Kerala High Court
Jomon Puthenpurackal vs State Of Kerala on 11 April, 2025
Author: K.Babu
Bench: K. Babu
Crl M.C. No.8044 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
CRL.MC NO. 8044 OF 2018
AGAINST THE ORDER DATED 28.11.2017 IN CRMP NO.298 OF
2016 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
PETITIONER/S:
JOMON PUTHENPURACKAL
AGED 47 YEARS
PUTHENPURAKKAL HOUSE, NEENDOOR P.O, KOTTAYAM, PIN -
686601
BY ADV JOMON PUTHENPURACKAL(Party-In-Person)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, 682031
2 SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTICORRUPTION BUREAU, SPECIAL CELL,
THIRUVANANTHAPURAM.
3 K.M.ABRAHAM IAS
ADDITIONAL CHIEF SECRETARY (FINANCE) (FORMER)
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
4 CENTRAL BUREAU OF INVESTIGATION
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REPRESENTED BY ITS DIRECTOR, PLOT NO.5-B, 6TH FLOOR,
CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003.
BY ADVS.
R1 BY SMT S REKHA SR. PUBLIC PROSECUTOR
R2 BY SRI A RAJESH, SPECIAL G.P.(VIGILANCE)
R3 BY CHANDRASEKHARAN NAIR S
S.JAYANT(K/731/2015)
JEREES J.(K/002202/2019)
PRASANTH N.L.(K/2063/2021)
R4 BY SREELAL N WARRIER (SPL. P.P., CBI)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
11.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl M.C. No.8044 of 2018
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"C.R."
K.BABU, J
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Crl M.C. No.8044 of 2018
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Dated this the 11th day of April, 2025
ORDER
The petitioner, who claims to be a person fighting against corruption in society, seeks investigation by the CBI into the allegations of amassment of wealth disproportionate to his known sources of income by respondent No.3, a former IAS Officer presently employed as the Chief Principal Secretary to the Chief Minister of Kerala in the cabinet rank. The petitioner also seeks to set aside the order dated 28.11.2017 rejecting CMP No.298/2016, a complaint filed under Section 190 Cr.P.C. before the Enquiry Commissioner and Special Judge, Thiruvananthapuram ('the Special Court' for short).
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2. The petitioner filed the above-referred complaint before the Special Court alleging the following:-
2.1 On 13.04.2015, the petitioner filed an application to the Chief Secretary, as per the provisions of the Right to Information Act, 2005, seeking information regarding the statements filed by respondent No.3 as per Rule 16(1)(a) of the All India Services (Conduct) Rules, 1968, pertaining to the assets of himself and his dependents. The petitioner was served with a reply stating that respondent No.3 did not submit property statements for six years. On further verification, the petitioner realized that respondent No.3 never disclosed the assets of his dependent wife, Smt.Shirley Abraham and his daughter Ann Abraham. The petitioner addressed this dereliction of duty to the Chief Minister and the Chief Secretary of the State. On 29.06.2015, the Chief Crl M.C. No.8044 of 2018 ..5..
2025:KER:31057 Secretary sought the remarks of respondent No.3, to which he submitted that his dependent wife and daughter had not acquired any movable or immovable property during his service period. In view of the remarks submitted by respondent No.3, further action in the matter was dropped.
2.2. Thereafter, the petitioner obtained relevant documents regarding the assets of respondent No.3. Respondent No.3 acquired an apartment worth Rupees Three Crores in Mumbai city and an apartment worth Rupees One Crore at Thycaud, Thiruvananthapuram District. He also constructed a three-storey shopping complex at Kadappakkada, Kollam District, the value of which would come to Rupees Eight Crores.
2.3. In some of the property statements, respondent No.3 had shown the repayment of loan with regard to the apartment in Mumbai @ Rs.84,000/- per month, whereas Crl M.C. No.8044 of 2018 ..6..
2025:KER:31057 his monthly income was Rs.80,000/-, which would reveal that he could not make repayment from his known sources of income. He also did not disclose the source of income utilized for the repayment of loan pertaining to the apartment at Thycaud. Respondent No.3 did not disclose the source of income for constructing the multi- storey shopping complex at Kadappakkada.
3. In the complaint containing the above allegations, the learned Special Judge ordered a preliminary enquiry (Quick Verification) by the Vigilance and Anti-Corruption Bureau ('the VACB' for short). The Director, VACB authorised the Superintendent of Police, VACB, Thiruvananthapuram, to conduct the preliminary enquiry. The VACB submitted a report stating that there was no substantial evidence to prove the allegations and, hence, there is no scope for any further action. Crl M.C. No.8044 of 2018
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4. The petitioner filed objections to the conclusions in the preliminary enquiry report.
5. The learned Special Judge, on evaluation of the materials placed before the Court, came to the conclusion that the complainant brought no acceptable evidence to substantiate his allegations. Consequently, the Special Court rejected the complaint.
6. The petitioner challenges the order rejecting the complaint and seeks an investigation by the Central Bureau of Investigation (CBI).
7. The petitioner appeared in person. I have heard the petitioner, the learned Special Government Pleader (Vigilance), the learned Counsel appearing for respondent No.3 and the learned Special Public Prosecutor, CBI.
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8. I have also gone through the file relating to the preliminary enquiry conducted by the VACB. (Q.V.25/2016/SCT)
9. The petitioner made the following submissions:-
(i)The reasons given by the Special Court to reject the complaint are not sustainable in law.
(ii)The petitioner could produce materials disclosing offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1998 ('the PC Act' for short) against respondent No.3.
(iii) The materials placed before the Court establish the acquisition of enormous wealth through illegal means.
(iv)There are materials to show that the wife of respondent No.3 purchased valuable movables, including diamonds. The statements regarding the accounts maintained by his wife in various banks reveal heavy transactions on multiple dates.Crl M.C. No.8044 of 2018
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(v)The VACB fixed the check period from 01.01.2000 to 31.12.2009 with a deliberate intention to avoid any enquiry or investigation of the investments running into Crores of rupees made by respondent No.3 for the construction of his shopping complex at Kadappakkada in Kollam District.
(vi)The VACB should have chosen the check period from 01.01.2003 to 31.12.2015. On a perusal of the quick verification report (QV report), any prudent man will be convinced that the enquiry carried out by the VACB was a farce.
(vii) The title deed regarding the apartment in Mumbai does not reflect the actual consideration passed between the builder and respondent No.3.
(viii) The conclusion of the VACB that respondent No.3 did not contribute any funds for the construction of the shopping complex at Kadappakkada is against what is Crl M.C. No.8044 of 2018 ..10..
