Kerala High Court
Mohanlal vs A.A.Poulose
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939
WP(C).No. 35610 of 2016 (A)
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PETITIONER:
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MOHANLAL,
SON OF LATE VISWANATHAN NAIR, VISMAYAM VEEDU,
THEVARA, ERNAKULAM, NOW RESIDING AT
'SREE GANESH', RAJIV NAGAR,
ELAMKKARA PO, KOCHI
BY ADVS.SRI.M.K.DAMODARAN (SR.)
SRI.K.R.RADHAKRISHNAN NAIR
RESPONDENT(S):
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1. A.A.POULOSE,
SON OF AUGUSTINE, ANTHICAUD HOUSE,
UDYOGAMANDAL PO, ELOOR, ERNAKULAM, PIN 683501
2. STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY(HOME),
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001
3. THE DIRECTOR,
VIGILANCE AND ANTI CORRUPTION BUREAU,
THIRUVANANTHAPURAM 695001
R1 BY ADV. SRI.M.V.LALU MATHEWS
R2,R3 BY SENIOR GOVERNMENT PLEADER SRI SUMAN CHAKRAVARTHEY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 6-04-2017, THE COURT ON 15-06-2017 DELIVERED THE
FOLLOWING:
K.V.
WP(C).No. 35610 of 2016 (A)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE COMPLAINT CRL.MP. NO. 739/2016 DATED
13.06.2016 FILED BY THE 1ST RESPONDENT BEFORE THE
COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE
(VIGILANCE) MUVATTUPUZHA
EXHIBIT P2 TRUE COPY OF THE ORDER IN CRL.MP.NO. 739/2016 DATED
15.10.2016 OF THE COURT OF THE ENQUIRY COMMISSIONER &
SPECIAL JUDGE (VIGILANCE) MUVATTUPUZHA
EXHIBIT P3 TRUE COPY OF THE JUDGEMNET IN OP.CRL. NO. 1896/2013
DATED 18.06.2013 OF THIS HON'BLE COURT
EXHIBIT P4 TRUE COPY OF THE ORDER IN CRL.MC. NO. 3318/2012 DATED
29.02.2016 OF THIS HON'BLE COURT
EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER GO (RT)NO.
538/2015/F& WLD THIRUVANANTHAPURAM DATED 16.12.2015
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
SUNIL THOMAS, J.
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W.P.(C)No.35610 of 2016
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Dated this the 15th day of June, 2017
JUDGMENT
The petitioner herein is an acclaimed cine artist. On 22/7/2011, the Income Tax Department conducted a raid in the house of the petitioner herein and found four elephant tusks kept there. The matter was immediately reported to the Forest Department. It was found that the petitioner did not have the requisite licence to keep the tusks in custody. Hence, OR No.14/2012 was registered by Mekkapala Forest Station, Kodanad Forest Range.
2. In the meanwhile, Ext.P1 complaint was laid by the first respondent herein before the court of Vigilance and Special Court and Enquiry Commissioner (V & ACB), Muvattupuzha, against the petitioner herein and nine other persons, including the then Forest Minister. It was alleged that after the interception of the elephant tusks, no legal action was taken against the petitioner herein. Though, O.R.No.14/2012 was registered, the petitioner herein was not arrested. One Anil Kumar had submitted complaint to the City Police Commissioner, who forwarded it to the Assistant Commissioner for enquiry. The Assistant Commissioner had submitted a report. It is alleged that, no action was W.P.(C) No.35610/2016 2 recommended. FIR was also not registered. The petitioner herein was not arrested in spite of lapse of 50 months. The petitioner also did not declare the possession of the tusks within the time granted by the Government. Much later, the accused had filed an application dated 14/1/2016 before the Minister for Forest to exempt him from the prosecution. It was alleged that Ext.P5 Government order was issued permitting the petitioner herein to declare the articles, which were not in accordance with law. According to the complainant, the petitioner herein is stated to have purchased the tusks from three persons arrayed as respondents 8 to 10 in the complaint. The second respondent was the then Secretary to the Government, Forest Department and third and fourth respondents in the complaint were the officials under the Forest Department. The City Police Commissioner and the Assistant Commissioner were arrayed as 5th and 6th respondents. It was alleged that all of them had colluded to save the petitioner herein from criminal prosecution both for violation of the provisions of the Forest Act and the Wild Life Protection Act. It was contended that, assigning the asset of the State to an individual resulted in loss to the exchequer and consequently, amounted to a corrupt practice as provided under the provisions of Corruption Act. Hence, necessary action was sought against the respondents mentioned in the complaint.
