Kerala High Court
P.A. Poulose vs State Of Kerala on 19 February, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020/30TH MAGHA, 1941
WA.No.33 OF 2016
AGAINST THE ORDER/JUDGMENT IN WPC 15526/2013 DATED 09-07-2014
OF HIGH COURT OF KERALA
APPELLANT/S:
P.A. POULOSE, S/O. ANTONY, PANAKKAL HOUSE,
PACHALAM, KOCHI-682 012.
BY ADV. SRI.T.M.ABDUL LATHEEF
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME
DEPARTMENT, THIRUVANANTHAPURAM-695 001.
2 THE SUB INSPECTOR OF POLICE
HOSDURG POLICE STATION , KASARAGODE-671 315.
3 THE DIRECTOR GENERAL OF POLICE VIGILANCE
VIGILANCE DEPARTMENT, THIRUVANANTHAPURAM-695 001.
4 DAMODHARAN
RETIRED SUB REGISTRAR, PAIRADUKAN, KHAJHAGAD,
KASARAGODE - 671 315.
5 MANIRAN
FORMER VILLAGE OFFICER, UNNIPEDIKA, KALYAN ROAD,
BELLA, KASARAGODE - 671 531.
R1-R3 BY SENIOR GOVT.PLEADER SRI.TIK CHAND
R5 BY ADV. SRI.K.P.ANTONY BINU
R5 BY ADV. SRI.SURESH KUMAR KODOTH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.33 OF 2016
..2..
JUDGMENT
Dated this the 19th day of February, 2020 S.Manikumar, CJ.
Instant writ appeal is filed against the judgment dated 09.07.2014 in WP(C) No. 15526 of 2013, by which, the writ court dismissed the writ petition.
The reliefs sought in the writ petition are as follows:
i. To call for the records relating to Exhibits-P1 to P7 and to issue a writ of mandamus commanding respondents 1 and 2 to immediately take action against respondents 4 and 5 for the criminal offence committed by them and also the misuse of the official position by booking them under the Prevention of Corruption Act, 1988 and also under the provisions of Indian Penal Code, 1860 by arresting them and bringing under alw and also by taking departmental action for withholding their pension, etc.:
ii. To issue a writ of mandamus, commanding the first respondent to take immediate steps for suspending and dismissing respondents 4 and 5 from service based upon its undertaking before this Court in Exhibit-P6 judgment.
2. Short facts leading to the appeal are as follows:
"Appellant's brother P.A.Varghese was holding 20 Ares and 3 Sq.Meters of property in Re-survey No.194/1-D3-A-1 of Balla Village (50 Cents), which he obtained by virtue of Sale Deed No.3573/94 of Hosdurg Sub Registry. Out of the said 50 Cents by document No.43 of WA.No.33 OF 2016 ..3..
1998, 10 Cents of property was sold to the appellant. The sale was effected by virtue of document No.4331 of 1998 dated 14-12-1998. Out of the remaining 40 Cents by virtue of document No.33 of 2000, another 10 Cents of property was given to the 4 th respondent, P.C.Mary, wife of appellant's brother P.A.Varghese. Thereafter, by document No.1462 of 2000 dated 24-04-2000, another 10 Cents of property was also purchased by the appellant. The said 20 Cents thus purchased, was lying in 2 plots. After such assignment, the remaining extent was only 20 Cents and the appellant's brother P.A.Varghese died on 28-11-2004. Thus, the remaining extent left behind by the deceased was only 20 Cents. Appellant's brother's wife was employed at that time as Fair Copy Superintendent in the office of the District Collector. She retired from service only in the year 2008. She was having some close connection in the Sub Registrar Office and also having influence upon the Village Office as she is working in the District Collector. She along with her children with the fraudulent intention of deceiving the appellant and also with a view to make unlawful gain and to cause loss to the appellant, by utilizing the clout in the Sub Registrar Office and Village Office, etc. with the assistance and knowledge of the then Village Officer and Sub Registrar, in spite of the fact that the property left behind by the appellant's brother was only 20 Cents fabricated a false document styled as settlement deed. Thus, instead of 20 Cents, the property was taken as 40 Cents and in order to have easy registration with the help of the Village Officer and Sub Registrar created the said settlement deed and in the said document, the Village is stated as Hosdurg. After creating such false document, said Mary and her children colluding with one Mundakkal Fed Mathew, created document of sale as sale deed Nos.340 of 2010 WA.No.33 OF 2016 ..4..