2025:KER:31057 revealed from the materials collected by the VACB. The Enquiry Officer ignored the recitals in the powers-of- attorney (Exts. C1 and C2 in the QV Report) that the investments in the shopping complex would be equally met by respondent No.3 and his brothers and the relevant documents issued by the local authority. He relied on a subsequent Memorandum of Understanding (Ext. C3 in the QV Report), which was brought into existence with malafide intentions.
(ix)There are enough materials on record to register FIR against respondent No.3. The VACB has taken a partisan attitude in the matter under the influence of respondent No.3.
(x) A future investigation by the VACB will not reveal the truth as its credibility is doubtful in view of the conclusions in the quick verification report. Crl M.C. No.8044 of 2018
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(xi) As the VACB comes under the Home Ministry of the State, where respondent No.3 is employed in cabinet rank, only a central agency like the CBI can unearth the truth of the allegations levelled by the petitioner.
10. The learned counsel for respondent No.3 submitted the following:-
(i) The petitioner has projected the value of the three buildings at exorbitant levels without any foundation.
(ii) Respondent No.3 has satisfactorily accounted for the assets allegedly acquired during the check period.
(iii) Respondent No.3 has made no investment in the multi-storey building constructed at Kadappakkada in Kollam District, which is evident from the Memorandum of Understanding (Ext.C3 in the QV Report).Crl M.C. No.8044 of 2018
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(iv) Respondent No.3 acquired the apartment in Mumbai, availing a home loan from a nationalized bank. The value of the apartment in Mumbai is evident from the records collected by the VACB.
(v) Though sufficient opportunity was given to the petitioner to challenge the quick verification report, he could not contradict the findings therein.
11. The learned Special Government Pleader (Vigilance) submitted the following:-
(i) The petitioner initially filed a complaint before the Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur, as CMP No.62/2006, which was returned to be filed before the Special Court, Thiruvananthapuram, Crl M.C. No.8044 of 2018 ..13..
2025:KER:31057 but he filed a new complaint incorporating fresh inputs.
(ii) The VACB has the prerogative to fix the check period.
(iii) The petitioner has placed no materials to conclude that the impugned order passed by the Special Judge is perverse, warranting interference by this Court.
(iv) The petitioner has not placed sufficient materials warranting investigation by the CBI. The Court cannot order a CBI investigation on mere asking by a party.
12. The learned Special Public Prosecutor, CBI submitted that the CBI has no objection to taking over the investigation.
13. The petitioner alleges that respondent No.3 has amassed assets during 2000-2015 disproportionate to his Crl M.C. No.8044 of 2018 ..14..
2025:KER:31057 known sources of income. He pleaded that respondent No.3, during the said period, acquired the following immovable properties:-
(1) Millennium Apartment at Thaicaud Village in Thiruvananthapuram District.
(2) Apartment in Kohinoor City, Mumbai.
(3) Shopping Complex at Kadappakada in Kollam District.
14. According to the petitioner, the approximate value of the apartment in Mumbai is Rupees Three Crores, and the apartment in Thiruvananthapuram is Rupees One Crore. The petitioner alleges that the approximate value of the shopping complex constructed in Kollam during 2014-2015 would be Rupees Eight Crores. The petitioner further alleges that respondent No.3 submitted a statement before the Chief Secretary Crl M.C. No.8044 of 2018 ..15..
2025:KER:31057 that his wife and daughter had acquired no properties during his service period.
15. The petitioner submitted that there are materials to show that the wife and daughter of respondent No.3 have made many financial transactions involving Lakhs of Rupees, the source of which respondent No.3 could not account for.
16. On the complaint filed by the petitioner, the Special Court ordered a preliminary enquiry (quick verification). The Superintendent of Police, VACB Special Cell, Thiruvananthapuram, conducted the preliminary enquiry and submitted a report before the Special Court wherein he concluded as follows:-
"The Counter petitioner has stated that his wife has received 100 Sovereigns of Gold ornaments as Gift from her parents at the time of marriage. There is no other assets found possessed by the counter petitioner at the Crl M.C. No.8044 of 2018 ..16..
2025:KER:31057 beginning of the check period. At the end of the check period, the total assets possessed by the counter petitioner is amounting to Rs.1,21,01,471/-. The total income of the Counter petitioner during the check period is Rs.1,81,41,376/- and the expenditure during the above period is Rs.22,27,648/-. Thus the likely savings is Rs.1,59,13,728/-. Against this likely savings, the assets acquired during the above period is Rs.1,21,01,471/. There is a balance amount of Rs.38,12,257/- in the likely savings. Hence the allegation that the counter petitioner amassed assets disproportionate to his known source of income has no merits."
17. The learned Special Judge accepted the report and rejected the complaint as per the order dated 28.11.2017 in CMP No.298/2016.
18. The reasoning applied by the learned Special Judge for rejecting the complaint is as follows:- Crl M.C. No.8044 of 2018
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2025:KER:31057 The fixation of the check period by the Enquiry Officer, which is ten years from 01.01.2000 to 31.12.2009, is the prerogative of the prosecution, and the complainant has no say in the choice of the check period.
The officer who conducted the preliminary enquiry examined the requisite witnesses and, verified the necessary records, and arrived at a conclusion that at the end of the check period, the total assets possessed by respondent No.3 was Rs,1,21,01,471/- and his total income was Rs.1,81,41,376/-. The expenditure during the above period was assessed to be Rs.22,27,648/-; he had a likely saving of Rs.1,59,13,728/- and the surplus amount is Rs.38,12,257/-. Based on these findings, the Special Judge found that no evidence has been made against respondent No.3, and the question of registration of crime doesn't arise.Crl M.C. No.8044 of 2018
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2025:KER:31057 The points for consideration:-
(i) Whether there are materials prima facie revealing offence under Section 13(1)(e) r/w Section 13(2) of the PC Act against respondent No.3.
(ii) Whether the petitioner established a case warranting CBI investigation.
(iii) Is a preliminary enquiry required before registration of FIR in the circumstances revealed?
Point No.1
19. The petitioner alleges that respondent No.3 acquired the following immovable properties during the period 2000-2015:
(1) Millennium Apartment at Thaicaud Village in Thiruvananthapuram District.
(2) Apartment in Kohinoor City, Mumbai.Crl M.C. No.8044 of 2018
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2025:KER:31057 (3) Shopping Complex at Kadappakada in Kollam District.
