitions, vide common order dated 20.10.2006 and it is assailing the said order, Crl.R.P.No.87/07 is filed by the 9th accused.
6. Accused Nos.5, 6 and 11 were discharged by the court below allowing applications filed by them respectively as Crl.M.P.Nos.169/01, 478/06 and 166/01 by common order dated 20.10.2006. It is assailing the discharge so ordered of Accused Nos.5, 6 and 11 that the State has preferred respectively Crl.R.P.Nos.3080/07, 3079/07 and 3081/07.
7. All these revision petitions were heard together as desired by the Public Prosecutor as also by the learned counsel appearing for the petitioners in the case.
CRRP 2110/07 & con. cases 8
8. It is vehemently contended before me by the learned counsel for the petitioners in Crl.R.P. Nos.2110/07, 553/07, 552/07, 1613/07 and 87/07 that the orders assailed in these revision petitions filed by Accused Nos.1, 3, 4, 7 and 9 are incorrect, illegal and improper; that the very foundation of the prosecution case does not exist as on proper measurement, on re-investigation, it was found that the actual quantity of work done was much more than the quantity that had been measured on the basis of which payment was made to the contractor and no loss at all had actually been caused to the State; that even the State sought for leave for re-investigation filing Crl.M.C.No. 8745/01 before this Court alleging that the prosecution case will crumble down if re- investigation is not allowed, as it has come out in evidence that the measurement recorded in the first investigation is incorrect; that further investigation revealed that the quantity of work actually CRRP 2110/07 & con. cases 9 executed is much more than what had been measured on third measurement and that it is suppressing the factual report submitted by the Investigating Officer on re-investigation that a final report had been submitted before court praying for prosecution being conducted on the basis of the first final report submitted before court; that however, a further amount of Rs.24,30,505/- found payable on the measurement made on a fourth occasion by the vigilance during re-investigation was also disbursed to the Contractor accepting the quantity of earth work measured by them as 1,27,561.807 m3 and that when excess payment is made to the contractor over and above what has been paid by the accused based on the measurement made on a fourth occasion by the vigilance on re-investigation, it does not lie in the mouth of the prosecution that for the purpose of prosecution, the first final report has to be accepted and the accused tried on the basis thereof.
CRRP 2110/07 & con. cases 10
9. It is also contended on the basis of Annexures-XVI to XXIII that financial and technical sanction were given for the Kuriarkutty-Karappara Irrigation Project as early as in 1995 and that there is absolutely no merit in any of the allegations made against the accused and there is absolutely no material also on record, which enables charge being framed against the petitioners and that therefore, the petitioners in the above revision petitions be discharged setting aside the orders impugned. It is further contended by the learned counsel for the petitioners that there is absolutely no justification in charge being framed against the petitioners when Accused Nos.5, 6 and 11 were discharged vide orders impugned in Crl.R.P. Nos.3080/07, 3079/07 and 3081/07 by the Government.
10. The case of the prosecution as per the final report submitted on the first occasion was that an amount of Rs.1,56,52,656/- was paid to the contractor for the earth work of 1,10,416.59 m3 as CRRP 2110/07 & con. cases 11 per the measurement book, whereas, actually earth work of 88,873.08 m3 costing Rs.99,42,431/- alone had been done by the seventh accused, the contractor, who executed the work and thus, a loss to the extent of Rs.57,10,225/- is caused to the Government. Had trial proceeded on the basis of the said allegation, probably, it would have been difficult for the petitioners to contend that there is no material for framing charge against them and that they are liable to be discharged. However, when this Court ordered to implement the scheme as originally proposed, when abandoning of the work half way was complained of by the petitioners in O.P.No.445/00, as evidenced by Annexure-II produced along with Crl.R.P.No.553/07, the Irrigation Department was constrained to proceed with the execution of the balance work as well. Thus, for resuming the work, measurement of the work already executed had to be finally taken and for the purpose, a second measurement was taken and CRRP 2110/07 & con. cases 12 thereupon, it was found that the quantity of the earth work done was 1,10,802 m3. This, in fact, was more than the quantity of work measured in the measurement book for which the contractor was paid for. This necessitated the prosecution to move for re-investigation. For convenience, Annexures are referred to as in Crl.R.P.No.553/07.
