Madras High Court
S.Sebastine vs The Inspector Of Police on 18 February, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.OP(MD)No.19103 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 14.02.2020
Judgment Pronounced on : 18.02.2020
CORAM:
THE HONOURABLE Mr.JUSTICE M.NIRMAL KUMAR
Crl.O.P.(MD)No.19103 of 2019
S.Sebastine ... Petitioner / Accused No.9
Vs.
The Inspector of Police,
Vigilance and Anticorruption Wing
Madurai Detachment, Madurai
(Crime No.3 of 2015) ... Respondent / Complainant
PRAYER: Petition is filed under Section 482 of Criminal Procedure
Code, to call for the records relating to Crime No.3 of 2015, on the
file of the Inspector of Police, Vigilance and Anti Corruption Wing,
Madurai Detachment, Madurai and quash the proceedings in
respect of petitioner herein.
For Petitioner : Mr.S.Hameed Ismoil
For Respondent : Mr.M.M.Chandrasekaran
Addl.Public Prosecutor
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Crl.OP(MD)No.19103 of 2019
ORDER
This Criminal Original Petition has been filed by the petitioner, seeking to quash the proceedings in Crime No.3 of 2015, on the file of the Inspector of Police, Vigilance and Anti Corruption Wing, Madurai Detachment, Madurai, in respect of petitioner herein.
2. The petitioner, who is A9 in Crime No.3 of 2015, has filed this Quash Petition. Earlier to it, he had filed Crl.O.P(MD)No.16266 of 2018, for the similar prayer and the same came to be dismissed by this Court, by order dated 17.09.2018.
3. The brief facts of the case is as follows:-
(i) The case was registered against the accused on the allegation of non-collection of Infrastructure and Basic Amenities Charges (in short, “I&A Charges”), for multi storied and special buildings. The Government has issued orders in G.O.Ms.No.191, Housing and Urban Development, dated 01.06.2007, directing the Infrastructure and Basic Amenities Charges shall be collected at the rates not exceeding in the table given therein. Along with the 2/13 http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 Government Orders, Circulars have been communicated to the Corporation of Madurai, through the Local Planning Authority and the respective authorities to collect I&A charges and after collection of charges planing permission to be issued. During the period 2007 and 2010 the accused in this case, in connivance with the petitioner, entered into criminal conspiracy with each other and agreed to do the illegal acts by illegal means to commit the offence of cheating, criminal breach of trust so as to get pecuniary advantage for themselves, conspired together to achieve their common design and thereby, involved in criminal breach of trust, cheated and causing wrongful loss to the Government, to the extent of Rs.18,41,28,623/-, by not collecting I&A charges, as indicated in G.O.Ms.No.191, dated 01.06.2007.
(ii). The petitioner though was directed by Government to collect I&A charges from each owner and builder of multi storied buildings and special buildings, before approving the planning permission at the Corporation limits, failed to collect the said charges. The petitioner, during the period as Commissioner of Corporation, who was entrusted with supervision and control over the subordinates A1 to A8, failed to supervise their work, failed to collect the I&A charges and abetted in the commission of the 3/13 http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 offence. Further, shown illegal favour to the owners / promoters of multi storied buildings and special buildings, by abusing his official position, as public servant, by corrupt and illegal means, in order to get pecuniary advantages. Hence, the case against them have been filed, for the offence under Sections 120-B, 420, 406, 409 IPC., r/w 109 IPC., and Section r/w 13(2), 13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988.
4. As earlier mentioned, this present quash petition Crl.O.P(MD)No.19103 of 2019 and the earlier quash petition Crl.O.P(MD)No.16266 of 2018, which was dismissed by this Court on 17.09.2018, are identical. In fact, it is from paragraphs 1 to 12 of the quash petition are verbatim the same, except for paragraph
13. It is mentioned that one of the accused viz., A1 / Murugesan had filed Crl.O.P(MD)No.2760 of 2019 and this Court, while dismissing the same, by order dated 05.03.2019, has observed as follows:-
“2. It appears that after filing of the criminal original petition, the sanctioning authority accorded sanction to prosecute the accused persons.
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3. In view of the above, the learned Senior Counsel appearing for the petitioner submits that it would suffice to give liberty to the petitioner to challenge the sanction order.
4.The learned Additional Public Prosecutor would submit that after filing the FIR the sanctioning authority accorded sanction of prosecution and in the light of the sanction order, appropriate decision will be taken in appropriate time.
5.Considered the limited request made by the learned senior counsel appearing for the petitioner, this criminal original petition is disposed of with liberty to the petitioner to work out his remedy in the manner known to law. Consequently, connected miscellaneous petition is closed.”
5. Taking que from the same, this petition has been filed. In sum and substance, this petition has been filed to the limited extent of challenging the issuance of sanction for prosecution against the petitioner. As regards the other contention, this Court in Crl.O.P(MD)No.16266 of 2018 had given a finding. In view of the 5/13 http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 same, this Court, now considering the submissions of the petitioner with regard to sanction order.
6. The contention of the petitioner is that in the sanction order it is referred that G.O.Ms.No.191, Housing and Urban Development Department, dated 01.06.2007 and connected Proceedings / Circulars of Director of Town and Country Planning, Chennai, were despatched to the Commissioner of Madurai Corporation, from Member Secretary, Local Planning Authority, Madurai, vide Na.Ka.No.1157/2007/Mathi 3, dated 14.09.2007 and it was received by one Ms.Vijayarani, Assistant, Record Section of Madurai Corporation, in local Tapal Despatch Register of Local Planning Authority, Madurai, dated 20.09.2007 and acknowledged by her.