20. The VACB, in the preliminary enquiry, found that respondent No.3 has the following investments:
1.Millennium Apartment in Thiruvananthapuram -
valued at Rs.13,56,611/-.
2.Kohinoor Apartment in Mumbai - valued at Rs.99,75,000/-.
3. A Hyundai brand Car - valued atRs.7,69,860/-.
21. The VACB concluded that respondent No.3 did not spend any money to construct the shopping complex in Kollam, the cost of which was found to be Rs.2.05 Crores in the enquiry.
22. Even though I am conscious of the legal position that this Court is not expected to look into the merits of the allegations levelled against respondent No.3 at this stage, having regard to the conclusions arrived at Crl M.C. No.8044 of 2018 ..20..
2025:KER:31057 in the preliminary enquiry and findings recorded by the trial Court based on it, I deem it appropriate to consider some of the findings in the preliminary enquiry (QV Report). This is necessitated because the petitioner has built up his case on the following allegations:-
(a) The Vigilance Officer who conducted the enquiry has arbitrarily fixed a check period intending to exclude the accumulation of assets by respondent No.3 during the period from 2014-2015.
(b) The Vigilance Officer was influenced by respondent No.3, the then Additional Chief Secretary.
(c) If the Vigilance Officer had not excluded the cost of acquiring the shopping complex in Kollam, he would have concluded that there Crl M.C. No.8044 of 2018 ..21..
2025:KER:31057 are prima facie materials revealing a cognizable offence under the PC Act.
23. The conclusions of the Vigilance Officer regarding the acquisition of immovable properties by respondent No.3 are as follows:-
Millennium Apartment in Thiruvananthapuram:-
The Enquiry Officer found that respondent No.3 paid Rs.13,56,611/- to acquire this apartment at the housing complex constructed by the Officers' Housing Cooperative Society Ltd., during the period from 22.04.1996 to 04.02.2002.
Apartment in Mumbai The total sale consideration of the residential flat at Kohinoor City with a plinth area of 105.91 square meters was Rs.99,75,000/- in addition to Rs.4,81,350/- and Rs.30,000/- paid as stamp duty and registration charges, respectively. Respondent No.3 availed a housing loan for Crl M.C. No.8044 of 2018 ..22..
2025:KER:31057 Rs.89,00,000/- from the State Bank of India, Pant Nagar Branch, Mumbai.
Shopping Complex in Kollam The Vigilance assessed the cost of construction of the shopping complex by applying plinth area method at Rs.2.05 Crores. The shopping complex was constructed during 2014-15.
24. The shopping complex was constructed on a landed property inherited by respondent No.3, his brothers Sri. K.M.Thomas and Sri. K.M.Mathew. In the enquiry, the Vigilance found that a sum of Rs.24,50,000/- has been credited to the account of Smt.Shirley Abraham, wife of respondent No.3, from the NRI account maintained by Sri.K.M.Thomas, brother of respondent No.3. They also found that a sum of Rs.22,05,688/- remained in the accounts of Sri. K.M.Thomas and Smt. Annie Varghese for the period from 02.04.2010 to Crl M.C. No.8044 of 2018 ..23..
2025:KER:31057 03.12.2016 at the SBI NRI Branch, LMS Compoud. The VACB also found transfer of money to the account No.13170100045166 maintained by Smt.Shirley Abraham, wife of respondent No.3, with the Federal Bank Nanthancodu Branch for the period from 16.03.2002 to 05.11.2016 by his brothers.
25. The Vigilance, however, could not find the transfer of funds by his brothers, as stated by respondent No.3, to the account of his wife to meet the entire expenses required for the construction of the shopping complex in Kollam.
26. It is the case of the petitioner that the investment towards the cost of construction of the shopping complex was excluded from the check period as respondent No.3 failed to account for the source of income for that purpose. The learned counsel for respondent No.3 submitted that by way of a Crl M.C. No.8044 of 2018 ..24..
2025:KER:31057 Memorandum of Understanding (Ext.C3 in the QV Report), respondent No.3 and his brothers agreed that the entire cost of construction would be met by his brothers and only on payment of the amount due from him, he would acquire right over the property. The learned counsel for respondent No.3 also relied on the powers-of-attorney executed by the brothers of respondent No.3 in favour of him. Paragraph No.2 of the powers-of-attorney (Exts.C1 & C2 in the QV Report) is relevant in this regard, which reads thus:-
"....2. And whereas we the joint owners propose to demolish the existing old structures on the property and to construct a multi-storied Residential cum shopping complex with equal investment and equal right including on all common accesses and utilities proposed to be established there on."
27. The building permit dated 23.07.2014 for the construction of the shopping complex (Ext.C in the QV Crl M.C. No.8044 of 2018 ..25..
2025:KER:31057 Report; See page No.236) was issued in the name of respondent No.3 and his brothers. The Occupancy Certificate dated 01.07.2015 (Ext.C6 in the QV Report; See page No.301) would show that the owners of the building are respondent No.3 and his brothers.
28. The case of the petitioner is that MOU (Ext.C3 in the QV Report) was created as the product of an afterthought during preliminary enquiry when respondent No.3 failed to account for the source of income for investing in the construction of the shopping complex. It is pertinent to note that in the preliminary enquiry, Vigilance could not find any material supporting the defence set up by respondent No.3 that the shopping complex was constructed by utilising the funds transferred by his brothers alone.
29. The petitioner submitted that respondent No.3 being a Senior Officer of the Indian Administrative Crl M.C. No.8044 of 2018 ..26..
2025:KER:31057 Service influenced the Enquiry Officer who conducted the preliminary enquiry. The Enquiry Officer deliberately fixed the check period in such a way as to exclude the period during which the shopping complex was constructed. According to the petitioner, even on a casual assessment, the investment made by respondent No.3 for the shopping complex would come to around Rupees Sixty Eight Lakhs (1/3rd of the total cost estimated by the VACB).
30. The petitioner contends that this is enough to prima facie conclude that a cognizable offence has been revealed, but the Enquiry Officer, under the influence of respondent No.3, intentionally excluded the said period. The petitioner submits that this is a case where an FIR is to be registered under Section 13(1)(e) r/w Section 13(2) of the PC Act. He contends that since respondent No.3 is employed in the cabinet rank as the Chief Principal Crl M.C. No.8044 of 2018 ..27..
2025:KER:31057 Secretary to the Chief Minister of Kerala, who holds the Home Portfolio also, under which the Directorate of Vigilance functions, there is every chance that respondent No.3 will influence the investigation that any agency of the Kerala Police may conduct. According to the petitioner, the VACB cannot conduct a fair investigation. Therefore, he seeks registration of FIR and investigation by the CBI.