and 5719 of 2010. The said documents were executed by the said Mary, who knew very well and was aware of the sale in favour of the appellant. As a matter of fact, appellant was paying the land tax in respect of his property and the said Mary with the connivance of the Village Officer and Sub Registry, in the sale deed executed in favour of Mundakkal Fed Mathew and his wife described the property as falling in Hosdurg Village instead of Balla Village. Later, another document was also executed as correction deed to correct the Village as Balla. Said malpractice was done by the registering authorities and the Village authorities by receiving bribe, etc. When came to know about the fabrication of such false document and the commission of the criminal offence a complaint was filed as C.M.P.No.2132 of 2011. The complaint filed before the Judicial First Class Magistrate Court-I, Hosdurg was numbered as C.M.P.No.2132 of 2011 and the same was forwarded by the said court to the 3rd respondent and a crime case was registered as Crime No.375 of 2011. From all these fabrication and forgery, etc., respondents 4 and 5 misused their official position and the same was done by the Sub Registrar, Village Officer, etc. with the bad intention of defrauding the petitioner. If the local Police or their higher official is conducting the investigation, there will not be a further inroad, except delaying the matter. As office based investigation is necessary for the purpose of the forgery, registration of the document, etc. entrusting the investigation with independent wring of the Police, including both the Vigilance Director and at least Crime Branch is necessary.
In spite of the fact that the entire materials are placed, no progress is made in the investigation and in the said circumstances the petitioner has approached the writ court by filing W.P.(C) No.7794 of WA.No.33 OF 2016 ..5..
2012. In the said Writ Petition, a statement was filed by the 3 rd respondent therein, wherein it is stated that the petition filed by the petitioner before the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram, alleging commission of criminal offence by Tahsildar and Village Officer, Hosdurg was forwarded to the Government on 02-06-2012 for necessary action and the Government has forwarded the same to the Revenue Department for enquiry. When the said Writ Petition was disposed off, the writ court held that it is for the Government to take further action in the matter. However, though the 4th respondent is involved in several other cases also, it is for the Government to initiate speedy action and further though the Revenue Department has forwarded the complaint, no action is taken sofar by them, and accordingly, petitioner submitted a further complaint producing the copy of the judgment. Now, the attempt of the respondents is to allow the corrupt officials to save themselves by having a smooth retirement, receiving all pensionary benefits from the Government. Hence, the appellant had approached this Court by filing W.P.(C) No.15526 of 2013(M), but the learned single Judge held that the reliefs sought for are those which were prayed for in the earlier Writ Petition and accordingly, dismissed the Writ Petition, against which the appellant has approached this Court."
3. Before the writ court, writ petitioner produced Ext.P5 complaint filed by him for a vigilance enquiry, and the same is reproduced hereunder:
"Sir, I owned 20 Cents of property which I purchased from my brother late Varghese through Sale Deed Nos.433l of 1998 dated 14-12-1998 and 1462 of 2000 dated 24-04-2000 of Sub Registrar Office, Hosdurg. The said property is specifically bounded with clear boundaries. I purchased WA.No.33 OF 2016 ..6..
the said property from my brother who was having 50 Cents and during the life time of my brother Varghese he had given 10 Cents of property to his wife the 3rd Counter Petitioner. Thus at the time of death of my brother he left behind\only 20 Cents in Survey No.194/1D3Al of Hosdurg Village.