11. The Director of VACB, Palakkad, vide Annexure-VIII, sough for permission of the Government to have further investigation conducted in the case and the Government vide Annexure-IX order granted sanction for further investigation subject to permission of the court being obtained under Section 173(8) Cr.P.C. However, when permission for re-investigation was sought for, the Enquiry Commissioner and Special Judge refused leave sought for and therefore, Crl.M.C.No.8745/01 was filed by the State assailing the order of the trial court refusing leave for further investigation being conducted. Annexure-X is the CRRP 2110/07 & con. cases 13 copy of the Crl.M.C. so filed by the Government. This Court, vide Annexure-III order, allowed the said crl.M.C. and granted permission for conducting further investigation in the case quashing the order of the Enquiry Commissioner and Special Judge impugned in the said Crl.M.C. In the course of further investigation, measurement of the earth work done was taken on a fourth occasion by the vigilance with necessary assistance of the Irrigation Department and the Engineer of the Vigilance Department and the measurement so taken revealed that the actual quantity of work done is 1,27,561.807 m3, the value of which will work out to Rs.1,76,18,194/-. Consequently, the difference that was to be paid to the contractor (A7), who executed the work will be an additional amount of Rs.24,30,505/-, as seen calculated in Annexure-IV factual report dated 21.11.2003. Annexure-VI running account bill in relation to the work in the name of the seventh accused shows that on the basis CRRP 2110/07 & con. cases 14 of the subsequent measurement so made by the Investigating Agency, payment of a further amount of Rs.19,65,538/- also is made to the contractor (A7), who executed the work on 21.10.2004. This means that the measurement recorded on the fourth occasion by the vigilance during further investigation as 1,27,561.807 m3 was accepted by the Department and the additional amount due for so much quantity of work was also paid to the contractor, accepting the said measurement as true and genuine. It is on the basis of the measurement thus recorded that in Annexure-IV factual report the Investigating Officer has concluded that no record has been falsified nor conspiracy has been committed to misappropriate Government money and no misappropriation has taken place and that it is proved conclusively that no loss has been sustained to the Government and no pecuniary advantage has been obtained by the contractor and hence no falsification of records or cheating the Government CRRP 2110/07 & con. cases 15 or criminal conspiracy for those ends is committed.
12. It is astonishing to note that still the Investigating Agency wants the accused being tried for the offences alleged falling back on the materials based as foundation for submission of the first final report. It is worthy to mention in this context that to a query made from this court to the Public Prosecutor as to whether any action is proposed to be taken against the officials, who have sanctioned and made payment of further amounts to the contractor, accepting the quantity of work assessed on re-investigation as 1,27,561.807 m3, the answer was "the Government may or may not initiate action". It cannot be forgotten that the Public Prosecutor is representing the State and the Court cannot accept such adamant and impertinent stand taken by the Public Prosecutor or the Government, when answering such queries from court, especially when, it goes without saying that if payment is made for the quantity of work measured CRRP 2110/07 & con. cases 16 by the vigilance with the assistance of the Irrigation Department in the course of further investigation is accepted and payment is made for that much quantity as well, no case against the accused can stand for a moment for any excess payment having been made to the contractor, rendering loss to the Government by the accused, conspiring among themselves. There is absolutely no foundation at all for the prosecution case and there is no material at all to frame charge against any of the accused for any offence alleged. In the circumstances, the orders impugned in Crl.R.P.Nos. 2010/07, 553/07, 552/07, 1613/07 and 87/07 deserve to be set aside and the petitioners therein, who are Accused Nos.1, 3, 4, 7 and 9, deserve to be discharged. For the same reasons, the orders assailed in Crl.R.P.Nos.3080/07, 3079/07 and 3081/07 filed by the Government challenging the discharge of Accused Nos.5, 6 and 11 is devoid of merit and deserve to be dismissed.