31. The learned Special Government Pleader (Vigilance) appearing for the VACB submitted that the Enquiry Officer conducted a fair enquiry and concluded that no cognizable offence was revealed. The learned Special Government Pleader also submitted that the Vigilance had no malafides in the fixation of the check period.
32. The petitioner's case is that in the preliminary enquiry, to protect respondent No.3, the Enquiry Officer Crl M.C. No.8044 of 2018 ..28..
2025:KER:31057 intentionally excluded the period in which respondent No.3 and his two siblings constructed the shopping complex at Kadappakkada in Kollam. The construction was commenced and completed during the period from 23.7.2014 to 1.7.2015. The learned counsel for respondent No.3 and the learned Special Government Pleader (Vigilance) submitted that it is the prerogative of the enquiry officer/prosecution to select the check period.
33. There is no general rule or criterion, valid for all cases, regarding the choice of the period for which accounts are taken. It shall be determined based on the allegations. A period must be taken so as to obtain a true and comprehensive picture of the known sources of income, pecuniary resources, and property in possession of the public servant, which is alleged to be disproportionate. The period selected has a direct bearing on the acquisitive activities of the public servant Crl M.C. No.8044 of 2018 ..29..
2025:KER:31057 in amassing wealth. The prosecution cannot exclude the period during which the public servant allegedly acquired a substantial asset. Such a situation would amount to ignoring or avoiding a true picture of the property in possession of the public servant.
34. In State of Maharashtra v. Pollonji Darabshaw Daruwalla [AIR 1988 SC 88 = 1987 KHC 771], the Supreme Court considered this aspect and observed thus:-
"15. .......... In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 5(1)(e) of the 'Act'.
16. The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the facts and circumstances of a case, a ten year period Crl M.C. No.8044 of 2018 ..30..
2025:KER:31057 cannot be said to be incapable of yielding such a true and comprehensive picture. The assets spilling over from the anterior period, if their existence is probabilised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion. .........
17.........It is for the prosecution to choose what, according to it, is the period which having regard to the acquisitive activities of the public servant in amassing wealth, characterise and isolate that period for special scrutiny."
35. In Shibu.K.S. v. State of Kerala and Another [2021 KHC OnLine 5078] this Court observed thus:-
"30. No doubt, it is the prerogative of the prosecution to select the check period. But, such discretion cannot be exercised arbitrarily. It is not imperative that the period of reckoning should be spread out for the entire stretch of the anterior service of the public servant. But, the check period selected by the prosecution should be capable of giving a true and comprehensive picture of the known sources of income and the pecuniary resources and property in the possession of the public servant. The check period selected by the prosecution shall cover a reasonable period of time. The period shall not be very small and arbitrarily chosen by the investigating officer to project acquisition of wealth by a public servant."
36. In Ashok Kumar Kapoor v. Central Bureau of Investigation [2019 SCC OnLine Del 7182], Delhi High Court, while dealing with a case where the prosecution arbitrarily curtailed the check period, Crl M.C. No.8044 of 2018 ..31..
2025:KER:31057 observed that the check period must be fixed in such a way as to reveal the true and comprehensive picture in disproportionate asset cases.
37. In the present case, the petitioner specifically alleged that respondent No.3 constructed a shopping complex at Kadappakkada, the value of which would come to Rs.8 Crores. In the preliminary enquiry, the VACB found that the cost of construction, applying the plinth area method, would come to Rs.2.05 Crores. Admittedly, the multi-storey building has an area of 9883.961 sq.ft. (918.25 m2). The building is in the joint names of respondent No.3 and his brothers, as revealed from the building permit and the Occupancy Certificate (Exts.C & C6 in QV Report). The powers-of-attorney executed by the brothers of respondent No.3 would show that they jointly invested.
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38. In the preliminary enquiry, the reasoning applied for fixing the check period as 01.01.2000 to 31.12.2009 is the following:-
"......Here in this case the petition of the Crl. MP alleges that the counter petitioner acquired disproportionate assets such as a residential flat in Mumbai City amounting in Rs. 3 Crores, another residential flat in Thiruvananthapuram amounting to Rs. 1 Crore and a shopping Complex in Kollam District amount to Rs. 8 Crores. Out of these three assets the First Asset acquired was the Millennium Apartment in Jagathy in 2001 and the flat at Kohinoor city in Mumbai in 2009. Hence, a period of 10 years ie, the period between 01-01-2000 to 31-12-2009 is selected as the check period for this enquiry....."
39. The defence set up by respondent No.3 in the preliminary enquiry was that he had not spent any money on the construction of the shopping complex at Kadappakkada and that the entire money was spent by his brothers, who forwarded the funds through the Crl M.C. No.8044 of 2018 ..33..
2025:KER:31057 account of his wife. The powers-of-attorney referred to above and the documents issued by the local authority would reveal that the building is in the joint names of respondent No.3 and his brothers and they jointly invested in the construction of the building.
40. After collecting the source of income for the construction of the building based on the statement given by respondent No.3 and also relying on the Memorandum of Understating (Ext.C3 in the QV Report) stated to have been executed among respondent No.3 and his siblings, wherein it was recited that his brothers agreed to make the entire investment, the Enquiry Officer concluded that respondent No.3 did not spend any funds for the construction. The specific case of the petitioner is that the MOU stated to have been executed on 25.2.2012, which would go against the recitals in the powers-of- attorney executed by the brothers of respondent No.3 and Crl M.C. No.8044 of 2018 ..34..
2025:KER:31057 the documents issued by the local authority regarding the ownership of the building, is the product of an afterthought.
41. The Enquiry Officer collected the details regarding the transfer of funds by the brothers of respondent No.3 to the account of his wife. The funds stated to have been transferred by his brothers would not account for the entire expenditure of Rs.2.05 Crores. Therefore, the Enquiry Officer excluded the period during which the construction was done from the check period. The intention of the enquiry officer is very evident. Prima facie, it is established that respondent No.3 spent one- third (1/3rd) of the investment required to construct the shopping complex. The exclusion of the period during which the shopping complex was constructed relying on the recitals in the MOU, which go against the powers-of- attorney executed by the brothers of respondent No.3, Crl M.C. No.8044 of 2018 ..35..
2025:KER:31057 and the documents issued by the local authority persuade this Court to infer that the conclusion of the Enquiry Officer is doubtful. This does not instil confidence to conclude that the Enquiry Officer made an independent and impartial enquiry.