2. The 3rd Counter Petitioner was employed as Fair Copy Superintendent in District Collectorate, Kasargode. Misusing her official position, by colluding and by conspiracy with the first and 2 nd Counter Petitioners who are the Revenue and Registering authorities, created a false document as Settlement Deed No1226 of 2007 dated 30-03-2007 of Sub Registrar Office, Hosdurg, by which the property of my brother late Varghese was stated as 40 Cents, which the Counter Petitioners 3, 4 and 5 got as legal heirs of deceased Varghese. In fact in the registration records especially in the encumbrance certificate the transfer of the 30 Cents including that of the 3rd Counter Petitioner and myself was clearly stated. Hence unless there is cheating and forgery, etc. and through corruption of acceptance of brave and illegal gratification no Sub Registrar would embark upon to have a registration of such a document. For such registration tax remittance receipt was also issued by the 2 nd Counter Petitioner and they lead to the registration of a forged document which was made with the ulterior purpose of defeating my interest.
3. The Counter Petitioners 4 and 5 have created document in favour of 3rd Counter Petitioner with the connivance of Counter Petitioners 1 and 2 and thereafter using the very same office by receiving illegal gratification sale deed was executed by the 3 rd Counter Petitioner selling 50 Cents of property instead of 30 Cents. The said document was also registered by the first Counter Petitioner and at that time also the encumbrance certificate entries were totally overlooked. They made a false entry in the said document by showing the Village as Balla Village. Later another document No.5719 of 2010 was executed as correction deed in which the Village was mentioned as Hosdurg. WA.No.33 OF 2016 ..7..
4. The Accused 1 and 2 have used their official position for the purpose of satisfying the 3"' Counter Petitioner who was also a government employee and all of them worked for the purpose of making undue gain and to cause loss to me. The offence committed by them attracts the provisions of the Prevention of Corruption Act. The registration of the document and the acceptance of tax and issuance of tax receipt are all made by misusing official position by acceptance of brave and accordingly all of them are liable to be prosecuted under the Prevention of Corruption Act. Creation of a series of documents and registration of such documents made with a view to make unlawful gain and cause loss to me by all the Counter Petitioners amounts the commission of the offence under Section 420, 465, 468, 47! and Section 34 of the Indian Penal Code, etc. I am enclosing Photostat copies of all the relevant document the list of which is given hereunder. Hence it is requested that investigation may be conducted in the matter as official position was misused and forged documents were created by all the Counter Petitioners for the purpose of causing loss to me. The same was done willfully and intentionally and the registration and issuance of tax receipt clearly shows that all the Counter Petitioners have acted jointly for the purpose of commission of the offence. So immediate investigation may be conducted and all Counter Petitioners may be brought under law.
Dated this the 15*" day of February 2012.
Sd/-
P.A.POULOSE PETITIONER"
4. Since no action was taken on Ext.P5 complaint, writ petitioner submitted Ext.P7 complaint to the Government, which is reproduced below:
"18th JANUARY 2013 To The Secretary to Government, Home Department, WA.No.33 OF 2016 ..8..
Government of Kerala, Thiruvananthapuram-695 001.
Sir, My client Sri.P.A.Poulose, S/o.Antony, residing at Panakkal House, Pachalam, Cochin-682 012., filed W.P.(C ) No.7794 of 2012 before the Honourable High Court and the Honourable High Court rendered judgment, the operative portion of the same reads as under:
Even assuming that the allegations raised in the complaint have some nexus or connection with disputes to be adjudicated by criminal or civil courts, still, so far as the misconduct imputed against the revenue officials that is a matter which can be looked into by the authority concerned. Learned counsel for petitioner at this stage pointed out one among 10th and 11th respondents is not from Revenue Department but of registration department. Competency of Revenue department to look into any misconduct imputed against that person in the Registration department is doubtful. However that aspect also is not a matter to be taken as a serious issue in considering the scope of any direction to be issued with respect to Ext.P-15 complaint. In the given facts and circumstances presented and also taking note of the statement made by 9th respondent that Ext.P15 complaint has now gained the attention of Revenue department, there will be a direction to the first respondent to take appropriate steps giving suitable instructions/directions to the concerned authorities of Revenue department to examine the allegations made in Ext.Pl5 complaint in accordance with law. In case any enquiry by the registration department is also called for with respect to allegations raised in the Ext.P15 complaint then such steps as found necessary shall also be proceeded with. The first respondent shall make every endeavor to see that enquiry over Ext.P15 complaint, whether it by Revenue or Registration Department, or both of them, shall be completed at the WA.No.33 OF 2016 ..9..
earliest, at any rate within a period of six months from the date of receipt/production of a copy of this judgment.
