Kerala High Court
P.K.Sudheer vs State Of Kerala on 15 July, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939
Crl.MC.No. 1523 of 2017 ()
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V.C. NO.1/2017/SIU-II OF V & ACB, SIU-II, THIRUVANANTHAPURAM.
......
PETITIONER/ACCUSED NO.2:
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P.K.SUDHEER, AGED 43,
S/O.E.DAMODARAN NAMBIYAR,
P.K.HOUSE, ATHIYADAM,
PAZHAYANGADI P.O, CHERUTHAZHAM,
KANNUR DISTRICT.
BY SRI.B.RAMAN PILLAI (SENIOR ADVOCATE)
ADVS.SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.A.RAJESH
SRI.B.KRISHNA KUMAR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
THE HIGH COURT OF KERALA,
ERNAKULAM, KOCHI - 682031.
BY PUBLIC PROSECUTOR SRI.P.NARAYANAN
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 27-09-2017 ALONG WITH CRMC. 2839/2017, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
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Crl.MC.No. 1523 of 2017 ()
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APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE A : CERTIFIED COPY OF THE FIR IN
V.C.NO.1/2017/SIU - II, OF VACB, SIU-II,
THIRUVANANTHAPURAM.
ANNEXURE A1 : CERTIFIED COPY OF THE FIS IN
V.C. NO.1/2017/SIU-II, OF VACB, SIU-II,
THIRUVANANTHAPURAM.
ANNEXURE I : A COPY OF THE RELEVANT PAGES OF ARTICLES OF
ASSOCIATION OF KSIE LTD.
ANNEXURE II : A COPY OF GO(MS)NO.72/2006/IND DATED 15.7.2006.
ANNEXURE III : A COPY OF GO(MS)NO.100/2006/IND DATED 7.10.2006.
ANNEXURE IV : A COPY OF LR.NO.16017/H1/12/LSGD
DATED 13.6.2012.
ANNEXURE V : A COPY OF NOTE NO.56/M(IND&SPORTS)/16 OF
SRI.E.P.JAYARAJAN, THE MINISTER FOR INDUSTRIES
AND COMMERCE DATED 27.6.16.
ANNEXURE VI : A COPY OF LETTER NO.IND-H1/190/16-IND
DATED 30.6.2016.
ANNEXURE VII : A COPY OF GO(RT)NO.784/2016/ID DATED 20.8.2016.
ANNEXURE VIII : A COPY OF GO(RT)NO.783/2016/ID DATED 20.8.2016.
ANNEXURE IX : A COPY OF LIST OF APPLICANTS SHORT LISTED FOR
THE POST OF M.DS IN PSUS.
ANNEXURE X : A COPY OF SELECT LIST PREPARED BY THE INTERVIEW
COMMITTEE.
ANNEXURE XI : A COPY OF LETTER NO.E.873304/H2/16/ID OF THE
INDUSTRIES (H)DEPARTMENT.
ANNEXURE XII: TRUE COPY OF THE G.O.(MS)NO.525/64/HOME
DATED 21.12.1964 OF HOME (S) DEPARTMENT.
ANNEXURE XIII: TRUE COPY OF THE G.O.(P)MP/65/92/VIG.
DATED 12.5.1992 OF VIGILANCE ) DEPARTMENT.
ANNEXURE XIV: TRUE COPY OF THE G.O.(P)NO.18/97/VIG.
DATED 5.4.1997 OF VIGILANCE (C)DEPARTMENT.
ANNEXURE XV: TRUE COPY OF THE G.O.(P)NO.14/97/VIG.
DATED 25.3.1997 OF VIGILANCE (C)DEPARTMENT.
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Crl.MC.No. 1523 of 2017 ()
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ANNEXURE XVI: TRUE COPY OF THE G.O.(P)NO.34/97/VIG.
DATED 11.6.1997 OF VIGILANCE (C)DEPARTMENT.
ANNEXURE XVII: TRUE COPY OF THE G.O.(P)NO.46/97/VIG.
DATED 31.7.1997 OF VIGILANCE (E)DEPARTMENT.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE
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P.UBAID, J.
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Crl.M.C. Nos. 1523 & 2839 of 2017
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Dated this the 27th day of September, 2017
ORDER
The petitioner in Crl.M.C.No. 2839 of 2017 is the first accused in V.C.No. 1/2017 of the Vigilance and Anti Corruption Bureau (VACB), SIU-II, Thiruvananthapuram, registered under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act), and under Section 120B of the Indian Penal Code, and the petitioner in Crl.M.C.No. 1523 of 2017 is the second accused in the said crime. The first accused is a former Minister. The petitioners seek orders quashing the FIR and further proceedings against them in the said crime. The third accused in the crime is the Government Secretary, whose role was only to enforce the administrative orders of the portfolio Minister.