42. The petitioner submitted that the VACB ought to have come to a prima facie conclusion that respondent No.3 invested at least Rs.68.34 Lakhs, one-third (1/3rd) of the investment assessed in the preliminary enquiry.
43. The materials collected by the enquiry officer would prima facie elicit that respondent No.3 made an investment in the shopping complex at Kadappakada, to a minimum extent of one-third (1/3rd) of the total cost assessed as Rs. 2.05 Crores. If the investment in the shopping complex had also been taken into account, by including it in the check period, the conclusion in the preliminary enquiry would have been different. Crl M.C. No.8044 of 2018
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44. The consistent stand of respondent No.3 is that he spent no money for the construction of the shopping complex in Kollam. This is prima facie not believable for the following reasons:-
(a) The powers-of-attorney he relies on reflect that he and his brothers agreed to invest equally in the construction.
(b) The building permit and the Occupancy Certificate issued by the local authority indicate that he has rights in the building.
(c) The contention of the petitioner that the MOU relied on by respondent No.3 is the product of an afterthought has force, though this is a matter to be investigated.
(d) Respondent No.3 could not produce materials to the satisfaction of the enquiry officer that his brothers spent the entire money to construct the shopping complex.
45. It is also pertinent to note that respondent No.3 reported to the Chief Secretary that his wife had not Crl M.C. No.8044 of 2018 ..37..
2025:KER:31057 acquired any immovable property during his service period. In the letter dated 10.06.2015 addressed to the Chief Secretary, respondent No.3 submitted as follows:-
"With reference to the above, this is to inform that my wife Smt. Shirley Abraham and my dependents have never owned any immovable property. They have also not acquired any movable item other than clothes and items needed for routine daily use during my period of service in the IAS." (See Page No.110 of paper book)
46. The petitioner has brought to my notice a series of transactions made by his wife through the Federal Bank Ltd., Nandancodu branch. This gives rise to a prima facie, conclusion that respondent No.3 acquired assets disproportionate to his known sources of income.
47. On a careful analysis of the preliminary enquiry report, the other materials placed before the Court and the defence set up by respondent No.3 during enquiry, prima facie, it is established that respondent No.3 had Crl M.C. No.8044 of 2018 ..38..
2025:KER:31057 movable and immovable properties disproportionate to his known sources of income.
48. This discussion takes me to the prima facie conclusion that there are sufficient facts constituting the offence under Section 13(1)(e) read with Section 13(2) of the PC Act. The materials prima facie reveal a cognizable offence warranting registration of a crime and investigation. Point No.1 is answered accordingly. The observations made by this Court while answering this point are limited to the question whether the material made available ex facie discloses a cognizable offence. Point No.2
49. Having concluded that the materials prima facie disclose the commission of a cognizable offence, as held in Lalita Kumari v. Govt. of U.P. [AIR 2014 SC 187], registration of the FIR is mandatory. The VACB is the Investigating agency empowered to register FIR Crl M.C. No.8044 of 2018 ..39..
2025:KER:31057 under the PC Act. I have already held that in the preliminary enquiry, the report of which was verified by the Legal Officer/Public Prosecutor and the Director of Vigilance, the enquiry officer deliberately excluded the acquisition of an immovable property having substantial value by respondent No.3 from consideration by way of curtailing the check period. At the time of the preliminary enquiry, respondent No.3 was the Additional Chief Secretary to the Government of Kerala. Presently, he is the Principal Secretary to the Chief Minister of Kerala in the cabinet rank. The investigation by the VACB will not instil confidence in the public. At the cost of repetition, I must say that the credibility of the enquiry done by State Vigilance is doubtful.
50. The petitioner has prayed for directing the CBI to register an FIR and conduct investigation. The learned counsel for respondent No.3 and the learned Special Crl M.C. No.8044 of 2018 ..40..
2025:KER:31057 Government Pleader (Vigilance) submitted that merely because a party made allegations against a person, the High Court cannot direct CBI to investigate whether that person committed an offence as alleged or not.
51. The learned counsel for respondent No.3, relying on Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya [2002 (5) SCC 521], submitted that the power to order investigation by the CBI is to be exercised only in exceptional circumstances. The learned Special Government Pleader (Vigilance) relied on Himanshu Kumar v. State of Chhattisgarh [(2023) 12 SCC 592] and submitted that an order directing the CBI to conduct investigation cannot be passed as a matter of routine or merely because a party has levelled some allegations against the local Police. It is submitted that this power is to be exercised sparingly, cautiously and in exceptional situations. Crl M.C. No.8044 of 2018
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52. It is trite that if a citizen who is a complainant in a criminal case alleging the commission of cognizable offence against Government officials or influential persons prays before a court for a direction of investigation of the alleged offence by CBI, such prayer should not be granted on mere asking. In State of W.B v. Committee for Protection of Democratic Rights [2010 (3) SCC 571], while considering the prayer for investigation by the CBI, a Constitution Bench of the Supreme Court held that Constitutional Courts are fully empowered to direct for CBI investigation and restrictions under the Delhi Special Police Establishment Act, 1946 do not apply to Constitutional Courts. The Supreme Court further observed that although no inflexible guidelines can be laid down to decide whether or not such powers should be exercised, such an order is not to be passed as a matter of routine or merely because Crl M.C. No.8044 of 2018 ..42..
2025:KER:31057 a party has levelled some allegations against the State Police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations, or where the incident may have national and international ramifications, or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.
53. In Minor Irrigation & Rural Engg. Services, U.P., the Supreme Court held that an order directing an investigation by the CBI should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other agency.
54. In Himanshu Kumar, the Supreme Court held that in an appropriate case when the Court feels that the Crl M.C. No.8044 of 2018 ..43..
2025:KER:31057 investigation by the State Police authorities is not in a proper direction, and to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like CBI. By now, it is well - settled that even after the filing of the charge sheet, the court is empowered, in an appropriate case, to hand over the investigation to an independent agency like the CBI. The Supreme Court further held that the prime concern and the endeavour of the court of law should be to secure justice on the basis of true facts, which ought to be unearthed through a committed, resolved and competent investigating agency.
55. In K. V. Rajendran v. CBCID [2013 (12) SCC 480], the Apex Court held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice Crl M.C. No.8044 of 2018 ..44..
2025:KER:31057 between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly when it is imperative to retain public confidence in the impartial working of the State agencies.
56. In K. V. Rajendran, in paragraph 17 of judgment, the Apex Court observed thus:
"17. ... the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted / biased."
