Kerala High Court
Salim Gopal vs P K Joseph on 16 October, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936
Crl.MC.No. 722 of 2013 ()
--------------------------
Crl.M.P.No.2656/10 in CC 93/2010 of J.M.F.C. - I,
ETTUMANUR DATED 16.10.2012.
CRIME NO. 105/2009 OF ETTUMANOOR POLICE STATION, KOTTAYAM
PETITIONER(S)/ACCUSED 1 TO 4:-:
----------------------------------
1. SALIM GOPAL,
THALASSERIPARAMBIL, MANNANAM P.O., KOTTAYAM DISTRICT.
2. T.K.SANTHOSH,
THEVARMADATHIL, MUDAKUZHA P.O, PERUMBAVOOR
ERNAKULAM DISTRICT.
3. SONI MATHEW,
THOTTANANI, KANAKKARI P.O., KOTTAYAM DISTRICT.
4. J.JOSEPH,
UPPUTHUNKAL, ATHIRAMPUZHA, KOTTAYAM DISTRICT.
BY ADV. SRI.GEORGE SEBASTIAN
RESPONDENT(S)/DEFACTO COMPLAINANT AND STATE:-:
-----------------------------------------------
1. P K JOSEPH,
S/O.KURIAN, PEMALAYIL HOUSE, ETTUMANOOR P.O.
ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT-686631.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.BABU CHERUKARA
R1 BY ADV. SRI.P.A.SALIM
R BY PUBLIC PROSECUTOR ADV.SRI.RAJESH VIJAYAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
17-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 722 of 2013
APPENDIX
PETITIONER(S) EXHIBITS
ANNEXURE A. A TRUE COPY OF THE PRIVATE COMPLAINT (CMP 565/2009) FILED
BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-ETTUMANOOR.
ANNEXURE B. A TRUE COPY OF THE FIR IN CRIME 105/2009 OF THE
ETTUMANOOR POLICE STATION.
ANNEXURE C. A TRUE COPY OF THE FINAL REPORT IN CRIME 105/2009 OF THE
ETTUMANOOR POLICE STTION WHICH IS NOW PENDING AS CC 93/2010 BEFORE
THE JUDICIL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR.
ANNEXURE D. A TRUE COPY OF THE APPLICATION FOR DISCHARGE (CRL.MP
2656/2010 IN CC 93/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
ETTUMANOOR).
ANNEXURE E. A TRUE COPY OF THE ORDER DATED 16.10.2012 IN CRL.MP
2656/2010 IN CC 93/2010 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT, ETTUMANOOR.
ANNEXURE F. A TRUE COPY OF THE MINUTES OF THE KARMASAMITHI DATED
15.07.2008 WHICH WAS PRODUCED ALONG WITH THE FINAL REPORT.
ANNEXURE G. A TRUE COPY OF THE MINUTES OF THE PANCHAYATH COMMITTEE
HELD ON 22.07.2008 WHICH WAS PRODUCED ALONG WITH THE FINAL REPORT.
ANNEXURE H. A TRUE COPY OF THE RELEVANT PORTION OF THE ASSET REGISTER
OF THE ATHIRAMPUZHA GRAMA PANCHAYATH.
ADDITIONAL ANNEXURE I : TRUE COPY OF THE STATEMENT GIVEN BY THE 1ST
RESPONDENT UNDER SECTION 161 OF THE Cr.P.C.
ADDITIONAL ANNEXURE J : TRUE COPY OF THE STATEMENT GIVEN BY CHARGE
WITNESS NO.2 (CW2) UNDER SECTION 161 OF THE Cr.P.C.
RESPONDENTS' EXHIBITS
ANNEXURE-R1(a) : CERTIFIED COPY OF THE MINUTES OF THE VIKASANA
SEMINAR HELD ON 24.7.2008 OF THE ATHIRAMPUZHA GRAMA PANCHAYATH.
ANNEXURE-R1(b) : CERTIFIED COPY OF THE FORGED MINUTES OF THE VIKASANA
SEMINAR HELD ON 24.7.2008 OF THE ATHIRAMPUZHA GRAMA PANCHAYATH
PRODUCED BY RESPONDENTS 1 TO 4 BEFORE BLOCK DEVELOPMENT OFFICER.
ANNEXURE-R1(c) : TRUE copy OF THE RELEVANT PAGE OF THE "ANTHIMA
VARSHIKA PADHATHI REKHA 2008-2009" ISSUED BY THE ATHIRAMPUZHA GRAMA
PANCHAYATH.
//TRUE COPY//
P.A. TO JUDGE
ami/
V.K.MOHANAN, J.
-------------------------------
Crl.M.C.No.722 of 2013
-------------------------------
Dated this the 17th day of July, 2014.