3. The Special Judge (Vigilance), by Ext.P2 order held that W.P.(C) No.35610/2016 3 materials on record did not disclose that the respondents 2 to 6 had actively participated in granting any benefit to the petitioner herein. However, the court held that, on perusing the complaint and the documents filed, Ext.P5 order was issued at the instance of the first respondent in the complaint, who was the then minister. It was held that under section 42, wild life warden can issue certificate of ownership only if the possession was found lawful. No proper inquiry was conducted as to how respondents 7 to 9 got into possession of the elephant tusks. It was also held that, it was at the instance of the first respondent that the file was again put up for granting an order for declaration as per the advice of the first respondent. According to the court, it was necessary to ascertain whether first respondent had in fact abused his official position as Minister in giving preferential treatment to respondents 7 to 9. Hence, the Director, VACB, Thriuvananthapauram was directed to conduct quick verification of the allegations made against the first respondent and respondents 7 to 9 therein. The above order along with Ext.P1 complaint is under challenge in this writ petition.
4. Heard the learned senior counsel for the petitioner, learned counsel for the first respondent/complainant and the learned Public Prosecutor. Examined the records.
5. Essential facts are not in dispute. A perusal of Ext.P1 complaint shows that the crux of the grievance of the complainant W.P.(C) No.35610/2016 4 was that, in spite of the registration of OR, no further action was taken by the Forest Officials. Crime was also not registered by the police pursuant to the report of the Assistant Commissioner, It was alleged that crime was not taken against the petitioner under the purported influence of the petitioner herein and thereby the Government officials made monetary gain. The further allegation was that by legalising the possession of tusks, the Minister and officials gave preferential treatment to petitioner and thereby gained pecuniary benefits and state suffered financial loss.
6. Countering the above, the petitioner herein contended that, Ext.P1 complaint was set up at the instance of the persons who were inimical terms with the petitioner herein. There was absolutely no corrupt practice involved, much less any illegal act. Pursuant to the complaint given, a crime was registered before the JFCM, Perumbavoor. Two other proceedings were initiated at the instance of the persons who were in inimical terms with the petitioner herein, which has resulted in Exts.P3 and P4 orders of this court. Having failed in their attempt, they have set up the petitioner to spite the petitioner herein.
7. Ext.P5 is the Government Order issued by the Government permitting the petitioner herein to declare his articles legally. The above order was issued under Section 40(4) of the Wild Life Protection Act 1972 as GO(Rt)No.538/2015/FAWLD Thiruvananthapuram dated 16/12/2015. As far as Ext.P5 order W.P.(C) No.35610/2016 5 stands, the legality and validity of the order cannot be challenged before the Vigilance Court. It can only be challenged in a proceeding before the Constitutional Courts under Article 226 or Article 32 of the Constitution of India. The stand of the Government appears to be that the claims of the petitioner regarding the legality or otherwise of possession of the tusk was found to be acceptable by the competent authority under the Wild Life Act. As long as the Government Order legalizing the possession of the elephant tusks with the petitioner stands, no investigation or enquiry can be ordered by the Vigilance court into the justiciability of the order or the circumstances that resulted in the order issued under the authority of the Governor of the state.
8. The specific contention of the first respondent herein was that, the Minister and the Government officials flouted the laws, gave preferential treatment to the petitioner and thereby derived pecuniary advantage and resulted in consequent loss to the Exchequer. According to the court below, "the withdrawal, declaration and granting of ownership certificate was done at the instance of Minister in favour of respondents 7 to 9". Ext.P5 order itself reveals that the petitioner was advised by the Ministry of Environment and Forest to take up the matter with the State Government under Section 40 of the Wild Life Protection Act 1972. Ext.P5 shows that the Government examined the issue in detail and decided to grant permission to the petitioner to declare the W.P.(C) No.35610/2016 6 Elephant tusks with him to the Chief Wildlife Warden/Authorised Officer under section 40(4) of the Act. Hence, for the purpose of quick verification, holding that the first respondent alone is liable to be proceeded for, in the absence of prima facie material that the Minister acted independently and contrary to the stand of the Department will be prejudging the issue.
9. It appears that one Anilkumar had filed Cr.M.P.No.641/2014 before the enquiry commissioner and Special Judge, Thrissur alleging that the then Forest Minister was hand in glove with the petitioner herein to save him from the consequence of illegal possession of elephant tusk and that the minister, contrary to the duties attached to the office at the relevant time, had gone out of way to do favour to the the petitioner herein, in relation to the seizure of the contraband articles from his house. The complaint filed by Anilkumar was dismissed by the Vigilance court holding that the matter was pending before the Judicial First Class Magistrate Court. This was assailed by one Pramod in O.P. (Crl.) No.1896/2013. A Learned Single Judge of this Court by Ext.P3 judgment dismissed the complaint, inter alia, on a finding that criminal proceedings have also been initiated and the FIR has been filed before the JFCM, Perumbavoor. It was also found that the above proceedings initiated by the complainant was not one involving public interest and was a clear case of misuse of the provisions. The court dismissed the writ petition holding that W.P.(C) No.35610/2016 7 absolutely nothing was produced by the complainant to prove that there was any instance of the officials concerned acting in a manner against the law. It was held that there was nothing to show that the Minister favoured the petitioner herein. There was also nothing to show that they have acted in breach of trust reposed on them.