However in spite of the said direction though a period of six months was given no step was taken by you against the said officials who were arrayed as additional Respondents 10 and 11 in the said Writ Petition.
In view of the inaction of your part the said officials are getting all the service benefits and the co-accused are at large. So for taking further action a copy of the judgment dated 6th December 2012 passed by the Honourable High Court in "W.P.( C) No.7794 of 2012 is sent herewith.
Thanking you, Yours faithfully [T.M.ABDUL LATIFF] ADVOCATE"
5. As directed by the writ court, 2 nd respondent has filed a statement, and the same is extracted hereunder:
"1. The above Writ Petition is filed praying for the issuance of a writ of mandamus commanding the respondents 1 & 2 to take action against the respondents 4 & 5 for the criminal offence committed by them and also for the misuse of official position by booking them under the Prevention Of Corruption Act and also under the provisions of the Indian Penal Code, and initiate departmental action for withholding their pension etc. and to direct the first respondent to take immediate steps for suspending and dismissing respondents 4 & 5 from service, etc.
2. It is contended that Crime No. 375/11 U/s. 419, 465, 468, 474 r/w 34 IPC was registered at Hosdurg Police Station on WA.No.33 OF 2016 ..10..
25.03.2011 as per the complaint preferred by Sri. Paulose, who is the petitioner herein before the Hon'ble Judicial First Class Magistrate Court-I, Hosdurg as CMP No. 2132/2011 and forwarded to this respondent under Section 156(3) Cr.P.C. for registering crime and to conduct investigation;
3. Brief of the case is that on 20.01.2010, the accused A1 Smt. P. C. Mary has fraudulently and in collusion with the other accused has executed a registered sale deed of 50 cents of property as Deed No.340/2010 of the S.R.O., Hosdurg in favour of 2nd and 3rd accused viz, Mr. Mundakkal Fed Mathew and his wife Smt. Mercy Joseph through forgery, with intention of depriving the de facto complainant his lawful rights over the 20 cents out of the above property already purchased by him and thereby caused wrongful loss to him etc. One Smt. P.C Marry @ Pandare Parambil Chavaro Marry aged 59 years, W/o P.A.Varghese, Panakkal House, Koyakundu, Balla village, Kasargod district, Dr. Mundakkal Fed Mathew, aged 48 years, S/o Mathew John Mundakkal, Mundakkal House, Pathayapurayil, Kanhangad south and Smt. Mercy Joseph, aged 44 years, W/o. Mundakkal Fed Mathew, Mundakkal House, Pathayapurayil, Kanhangad south, Kasaragod are accused Nos. 1 to 3 respectively in the above crime.
4. The investigation of the case was conducted by Sudhakaran, the then SI of Police, Hosdurg. During the course of investigation it is found that a case in Cr. No. 122/2011 U/s. 420 IPC was already registered in connection with the above incident as per the complaint preferred by the above named Dr. Mundakkal Fed Mathew, before the Hon'ble Judicial First Class Magistrate Court-l, Hosdurg as CJMP No.508/11, in which it is alleged that Panakkal WA.No.33 OF 2016 ..11..
P.C. Mary @ Pandare Parambil Chavaro Marry (A1 in both of the cases) made the de facto complainant to believe that she was the absolute owner in possession and enjoyment of the property admeasuring 50 cents in Re.Survey No 194/lD3A1 in Bella village, acted in collusion with accused A2 her son Vimesh and A3 Paulose.
P. A, sold the property to the defacto complainant and his wife as per sale deed No.340/2010 dated 20.01.2010 of the SRO Hosdurg by deliberately suppressing the fact that A3 has got legal right and ownership over 20 cents out of the 50 cents of property and that the executants do not have ownership over the entire 50 cents as claimed etc.