2. An appointment made by the former Minister is the subject matter of the present crime. The second Crl.M.C. Nos. 1523 & 2839 of 2017 -2- accused was appointed as the Managing Director of the Kerala State Industrial Enterprises Ltd. (KSIEL) by Government Order, G.O.(Rt.) No. 1017/2016/ID dated 01.10.2016. Finding something wrong, or when protest came from different quarters, the Minister passed orders on 03.10.2016 itself, to cancel the appointment, and accordingly on 13.10.2016, a Government Order was issued cancelling the appointment of the second accused. However, by the time, some complaints came, and on 06.01.2017, the present crime happened to be registered by the VACB on the basis of some findings made on a preliminary enquiry.
3. When Crl.M.C.No. 1523 of 2017 came up for admission and hearing on 23.02.2017, this Court had made some observations on a prima facie finding regarding the sustainability of the prosecution under Section 13(1)(d) of the PC Act, and the VACB was directed to file a proper and satisfactory report regarding the prospects of a prosecution Crl.M.C. Nos. 1523 & 2839 of 2017 -3- on the given allegations. At the initial stage, the VACB maintained a stand that prosecution on the allegations is possible under Section 13(1)(d) of the PC Act. Later, the court directed the VACB to report in specific terms on the factual and legal aspects of the essentials for such a prosecution under Section 13(1)(d) of the PC Act. It appears that when the court made such an order, the VACB started re-thinking, and thereafter came a report suspecting the scope of a prosecution. Finding that the said report is not satisfactory and convincing, this Court directed the VACB to file a definite report showing the definite stand of the VACB, whether this prosecution can be sustained. Now there is a report from the Investigating Officer that on a perusal of the materials, he could come to the conclusion that the given allegations will not come under Section 13(1)(d) of the PC Act, and there is no scope for further proceedings in the crime. Thus, practically, the VACB would concede that there is no scope for further proceedings in the crime, or that the Crl.M.C. Nos. 1523 & 2839 of 2017 -4- crime can be quashed.
4. Whether the appointment made by the former Minister is a privileged appointment where the appointing authority can use discretion, or a regular appointment governed by written rules and procedure, is a matter for examination. But in the present circumstances where the VACB has reported that there is no scope for a prosecution, I feel it not necessary to probe into those aspects.
5. Now the question is whether a prosecution under Section 13(1)(d) of the PC Act is possible on the given allegations. The appointment was assailed as an act of nepotism. Of course, nepotism will come under Section 13 (1)(d) of the PC Act. But, every act of nepotism is not punishable under Section 13(1)(d) of the PC Act. For a prosecution, there must be the required essentials and elements as prescribed under any of the three Clauses of Section 13(1)(d) of the PC Act. Under Clause (i), there must Crl.M.C. Nos. 1523 & 2839 of 2017 -5- be a situation where a public servant or any other person obtained some valuable thing or pecuniary advantage by some corrupt or illegal means, for a prosecution under Clause (ii), there must be a situation where a public servant or any other person obtained any valuable thing or pecuniary advantage by the act of the public servant abusing his position as a public servant, and for a prosecution under Clause (iii), the public servant must have obtained some valuable thing or pecuniary advantage without public interest, for some other person.
6. Whether it is under Clause (i), or Clause (ii), it is an essential requirement that either the public servant or any other person must have obtained some valuable thing or pecuniary advantage. For a prosecution under Clause (iii), the public servant must have obtained some valuable thing or pecuniary advantage for another person by using his position as public servant. Of course, a job or appointment can be said to be a valuable thing. But in this case, before Crl.M.C. Nos. 1523 & 2839 of 2017 -6- the second accused could join, the appointment was cancelled by the Government. It is pertinent to note that it was much thereafter, the crime happened to be registered. It appears that the VACB registered the crime without application of mind to the facts, and without verifying whether the very essential elements of the offence are satisfied. To make an instance of nepotism punishable under the PC Act, there must be a situation where the kith or kin of the public servant obtained some valuable thing or pecuniary advantage. Here, before the second accused could derive any benefit or obtain anything under the order of appointment, the Government cancelled the order. This is now the report of the Investigating Officer, that there is no situation where anybody has obtained any pecuniary advantage, or monetary benefit, or valuable thing. Rightly, the Investigating Officer has now reported that there is no scope for a prosecution under Section 13(1)(d) of the PC Act in this case on the given allegations. It is not known for Crl.M.C. Nos. 1523 & 2839 of 2017 -7- whom, or on whose advice, this crime was registered. Anyway, now the VACB has come to the conclusion that there is no scope for a prosecution. The court's finding is also that on the given allegations, the alleged act of nepotism cannot be the subject matter of a prosecution under Section 13(1)(d) of the PC Act. Thus, I find that continuance of the present prosecution will be nothing, but an abuse of legal process. This crime is, accordingly, liable to be quashed. The third accused is the Government Secretary who just happened to enforce the orders issued by the portfolio Minister.
In the result, the two petitions are allowed. The FIR and further proceedings in V.C.No. 1/2017 of the Vigilance and Anti Corruption Bureau, SIU-II, Thiruvananthapuram, will stand quashed under Section 482 Cr.P.C..
P.UBAID JUDGE ds 28/09/2017