CRRP 2110/07 & con. cases 17
13. It is vehemently contended by the Public Prosecutor that the third accused filed Crl.M.C.No. 320/05 and the sixth accused filed Crl.M.C.No. 602/05 before this Court and those were dismissed by common order dated 10.7.2006 and therefore, the third and sixth accused were not at all entitled to canvass for a discharge. It is worthy to note that these are revisions filed against orders passed on petitions filed before the trial court seeking for an order of discharge and not an application filed under Section 482 of the Cr.P.C. seeking for an order quashing the proceedings. It is also worthy to note in this context the decision of the Apex Court in Superintendent and Remembrancer of Legal Affiars, West Bengal v. Mohan Singh (AIR 1975 SC 1002), wherein, the Apex Court held that rejection of prior application for quashing the proceedings is no bar for quashing the criminal proceedings on the ground of absence of prima facie case and that proceedings may be quashed by the High Court to CRRP 2110/07 & con. cases 18 prevent abuse of process of court and to secure ends of justice and that the fact that similar application for quashing the proceedings on a former occasion was rejected by the court on the ground that questions involved were purely questions of fact, which was for the court of fact to decide, is no bar to the quashing of the proceedings at a later stage. Thus, the contention advanced by the Public Prosecutor that in view of dismissal of Crl.M.C.Nos.320/05 and 602/05, Accused Nos.3 and 6 are not entitled to canvass for a discharge is unsound and is rejected.
14. It is further vehemently contended by the Public Prosecutor, on the basis of the decision of the Apex Court in State Anti-Corruption Bureau, Hyderabad v. P.Suryaprakasam (1999 SCC (Crl.) 373), that at the stage of framing of the charge, the Court is required to consider only the police report and the documents sent with it under Section 173 Cr.P.C. and is not justified in looking into CRRP 2110/07 & con. cases 19 the documents filed by the accused and relying upon them to conclude that no offence was committed by them. In the instant case, what the Public Prosecutor wants this Court to ignore for the purpose of upholding his contentions is Annexure-IV factual report dated 21.11.2003 submitted by the Dy.S.P. of VACB, Palakkad, after re-investigation of the case, recommending to treat the case as one registered on "mistake of fact", as the allegations are found to be baseless. It is not a document, which requires proof on their side, but is a document of the prosecution itself and is one produced by them in the earlier proceedings and the authenticity of Annexure-IV factual report is not at all challenged by the Public Prosecutor. In this context, it is worthy to refer to the decision of the Apex Court in Magraj Patodia v. R.K.Birla (AIR 1971 SC 1295), wherein, the Apex Court had occasion to hold while considering Section 3 of the Evidence Act that the fact that a document was CRRP 2110/07 & con. cases 20 procured by improper or illegal means will not be a bar to its admissibility, if it is relevant and its genuineness proved, though while examining the proof given as to its genuineness the circumstances under which it came to be produced in court have to be taken into consideration.
15. In the instant case, the factual report is one obtained by the petitioners/accused making applications in that behalf under the Right to Information Act and the authenticity is not disputed for a moment by the prosecution. Hence, there is nothing wrong in considering the said document for the purpose of appreciation of the case. In the instant case, it appears that the Vigilance Department had already formed an opinion regarding the guilt of the accused when commission of the offence itself is yet to be proved and are proceeding in an unfair manner so as to have the accused prosecuted knowing well that the prosecution is not to end in a conviction of the CRRP 2110/07 & con. cases 21 accused. It cannot be forgotten that the penal provisions of law are not to be put to use to work out harassment only when to the knowledge of the Investigating Agency there exists not even a prima facie case against the accused.