O R D E R
The petitioners are accused in C.C.No.93/10 on the file of the court of Judicial First Class Magistrate-Ettumanoor. The 1st respondent is the de facto complainant. Initially, the 1st respondent herein approached the court below by filing Annexure A complaint alleging offences punishable under sections 167, 463, 464, 465, 468, 471 r/w 34 of IPC against the petitioners, which was forwarded to the Ettumanoor police station under section 156(3) Cr.P.C. and consequently, Crime No.105/09 was registered in the Ettumanoor police station. The police after investigation, have preferred Annexure C report, upon which, the court below took cognizance and instituted C.C.No.93/10. It is against the above proceedings, the petitioners, who are accused, preferred the present petition under section 482 of Cr.P.C.
2. The 1st petitioner herein is then working as Secretary Crl.M.C.No.722 of 2013 2 of Athirampuzha Grama panchayat and petitioner nos.2 and 3 are respectively working as the Junior Superintendent and Upper Division Clerk of the said panchayat. The 4th petitioner was the then President of Athirampuzha Grama panchayat. As per the allegation, the petitioners had created a document stating that a meeting of a Karmasamithi was convened on 15.7.2008 and the said document was used as a genuine document and the factum of convening of meeting of the Karmasamithi on 15.7.2008 was recorded in the minutes of the Panchayat committee held on 22.7.2008 and thus, according to the de facto complainant as well as the police, the petitioners/accused have committed the offences punishable under sections 167, 465, 468, 471 r/w 34 of IPC.
3. I have heard Adv.Sri.George Sebastian, the learned counsel appearing for the petitioners and Adv.Sri.P.A.Salim, the learned counsel appearing for the 1st respondent and Adv.Sri.Rajesh Vijayan, the learned Public Prosecutor for Crl.M.C.No.722 of 2013 3 the State.
4. The learned counsel for the petitioners, after taking me through Annexure A private complaint and the police report, specifically submitted that there is no material to show that the petitioners have falsely made or created any document as alleged in the complaint or in the report. After inviting my attention to Annexure G minutes dated 22.7.2008 of the Panchayat committee, it is submitted that there is no reference about Annexure F minutes dated 15.7.2008 of the Karmasamithi, which was allegedly fabricated by the petitioners. It is also the contention of the learned counsel that, in the light of Annexure C report and particularly in view of the averments in Annexure A complaint, the proceedings under the provisions of the Prevention of Corruption Act ought to have been initiated and therefore the proceedings, as per Annexure C, in the court of Judicial First Class Magistrate-Ettumanur, would not lie against the petitioners. It is also contended that in Crl.M.C.No.722 of 2013 4 view of Section 248 and Section 250 of Kerala Panchayat Raj Act, in the absence of sanction from the competent authority, the learned Magistrate is wrong in taking cognizance for the said offences against the petitioners and on that ground also, the proceedings pending before the court below are liable to be quashed. In support of the contentions, the learned counsel for the petitioners has placed reliance upon the decisions reported in Parminder Kaur Vs. State of Uttar Pradesh and another [(2010) 1 Supreme Court Cases 322] paragraph 29 and in Hydru Haji Vs. State of Kerala (2011(1) KLT 63) paragraphs 10, 14 to 18.
5. Contrary to the above contention of the learned counsel for the petitioners, the learned counsel for the 1st respondent, has strenuously submitted that as per the scheme of the Peoples Planning Programme, proposal from a properly constituted Karmasamithi has to be considered by the panchayat and on the basis of such proposal, it is for Crl.M.C.No.722 of 2013 5 the panchayat committee to finalise the scheme to be presented before the higher authorities. But in the present case, no such step was taken. But based on Annexure F minutes of the Karmasamithi meeting held on 15.7.2008, which is not a properly constituted Karmasamithi, the panchayat has taken decision, as per the meeting held on 22.7.2008 as evidenced by Annexure G minutes and submitted the proposals before the District Planning Committee. After inviting my attention, particularly, to item nos.7 and 31 in Annexure F and item nos.50 and 73 in Annexure G minutes dated 22.7.2008, the learned counsel for the 1st respondent submitted that item nos.7 and 31 in Annexure F are one and the same scheme programme and item nos.50 and 73 in Annexure G minutes, are also of the same proposal and project. To fortify the contention of the learned counsel for the 1st respondent, he placed reliance upon the decision reported in OM KR. Dhankar v. State of Haryana [2012(2) KLT 106(SC)].
Crl.M.C.No.722 of 2013 6
6. The learned Public Prosecutor also submitted by adopting the contentions advanced by the learned counsel for the petitioners that, though the averment in Annexure A complaint is to the effect that the petitioners have forged the document, the available materials does not reveal any such overtact against the petitioners.