57. In Himanshu Kumar, the Supreme Court further observed that one factor that Courts may consider is that such transfer of investigation to the CBI is Crl M.C. No.8044 of 2018 ..45..
2025:KER:31057 "imperative" to retain "public confidence in the impartial working of the State agencies."
58. In Amar Nath Chaubey v. Union of India, [(2021) 11 SCC 804], in paragraph 11 of the judgment the Supreme Court, observed thus:
"11. The police has a statutory duty to investigate into any crime in accordance with law as provided in the Code of Criminal Procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police."
59. Bearing in mind the position of law discussed above, from the materials on record, I now proceed to consider whether it has been prima facie established that Crl M.C. No.8044 of 2018 ..46..
2025:KER:31057 this is a fit case for allowing the prayer of the petitioner for investigation by the CBI. In the afore-said discussions, I have concluded that the Vigilance, while conducting preliminary enquiry, deliberately excluded the acquisition of property having substantial value by respondent No.3 with the intent to protect him.
60. Strangely enough, the enquiry report was scrutinized and verified by the Director of the VACB. There was a deliberate attempt to save respondent No.3 on the part of the State Vigilance. Respondent No.3 retired from the Indian Administrative Service as Chief Secretary, Government of Kerala and is now employed in the cabinet rank as the Chief Principal Secretary to the Chief Minister of Kerala, who holds the Home Portfolio under which the Directorate of Vigilance functions.
61. This Court has a duty to retain public confidence in the investigation. Justice should not only be Crl M.C. No.8044 of 2018 ..47..
2025:KER:31057 done, but it must appear to have been conducted in a fair manner. For a fair, honest and complete investigation to retain public confidence in the impartial working of the State agencies, the investigation in the present case is to be done by the CBI. The learned Public Prosecutor, CBI submitted that the CBI has no objection in conducting investigation. Therefore, this Court comes to the conclusion that the CBI is to be directed to register an FIR and conduct investigation.
Point No.3
62. A question may arise as to whether a preliminary enquiry is mandatory before registering the FIR. In P. Sirajuddin v. State of Madras [AIR 1971 SC 520], the Supreme Court observed that before a public servant is charged with acts of dishonesty amounting to a serious misdemeanour, some suitable preliminary enquiry must be conducted in order to obviate incalculable harm Crl M.C. No.8044 of 2018 ..48..
2025:KER:31057 to the reputation of that person. This decision was followed by another Two Judge Bench of the Supreme Court in Nirmal Singh Kahlon v. State of Punjab, [(2009) 1 SCC 441], where it was observed that in accordance with the CBI Manual, CBI may only be held to have established a prima facie case upon the completion of a preliminary enquiry.
63. Later, in Lalita Kumari, a Constitution Bench of the Supreme Court observed that preliminary enquiry may be made before registration of the FIR in some categories of cases, including corruption cases. In Lalita Kumari, in paragraph 119 of the judgment, the Supreme Court observed thus:
"119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can Crl M.C. No.8044 of 2018 ..49..
2025:KER:31057 conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR. "
64. It was concluded in Lalita Kumari that registration of the FIR is mandatory under Section 154 of the Code of Criminal Procedure if the information discloses the commission of a cognizable offence and no preliminary inquiry is permissible in such a situation and if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not . The Crl M.C. No.8044 of 2018 ..50..
2025:KER:31057 Court further held that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
65. The principle declared in Lalita Kumari was considered by a Three Judge Bench of the Supreme Court in Yashwant Sinha v. CBI [(2020) 2 SCC 338], wherein it was observed that a preliminary enquiry may be desirable in corruption cases. In State of Telangana v. Managipet, [(2019) 19 SCC 87], a Two Judge Bench of the Supreme Court, after analysing Lalita Kumari, noted that whether a preliminary enquiry is required or not will depend on the facts and circumstances of each case, and it cannot be said to be a mandatory requirement without which a case cannot be registered against the accused in corruption cases. The Supreme Court observed that the objective of preliminary enquiry is only to ensure that a Crl M.C. No.8044 of 2018 ..51..
2025:KER:31057 criminal investigation process is not initiated on a frivolous and untenable complaint.
66. In CBI v. Thommandru Hannah Vijayalakshmi [(2021) 18 SCC 135], a Three Judge Bench of the Supreme Court held that a preliminary enquiry is not mandatory in all cases which involve allegations of corruption. In paragraphs 39 and 43 of the judgment, the Apex Court observed thus:
"39...
The precedents of this Court and the provisions of the CBI Manual make it abundantly clear that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption. The decision of the Constitution Bench in Lalita Kumari (supra) holds that if the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. It also clarified that the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence. Similarly, para 9.1 of the CBI Manual notes that a Preliminary Enquiry is required only if the information (whether verified or unverified) does not disclose the commission of a cognizable offence. Even when a Preliminary Enquiry is Crl M.C. No.8044 of 2018 ..52..
2025:KER:31057 initiated, it has to stop as soon as the officer ascertains that enough material has been collected which discloses the commission of a cognizable offence. A similar conclusion has been reached by a two Judge Bench in Managipet (supra) as well. Hence, the proposition that a Preliminary Enquiry is mandatory is plainly contrary to law, for it is not only contrary to the decision of the Constitution Bench in Lalita Kumari (supra) but would also tear apart the framework created by the CBI Manual.
xxx xxx xxx
43. The above formulation does not take away from the value of conducting a Preliminary Enquiry in an appropriate case. This has been acknowledged by the decisions of this Court in P. Sirajuddin (supra), Lalita Kumari (supra) and Charansingh (supra). Even in Vinod Dua (supra), this Court noted that "[a]s a matter of fact, the accepted norm - be it in the form of CBI Manual or like instruments is to insist on a preliminary inquiry". The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right. As clarified by this Court in Crl M.C. No.8044 of 2018 ..53..
2025:KER:31057 Managipet (supra), the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants."
67. In Thommandru Hannah Vijayalakshmi, the Supreme Court held that an accused public servant does not have any right to explain the alleged disproportionate assets before filing an FIR. In State of Karnataka v. Channakeshava [2025 KHC Online 6326], the Supreme Court reiterated that a public servant has no inherent right to be heard at the stage of registration of FIR. The Supreme Court further held that preliminary enquiry is not mandated in a case where detailed information in the form of source report is available.
68. In the present case, the VACB already conducted a preliminary enquiry and collected relevant materials. Those materials revealed the commission of a cognizable offence, which they failed to note or Crl M.C. No.8044 of 2018 ..54..
2025:KER:31057 deliberately omitted to note, and this Court has examined and satisfied itself that a cognizable offence has been revealed.