10. Another proceeding was initiated by one Anti Corruption & Human Rights Protection Council by filing M.P No.1259/2012 in the Judicial First Class Magistrate Court -1Perumbavoor in OR No. 14/2012 challenging the action of the Forest Officials in handing over the tusks to the petitioner herein on a premise that it was in contravention of the provisions of Sections 50 (3A) and 50 (4) of the Wild Life (Protection) Act 1972. That application was dismissed which was challenged in Crl.MC.No.3318/2012 . By Ext.P4 order, another Hon'ble Judge of this Court held that pending the proceedings, Ext.P4 order (which is Ext.P5 in the present proceedings) was issued by the Government of Kerala granting permission to the petitioner herein to declare the elephant tusks with him to the Chief Wild life Warden/Authorised officer under section 4 (4) of the Wildlife (Protection) Act 1972. Hence it was held that there was nothing to be interfered with, in view of the Government Order.
11. Evidently, the first respondent herein has approached the Special Court invoking its jurisdiction, as a matter of public W.P.(C) No.35610/2016 8 interest. On two earlier occasions, the action of the Forest Authorities was under challenge before the two separate authorities and both have held in favour of the Government, evidenced by Exts.P3 and P4. In Ext.P3, it was held that in the complaint in that case, there was absolutely nothing on record to show that the State or its officers acted in breach of the trust reposed on them contrary to the public trust doctrine. In the present complaint also the issues were once concluded by Exts.P3 and P4. However, by Ext.P4, the right to challenge with regard to the legality of possession of the articles as on the date of seizure was kept open. However, that is not challenged in the present proceedings. The Special Court, on an evaluation of the materials placed before it, had concluded that, there was no material to show that accused 2 to 6 in the complaint, who were the officers under the Government have misused the authorities. On the other and, the court arrived at a conclusion that prima facie there were materials to show that the then Minister had acted in collusion with the petitioner herein to protect him. Evidently, the Government acts through its officers and the very order by which the officers who were exempted from the scope of enquiry and harping on the minister alone itself militates against that part of the order by which enquiry was ordered against the first respondent and the petitioner herein and few other private parties.
12. It seems that the complainant did not have a case that W.P.(C) No.35610/2016 9 Ext.P4 order was the product of a corrupt practice. Absolutely no ground was made out in the complaint challenging the vice of Ext.P5 or the process of Governmental action which led to the Governmental Order. Further, Ext.P5 is not under challenge in any other proceedings. As long as Ext.P5 stand and the consequential declaration of the items, an enquiry into the subject matter of Ext.P5 can only be considered as mis conceived one. It was also held by this court in Ext.P4 that, once the declaration is made there is absolutely nothing to be interfered it again. The allegations raised by the first respondent are vague, bereft of any details,generalised and courts cannot be called upon to venture into a fishing expedition or a roving enquiry on the basis of mere suspicion entertained by a person to find out whether any corrupt practice is involved. It is also to be noted that the criminal proceedings are already pending. I feel that, in the light of the above, it is only to be held that, the process of Government action being not under challenge, on vague allegations. Ext.P2 order is not legally sustainable.
13. It was further contended by the learned senior counsel for the petitioner that the Vigilance Court, after taking cognizance of the complaint, and offence alleged in the complaint, instead of proceeding under Section 200 Cr.P.C. in Chapter XV of Cr.P.C. after examining the complainant on oath and the witnesses present, had invoked under Section 156(3) Cr.P.C.by deleting accused 2 to W.P.(C) No.35610/2016 10 4, holding that there is no sufficient materials to implicate them. It was argued by the learned senior counsel that the Vigilance Court has reverted back to Section 156 (3) of the Cr.P.C.,which was illegal. The learned senior counsel relied on the decision in Balasubramanian K.S.v Biju Kochu Paul and another 2016 (3) KLT 220), to support the contention. If I feel that the above decision applies to the facts of this case.
14. In the light of the above, it is only to be held that Ext.P2 passed by the court below is not legally sustainable. However,no observation is made regarding the pending criminal proceedings or the legality of possession by the petitioner as on the date of actual seizure. It is also made clear the vice of the Governmental action leading to Ext.P4 is also not considered in this proceeding.
In the above circumstances, Ext.P2 order is not legally sustainable and is liable to quashed. It is done accordingly. The writ petition is allowed and all further proceedings pursuant to Ext.P2 stand quashed.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
W.P.(C) No.35610/2016 11