Further, in connection with the collection of Infrastructure and Basic Amenities Charges, a letter in Na.Ka.No.2003/2007/Mathi-3, dated 14.08.2008 of Thiru Murali, Member Secretary, Local Planning Authority was also despatched to Commissioner of Corporation, on 20.10.2008 and was acknowledged by Vijayarani and nowhere it is stated that it was brought to the Notice of the petitioner.
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7. The learned counsel for the petitioner further submitted that the Government itself was not certain while issuing the Government Order and there were several Government Orders on the same subject, which were in the nature of clarification and that is the reason, the I&A charges could not be collected, while granting building permission and planning permission, thereafter, later, the major portion of I&A charges were recovered, admitted that there are some portion of the charges running to several crores are to be collected. In the meanwhile, the builders approached the High Court and that is the reason for non-collection of the balance and for which, no criminality could be attached and sought for quashing of the sanction. In support of his contention, the learned counsel relied on the Judgment of Hon'ble Supreme Court in State of Haryana and Others Vs. Bhajan Lal and Others reported in (1992 Supp(1) Supreme Court Cases 335).
8. The learned Additional Public Prosecutor strongly objected to entertain this quash petition and submitted that this Court having dismissed the earlier quash petition of the petitioner in Crl.O.P(MD)No.16266 of 2018, by order dated 17.09.2018, the second petition, on the very same ground, cannot be entertained. 7/13 http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 As regards sanction for prosecution, a competent authority had gone into the materials produced, examined the materials such as statements of 259 witnesses, 265 documents placed before him and having applied his mind had issued sanction for prosecution by G.O.No.102, dated 11.10.2018 followed by a errata amendment in G.O.Ms.NO.63, dated 23.05.2019. Thus, the sanctioning authority after applying his mind and on perusal of the materials had rightly accorded the sanction, under Section 19(1)(b) of Prevention of Corruption Act. Further, nowhere it has been pointed out by the petitioner that there is error, omission or irregularities, while granting sanction, which resulted in failure of justice. The sanctioning authority is competent to issue sanction order. The learned Additional Public Prosecutor further submitted that during investigation it is proved that the Government Orders, Circulars and Communications had been received, acknowledged and the petitioner had perused the same. Further submitted that in this case investigation has been completed and charge sheet has been filed on 04.02.2020. The learned Additional Public Prosecutor in support of his contention, has relied on the Judgment of the Hon'ble Apex Court in P.L.Tatwal Vs. State of Madhya Pradesh reported in (2014 (11) SCC 431), wherein, in paragraph No.15, it has been held as follows:-
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http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 “15. Though the appellants made a specific objection in this regard before the Special Judge, unfortunately in the order dated 27.12.2004, it is seen that there is no inquiry by the court in this regard. There is no reference at all to the recommendation made by the Municipal Commissioner. Before the High Court also, though the submissions were reiterated, the only consideration in that regard is available at paragraph 21 of the impugned order which reads as follows:
“21. It is not a case of the applicant that standing committee of the Municipal Corporation was not competent to grant sanction under section 19 of the Prevention of Corruption Act, 1988. Undisputedly, the competent authority had passed the orders of sanction against all the accused persons concerned. The order of the sanction was passed after considering the whole record of the case and proper application of mind. The applicant failed to demonstrate the order of sanction is suffering from non application of mind.” Thus, the learned Additional Public Prosecutor prayed for dismissal of the petition.9/13
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9. I have heard the learned counsel appearing on either side and perused the materials available on record.
10. Considering the rival submissions and on perusal of the sanction order it is seen that the Principal Secretary to Government, who is the competent person, had issued sanction order in G.O.Ms.No.102, dated 11.10.2018, followed by an Amendment / Errata in G.O.Ms.No.63, Municipal Administration and Water Supply (ME.4) Department, dated 21.05.2019 by the same sanctioning authority. On perusal of the sanction order, the details of the commission of the offence, the role played by the petitioner, details of various Government Orders, Circulars and other communication issued in connection with I&A charges. Further, it is seen that the Sanctioning Authority, on perusal of materials, such as, FIR, statement of witnesses, documents placed before him, perused and having applied his mind, satisfied himself and thereafter, accorded sanction. Further, it is to be seen that in this case, investigation has been completed and charge sheet has been filed.
11. The contention of the petitioner that the Government Orders / circulars and other connected proceedings were not 10/13 http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 brought to the Notice of the petitioner, cannot be accepted for the simple reason that, as Commissioner of Corporation of Madurai and holding such position in normal official function, the petitioner is bound to look into all the communications addressed to his office and there could be no reason to feign ignorance of non-receipt of the same. The Judgment of the Hon'Apex Court reported in (1992 Supp(1) Supreme Court Cases 335) (cited supra) relied on by the counsel for the petitioner is not applicable to the facts of the present case.
12. In view of no error, omission or irregularities pointed out in the sanction granted by the Authority and his competence, the sanction order cannot be said to be bad in law. This Court satisfied that the sanctioning authority has rightly granted sanction, on perusal of documents and records.
13. In the result, this Criminal Original Petition stands dismissed.
14.It is made clear that the observations made herein only for disposal of the above case. The proceedings pending before the 11/13 http://www.judis.nic.in Crl.OP(MD)No.19103 of 2019 Court below between the parties, to be decided on merits, uninfluenced by any of the observations and findings made in this petition.
18.02.2020
Index : Yes / No
Internet : Yes / No
MPK
To
1.The Inspector of Police,
Vigilance and Anti Corruption Wing,
Madurai Detachment,
Madurai
2.The Addl.Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
3. The Record Clerk
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.OP(MD)No.19103 of 2019
M.NIRMAL KUMAR, J.
MPK
PRE-DELIVERY ORDER MADE IN
Crl.O.P.(MD)No.19103 of 2019
18.02.2020
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