69. Therefore, no preliminary enquiry is required before registration of the FIR.
70. Yet another question that arises for consideration is whether the prior approval under Section 17A of the PC Act is required.
71. I have no doubt that this is not a case where prior approval under Section 17A of the PC Act is required. The bar under Section 17A operates where the alleged offence is relatable to any recommendation made or decision taken by such public servant concerned in the discharge of his official functions or duties. This bar does not apply to investigation or enquiry conducted into all or every offence under the PC Act allegedly committed by a public servant. The purpose of Section 17A is to protect Crl M.C. No.8044 of 2018 ..55..
2025:KER:31057 an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. When it is alleged that a public servant committed the offence of criminal misconduct by fraudulently misappropriating public money, it cannot be held that it relates to any decision taken or recommendation made by him in the discharge of his official functions or duties. This view is reinforced by the decision of this Court in Jayaprakash v. State of Kerala [2022 (1) KHC 206]. Therefore, I am of the view that the bar under Section 17A of the PC Act does not apply to the facts in the present case. Moreover, this Court is of the view that there is a necessity for investigation into the offence alleged. In Venugopal V. State of Kerala [2021 KHC 565] this Court held that once a Constitutional Court examines and satisfies itself about the necessity or desirability of an enquiry or Crl M.C. No.8044 of 2018 ..56..
2025:KER:31057 investigation into an offence under the PC Act, the requirement of previous approval by the competent authority is substituted by a more judicious determination.
The impugned order of rejection of the complaint
72. The petitioner raised the following objections to the preliminary enquiry report (QV Report):-
(a) The enquiry officer has arbitrarily fixed the check period from 1.1.2008 to 31.12.2009.
(b) Possession of 100 sovereigns of gold ornaments by the wife of respondent No.3 was not reflected in the property statement submitted to the Chief Secretary.
(c) Respondent No.3 had been paying Rs.1,00,000/- per month towards repayment of the loan availed by him for the purchase of the apartment in Mumbai, whereas his monthly salary at the relevant period was less than Rs.1,00,000/-.Crl M.C. No.8044 of 2018
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(d) The income tax returns submitted by respondent No.3 were not collected and verified.
(e) The MOU referred to by the enquiry officer is a sham document.
(f) As per the registered powers-of attorney executed by the brothers of respondent No.3 he had to bear one-third (1/3rd ) of the cost for the construction of the shopping complex.
73. The learned Special Judge concluded that the officer who conducted the preliminary enquiry had examined the relevant witnesses and, verified the documents, and arrived at a conclusion that there was no amassment of wealth disproportionate to his known sources of income. The learned Special Judge did not consider the specific objections raised by the petitioner regarding the exclusion of the period during which the shopping complex was constructed from consideration. Crl M.C. No.8044 of 2018
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74. The legal advisor of the VACB, submitted a statement in tune with the conclusions arrived at by the enquiry officer. It appears that he had verified the quick verification report. The specific objections raised by the petitioner were before the legal advisor. The legal advisor submitted that the enquiry officer conducted the enquiry systematically and concluded that respondent No.3 has not amassed any wealth disproportionate to his known sources of income during the check period. He also submitted that respondent No.3 did not spend any money for the construction of the shopping complex at Kollam. The Legal Advisor/Public Prosecutor has been appointed not to blindly support what the Police or Vigilance submits before the Court. The statutory responsibility of a Legal Advisor is to uphold the law. He is independent of the Executive. He is not subject to the orders of the higher officials of the Executive. He is not Crl M.C. No.8044 of 2018 ..59..
2025:KER:31057 the servant of anyone. His statutory responsibility is to bring the truth before the Court. There is a public element attached to the office of the Legal Advisor. In the present case, I must say that the legal advisor has miserably failed in his responsibility.
75. The learned Special Judge, in a casual and perfunctory manner, blindly accepted the quick verification report and came to the conclusion that no cognizable offence under the PC Act had been revealed and rejected the complaint at the threshold. The learned Special Judge accepted the submissions made by the legal advisor of the VACB in this regard. The learned Special Judge ought to have appreciated the contention of the petitioner that the acquisition of the property, having a substantial value, by respondent No.3 has been excluded from consideration by the Enquiry Officer. The approach adopted by the learned Special Judge is not acceptable. Crl M.C. No.8044 of 2018
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2025:KER:31057 The impugned order is perverse and wholly unreasonable. Non-consideration of the relevant materials and palpable misreading of records is on the face of the impugned order. The finding of the learned Special Judge is untenable in law, grossly erroneous and based on no material. Therefore, the impugned order is liable to be set aside.
The challenge to the motive of the petitioner
76. The learned counsel for respondent No.3 and the learned Special Government Pleader (Vigilance) challenged the motive of the petitioner in prosecuting the matter. The learned counsel for respondent No.3 submitted that the petitioner is acting as a tool in the hands of some highly influential persons who maintain enmity towards respondent No.3. The learned counsel submitted that the petitioner has the habit of misusing the process of law by filing public interest litigations to attract media Crl M.C. No.8044 of 2018 ..61..
2025:KER:31057 attention. It is submitted that his concern is not public interest but media attention. The learned counsel relied on Jomon Puthenpurackal v. Lok Ayukta [2006 (1) KLT 705], a judgment delivered by a Division Bench of this Court holding that the petitioner had an improper motive in the prosecution of a matter before the Lok Ayakta. The facts considered in Jomon Puthenpurackal v. Lok Ayukta cannot in any way be related to the initiative of the petitioner in filing a petition against respondent No.3 before the Special Court and this Court.
77. Any member of a society has the locus standi to initiate a criminal proceeding in the interest of the society. One of the essential facets of justice administration is the initiation of criminal proceedings by the citizen to punish an offender in the interest of the society. Every citizen has to be a partner in this mission if he sincerely aspires for a stable, just and ideal social Crl M.C. No.8044 of 2018 ..62..
2025:KER:31057 order as envisioned by our forefathers. The petitioner has approached this Court with credible materials alleging corruption against respondent No.3.
78. Should the Judiciary not entertain such initiatives and protect whistle-blowers like the petitioner?
79. India has been a signatory to the UN Convention Against Corruption since 2005, which provides adequate safeguards and protection to persons making complaints and faciliates reporting against corrupt public officials. In 2011, our Parliament passed the Whistle-blowers Protection Act, 2011 ('WBPA' for short) to protect whistle-blowers from victimisation. The Act was initiated after the brutal murder of Satyendra Dubey, an NHAI Engineer who exposed the corruption in the Golden Quadrilateral Highway Construction Project in Jharkhand. It is submitted at the Bar that the WBPA has not been so far enforced.