5. Mr. Paulose, the defacto complainant in Crime No.375/11 and Accused No.1 Smt.P.C.Marry are close relatives. The property having an extent of 50 cents in Re-Survey No. 194/1D 3A1 of Bella village was originally owned by Mr. P.A.Varghese, who is the brother of Mr.Paulose and husband of accused No. 1, Smt.P.C.Mary. Out of the said 50 cents of land, he sold 10 cents to the defacto complainant as per Sale deed No. 4331/98 dated 15.12.98 and later on, another 10 cents by virtue of Sale deed No.1462/2000 dated 24.04.2000 of SRO, Hosdurg. Thus Mr. Paulose became the absolute owner of an extent of 20 cents of land out of the total area of 50 cents. The complainant used to visit his property very rarely, since he is residing far away at Ernakulam. After the death of Mr. P.A.Varghese on 28.11.2004, the remaining 30 cents devolved on his wife and son. However after the death of Varghese, the entire property of 50 cents including the 20 cents owned by the complainant was mortgaged and a bank loan of Rs. 15 lakhs was availed as loan by A1 from SBI Kanhangad. The loan WA.No.33 OF 2016 ..12..
became overdue and to clear off the liability, she sold the above property to Mr. Fed Mathew and his wife Mercy Joseph for an amount of Rs.28 Lakhs. When came to know of the said transaction, the complainant raised his claim over the property. Thereupon, Mr. Fed Mathew filed a complaint as CMP No.508/11 before the Hon'ble Judicial First Class Magistrate Court-l, Hosdurg against P.C.Mary (A1), Vimesh (son of A1) and Mr. Paulose and a court endorsement case was registered at Hosdurg PS as Cr. No. 122/11 U/s.420 lPC on 28.01.11. Enquiry revealed that Mr. P.A.Paulose was not actually involved in the case and he was removed from the array of accused and his statement was recorded as a witness in the above case.
6. Thereafter, a court reference as CMP No.2132/11 was received at Hosdurg Police Station, which was filed by the complainant Mr.Paulose and registered as Crime No. 1375/11 U/s. 419/165, 468, 474 r/w 34 IPC of Hosdurg Police Station against Smt. P. C. Mary, Mr. Fed Mathew and Smt. Mercy Joseph. On a proper verification, it is revealed that the case was connected to the same incident in Cr No 122/11 and investigation disclosed that respondents 2 and 3 have not committed any offence in this case. Since both of the cases are connected to the same incident and with the same accused persons, report has been submitted before the Hon'ble court for clubbing the case in Cr. No.375/11 with Crime No.122/11 of Hosdurg Police station and to continue the investigation of the case in Cr No.122/11 and also to refer the case in Cr. No.375/11 as 'Further action dropped' on 31.03.11. Consequently after thorough investigation, Charge sheet was submitted in Crime No.122/11 against the accused (A1) Panakkal WA.No.33 OF 2016 ..13..
PC Marry @ Pandara Parambil Chavaro Marry and (A2) Vimesh P.V under Section 420 IPC on 26.04.2011. The Hon'ble Court later on granted bail on 06.04.11. In connection with same incident, a Civil case as O.S.No. 39/2011 is also pending before Hon'ble Munsiff Court, Hosdurg filed by Mr. Paulose, the defacto complainant in the above crime.
7. Certified copies of all the relevant documents had been collected from the concerned offices and recorded the statements of witnesses during the course of investigation. The statement of witness Mr. Abdul Rasak, Junior Superintendent, Sub Registrar Office, Hosdurg revealed that the details of deeds executed in favour of the defacto complainant by Mr. Varghese in the years 1998 and 2000 were not entered in the encumbrance register of the Sub Registrar Office and the reason could not be clarified.