7. In the light of the contentions advanced by the learned counsel for the petitioners as well as the 1st respondent, which I referred above, it can be seen that mixed questions of facts are involved and the said disputed facts can be settled only on the basis of the evidence yet to be adduced during the trial of the case. It is true that on going through Annexure G minutes, there is no reference of Annexure F minutes, but at the very same time, it can be seen that item nos.7 and 31 in Annexure F and item nos.50 and 73 in Annexure G are more or less the same. The learned counsel for the petitioners does not fully agree with the submission of the learned counsel for the 1st respondent Crl.M.C.No.722 of 2013 7 that, in order to formulate a proposal to be submitted before the higher authorities, for taking a decision, such proposal has to be originated from the Karmasamithi. So, the question as to how the Panchayat committee has to take decision and formulate a proposal to be submitted before the higher authorities, has to be enquired into on the basis of the evidence yet to be adduced. At this juncture, it is relevant to note that as pointed out by the learned counsel for the 1st respondent, item nos.7 and 31 in Annexure F and item nos.50 and 73 in Annexure G minutes are similarly worded, which shows that the decision of the Panchayat committee as per Annexure G minutes, has some connection with Annexure F minutes of the Karmasamithi committee held on 15.7.2008, which is not a properly constituted one, since as per the version of the 1st respondent, the presence of Sri.Joseph Paraveli, alone can be treated as official, since he was the Chairman of the said Karmasamithi, but the other members are not properly elected or constituted. Crl.M.C.No.722 of 2013 8 Thus, according to me, if Annexure F was presented as genuine, Section 471 of IPC would be attracted, provided, there are sufficient evidence to prove that the decisions in Annexure G were taken on the basis of Annexure F. So, the question whether section 463 or section 471 of IPC is attracted, is a matter to be decided on the basis of the evidence yet to be adduced. At this juncture it is also relevant to note that, in Annexure C report, it is specifically alleged that towards the formation of the 2nd stage of the programme/plan for the year 2008-09, the petitioners had created fake records of convening of Karmasamithi meeting on 15.7.2008, and misinterpreted that fake records to be an original one in the minutes of the Panchayat meeting that was held on 22.7.2008 and thereby, by way of cheating, the accused obtained an approval from the higher authorities and thereby committed the offences charged against them. So, according to me, it cannot be said that section 471 of IPC is not attracted as per Annexure C report and whether Crl.M.C.No.722 of 2013 9 the same can be substantiated or not, has to be decided on the basis of the evidence yet to be adduced during the trial of the case. Therefore, at this stage, it is premature for this Court to say that sections 167, 465, 468, 471 r/w 34 of IPC are not attracted in this case.
8. Another contention raised by the learned counsel for the petitioners is about the jurisdiction of the court below to proceed with the trial of the case in the absence of proper sanction from competent authority, in view of sections 248 and 249 and 250 of Kerala Panchayat Raj Act 1994. As per Annexure E order, the learned Magistrate has held that whether the act committed by the petitioners/accused are in good faith or not, can be considered only after considering the evidence in this case and only at that stage, the sanction under section 450 of Cr.P.C. (purportedly under section 250 of Kerala Panchayat Raj Act) is necessary or not, can be determined and also found that there is no material to consider the charge Crl.M.C.No.722 of 2013 10 levelled against the petitioners are groundless. In the present case, the offences alleged against the petitioners are punishable under sections 167, 465, 468, 471 r/w 34 of IPC and that is on the basis of Annexure F document, which I have already referred above. As rightly pointed out by the learned counsel for the 1st respondent, on the strength of the decision in OM KR. Dhankar v. State of Haryana [2012 (2) KLT 106(SC)], the offences referred under sections 467, 468, 471, cannot be regarded as having been committed by the petitioners at the time of acting or purporting to act in discharge of any official duty. The decisions relied on by the learned counsel for the petitioners reported in Parminder Kaur Vs. State of Uttar Pradesh and another [(2010) 1 Supreme Court Cases 322] paragraph 29 and in Hydru Haji Vs. State of Kerala (2011(1) KLT 63) paragraphs 10, 14 to 18, according to me, are not applicable and relevant in view of the facts of this case and particularly, the facts and circumstances involved in those cases are not identical to Crl.M.C.No.722 of 2013 11 the present one. So, according to me, this Court will not be justified in interfering with the proceedings pending against the petitioners at this stage, particularly in view of the mixed questions of facts involved in the case. Therefore, I find no merit in this petition and accordingly the same is liable to be dismissed.
9. The learned counsel for the petitioners submitted that the petitioners 1 to 3 are now working in different offices/stations on their various capacities and therefore the court below may be directed to exempt them from their personal appearance during the trial of the case. The above submission, according to me, deserves positive consideration. It is for the petitioners 1 to 3 to seek exemption by filing proper petitions before the court below at appropriate stage and it is for that court to consider the same on merit. I am sure that in case such petitions are filed, the court will consider the same on merit and the court will not insist for the physical presence of the Crl.M.C.No.722 of 2013 12 petitioners 1 to 3, unless their presence are indispensable during the time of trial of the case.
10. It is made clear that the datas and materials referred above are only for the purpose of disposing this petition and the learned Magistrate of the court below is directed to dispose of C.C.No.93/10 pending in that court, untrammelled by any of the discussions and observations and also the findings contained herein before. The petitioners are permitted to raise all the contentions raised in this Crl.M.C., before the court below also.
Subject to the above observations and directions, the above Crl.M.C. is dismissed.
Sd/-
V.K.MOHANAN, Judge.
ami/ //True copy// P.A. to Judge