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80. The act of whistle-blowing requires a lot of courage. The Courts in India have always shown a progressive approach for the protection of whistle- blowers. [See:-Manjeet Singh Khera v. State of Maharashtra [2013 (9) SCC 276] & Common Course v. Union of India [2015 (6) SCC 332].
81. I am of the opinion that the initiative of the petitioner is intended to be in the public interest. Therefore, the attack on the credibility of the petitioner by the counsel for respondent No.3 cannot be accepted.
In the result,
(i) The Crl.M.C. is allowed.
(ii) The order dated 28.11.2017 passed by the Enquiry Commissioner and Special Judge, Thiruvananthapuram in CMP No.298/2016 stands set aside.
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(iii) The Superintendent of Police, Central Bureau of Investigation, Kochi Unit is directed to register an FIR against respondent No.3 based on the complaint, statement of the petitioner, information made available in the preliminary enquiry report and other relevant materials.
(iv) Respondent No.4 is directed to issue orders entrusting investigation in the matter with the CBI , Kochi Unit.
(v) The Vigilance and Anti-Corruption Bureau shall hand over the entire case file in QV.25/2016/SCT to the Superintendent of Police, CBI, Kochi Unit, forthwith.
(vi) In view of the direction of this Court that an FIR is to be registered by the CBI, the proeedings in CMP No.298/2016 before the Crl M.C. No.8044 of 2018 ..65..
2025:KER:31057 Enquiry Commissioner and Special Judge, Thiruvananthapuram, stand closed.
(v) The Registry shall hand over the case file in QV.25/2016/SCT to the Special Government Pleader (Vigilance).
Before parting with this case, it is made clear that the observations made by this Court in this order are only limited to the issue of directing CBI investigation, and these observations must not affect the investigation in any way, which has to be done in a fair and just manner.
Sd/-
K.BABU, JUDGE Tks/kkj/kas Crl M.C. No.8044 of 2018 ..66..
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APPENDIX OF CRL.MC 8044/2018
PETITIONER ANNEXURES
Annexure I TRUE COPY OF THE COMPLAINT ALONG WITH
THE DOCUMENTS PRODUCED BY THE
PETITIONER BEFORE THE COURT OF THE
ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, THIRUVANANTHAPURAM.
Annexure II TRUE COPY OF THE ORDER DATED 5/2/2016
OF THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, THRISSUR IN ANNEXURE I COMPLAINT.
Annexure III TRUE COPY OF THE ORDER DATED 7/10/2016 IN CRL.M.P.NO.298/2016 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.
Annexure IV TRUE COPY OF THE REPORT FILED BY THE 2ND RESPONDENT IN CRL.M.P.NO.298/2016. Annexure V TRUE COPY OF THE ARGUMENT NOTE FILED BY THE PETITIONER BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.
Annexure VI TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE LEGAL ADVISOR.
Annexure VII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.A. Crl M.C. No.8044 of 2018 ..67..
2025:KER:31057 Annexure VIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.A1.
Annexure IX TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.A2.
Annexure X TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.B. Annexure XI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.B1.
Annexure XII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.B2.
Annexure XIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.B3.
Annexure XIV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF Crl M.C. No.8044 of 2018 ..68..
2025:KER:31057 ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C. Annexure XV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C1.
Annexure XVI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C2.
Annexure XVII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C3.
Annexure XVIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C3(1).
Annexure XIX TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C3(2).
Annexure XX TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS Crl M.C. No.8044 of 2018 ..69..
2025:KER:31057 MARKED AS EXT.C4.
Annexure XXI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C5.
Annexure XXII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C6.
Annexure XXIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C7.
Annexure XXIV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C8.
Annexure XXV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C9.
Annexure XXVI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C10.
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2025:KER:31057 Annexure XXVII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.C11.
Annexure XXVIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.D. Annexure XXIX TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E. Annexure XXX TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E1.
Annexure XXXI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E2.
Annexure XXXII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E3.
Annexure XXXIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF Crl M.C. No.8044 of 2018 ..71..
2025:KER:31057 ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E4.
Annexure XXXIV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E5.
Annexure XXXV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E6.
Annexure XXXVI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E7.
Annexure XXXVII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E8.
Annexure XXXVIII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.E9.
Annexure XXXIX TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS Crl M.C. No.8044 of 2018 ..72..
2025:KER:31057 MARKED AS EXT.E10.
Annexure XL TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.F. Annexure XLI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.G. Annexure XLII TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.G1.
Annexure XL111 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.H. Annexure XLIV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.J. Annexure XLV TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.K. Crl M.C. No.8044 of 2018 ..73..
2025:KER:31057 Annexure XLVI TRUE COPY OF THE DOCUMENT PRODUCED BY THE 2ND RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM, WHICH WAS MARKED AS EXT.L. Annexure XLVII TRUE COPY OF THE ORDER DATED 28.11.2017 IN CRL.M.P.NO.298/2016 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE.
Annexure XLVIII TRUE COPY OF THE REPRESENTATION DATED 20/1/2018 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA.
Annexure XLIX TRUE COPY OF THE LETTER NO.2178488/SPECIAL.A1/18/GAD DATED 8.2.2018 OF THE CHIEF SECRETARY OF KERALA.
Annexure-L TRUE COPY OF THE STATEMENT DATED 03.11.2016 AND 09/11/2016 GIVEN BY THE 3RD RESPONDENT TO THE INVESTIGATING OFFICER Annexure-LI TRUE COPY OF THE REVISED BUILDING PERMIT NO.PW4/BA/223/10-11 ISSUED BY THE CORPORATION OF KOLLAM TO THE 3RD RESPONDENT WITH VALIDITY PERIOD UP TO 26/02/2015 Annexure-LII TRUE COPY OF THE NOTIFICATION NO.1-
14011/18/2020-IPS.I(II) DATED
30/09/2020 OF MINISTRY OF HOME
AFFAIRS, GOVERNMENT OF INDIA
Annexure-LIII TRUE COPY OF THE APPLICATION DATED
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05.11.2016 SUBMITTED BY S. RAJENDRAN, SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL CELL, THIRUVANANTHAURAM BEFORE THE HONOURABLE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM IN CRL.M.P. NO. 298 OF 2016 Annexure-LIV TRUE COPY OF THE GOVERNMENT ORDER, G.O.(RT.) NO.1972/2021/GAD DATED 25/05/2020