16. Annexure-VII final report shows that the eighth accused was discharged by court vide order dated 30.12.1999 for want of sanction and the tenth accused was discharged by this Court vide order dated 31.3.2000 in Crl.M.C.No.922/00. In the last but one paragraph of Annexure-VII final report, the Investigating Officer submits that the eighth accused retired from service on 31.3.2002 and hence prosecution sanction is nor required at present and he can be proceeded against. The stand so taken is ignoring the order of discharge of the eighth accused passed by the court on 30.12.1999. The records shows that the Director of Vigilance was obtaining legal opinion in the matter for the purpose of proceeding further as against the CRRP 2110/07 & con. cases 22 petitioners ignoring Annexure-IV factual report. In fact, the Legal Advisor or the Public Prosecutor has no role to play in the matter of investigation of the case as has been held by the Apex Court in R.Sarala v. T.S.Velu (AIR 2000 SC 1731). It is also worthy to note that the Apex Court has in H.N.Rishbud v. State of Delhi (AIR 1955 SC 196) held that, while considering a case under the P.C. Act, formation of opinion as to whether or not there is a case to place the accused on trial is to be that of the Officer in charge of the police station and that there is no provision permitting delegation thereof, but only a provision entitling superior officers to supervise or participate under Section 551 of the Code of Criminal Procedure, 1898.
17. The contention advanced by the Public Prosecutor that at the stage of framing of charge what the court is to consider is only as to whether a prima facie case is made out and as to whether CRRP 2110/07 & con. cases 23 there exists ground for presuming that the accused has committed offence and for that purpose documents produced by the accused cannot be relied upon is not of any merit, in view of the decision of the Apex Court in Suryalakshmi Cotton Mills v. Rajvir Industries Ltd. (2008 (1) KHC 337), wherein, the Apex Court, considering Section 482 of the Cr.P.C., has held that the documents of unimpeachable character can be taken into consideration for the purpose of finding out as to whether continuance of the criminal proceedings will amount to an abuse of the process of court. The decisions cited by the Public prosecutor, namely, State of Orissa v. Debendra Nath Padhi (2005 (1) KLT 80) and J.P.Sharma v. Vinod Kumar Jain (AIR 1996 SC 833) are not decisions applicable on the facts available in the instant case. Same is the case with respect to the decision in State of Himachal Pradesh v. Shri.Pirthi Chand (AIR 1996 SC
977). The decisions of the Apex Court cited by the CRRP 2110/07 & con. cases 24 Public Prosecutor in Hardeo Singh v. State of Bihar (AIR 2000 SC 2245), State of Bihar v. K.J.D. Singh (1993 Crl.LJ 3537) and State of Bihar v. Shri.Rajendra Agrawalla (1996 Crl.LJ 1372) also have no application to the facts of this case, wherein the prosecution records itself evidence that there is absolutely no prima facie case against the accused in this case so as to enable charge being framed against them and they being put to trial. This is a fit case wherein this Court has to interfere to avoid abuse of the process of court and to cause unnecessary harassment to the accused by the vigilance, who are interested, as it appears from the records, only in prosecuting those with whom they have got vengeance and not assessing as to whether there is any merit in the case registered by them.
In the circumstances, Crl.R.P.Nos.2110/07, 553/07, 552/07, 1613/07 and 87/07 filed by the petitioners/Accused Nos.1, 3, 4, 7 and 9 deserve to CRRP 2110/07 & con. cases 25 be allowed and the accused discharged and they are accordingly allowed and the petitioners/Accused Nos.1, 3, 4, 7 and 9 are discharged. Crl.R.P.Nos. 3079/07, 3080/07 and 3081/07 filed by the State are devoid of merit and deserve only to be dismissed and they are, accordingly, dismissed. 21st May, 2008 (K.P.Balachandran, Judge) tkv