8. After a detailed investigation it is revealed that, A1 P.C.Mary @ Pandaraparambil Chavaro Mary who is the accused No.1 in Cr. No 375/11 also, and her son Vimesh have committed the offence punishable under Section 420 lPC, and charge sheet was submitted against them under Section 420 IPC before the Hon'ble Judicial First Class Magistrate Court-l, Hosdurg on 26.04.11. The case is now under trial as CC No 528/2011 before the Hon'ble Court. The respondent has perused the CD file in Cr. No. 375/11 u/s 419,465,468,474 r/w 34 IPC of Hosdurg Police Station registered as per the complainant of P. A. Paulose, S/o. Antony, Panakkal House, Pachalam, Kochi (Petitioner in the above WPC) and connected case in Cr. No 122/11 u/s. 420 IPC of Hosdurg Police Station and it is revealed that the incidents in the above cases are one and same and therefore 2 crimes could not be WA.No.33 OF 2016 ..14..
proceeded with for a single offence.
9. The investigating Officer has filed an application on 26.07.2013 before the Hon'ble JFCM Court seeking sanction for further investigation to probe the involvement of respondents 4 and 5 in the crime. The above petition is pending consideration before the Hon'ble JFMC I Court, Hosdurg. immediately on getting sanction, further investigation will be conducted in accordance with law for which some more time is required. Hence it is humbly submitted that 3 months time more may kindly be granted."
6. Before the writ court, a counter affidavit has been filed by the 5 th respondent, wherein at paragraphs 4, 5 & 6, it is contended as follows:
"4. The writ petitioner makes all sorts of allegation against his brother's wife Smt Mary, without making her a party. The allegation against her of having defrauded the petitioner being a matter entirely within the purview of Crime No. 375/2011 as stated in the writ petition, there is no justification for the petitioner to canvass the disputed facts and pursue in a parallel proceeding thereby causing prejudice to the investigation. The whole basis on which petitioner sought action against the petitioner is on Exhibit P6 judgment in WP(C) No.7794/2012 wherein this Hon'ble Court without examining the merits of the matter issued a direction to the first respondent to look in to Exhibit P15 and take decision thereon within a time limit. Pursuant to that enquiry was conducted and in which no incriminating aspects or circumstances revealed to proceed further. Petitioner's mere desire to implicate me even in the absence of any substance or material does not constitute grounds to seek relief of dismissal from service, arrest etc. The Writ WA.No.33 OF 2016 ..15..
petitioner has no right to indulge in making unfounded allegations, that too, affecting my character and reputation.
5. Exhibit-P5 complaint preferred by the writ petitioner before the 3rd respondent does not disclose any incriminating circumstances against me. There is absolutely no basis or justification in making an allegation of corruption against me. The execution of document allegedly made fraudulently by Smt PC Mary is a matter now pending before the Judicial First Class Magistrate Court, Hosdurg even going by the averments in the writ petition. That apart, I have nothing to do with the aforesaid alleged execution of document. The only allegation possibly made against me is the issuance of receipts for payment of tax in respect of 50 cents, in favour of Smt Mary. The fact that writ petitioner had obtained 20 cents of property by valid documents was not brought to my notice, at the time of issuance of tax receipt. This is on account of the fact that mutation in respect of 20 cents covered by the documents of registration was not affected in the village records. Further tax was collected for 50 cents from Smt. P.C. Mary, on perusal of the title deed under which she claimed right. She also produced a letter from State Bank of India Kanhangad branch showing that there is a loan outstanding in which a mortgage was created in respect of this 50 cents. Therefore I acted in good faith and issued tax receipts in favour of Smt PC Mary. The non entry in the mutation register IS also not an act attributable to me. Exhibit P5 complaint containing false averments alone cannot be the basis to conclude that have received illegal gratification for issuing tax receipts in favour of Smt P.C. Mary. The mere omission to take note of the transfer of 20 cents in favour of the writ petitioner cannot at WA.No.33 OF 2016 ..16..
any rate be termed as an act amounting to offence under the Prevention of Corruption Act. The writ petitioner has moved this Hon'ble Court in WP(c) No. 16450 of 2011, seeking police protection wherein a prayer was specifically made for a direction to conduct investigation in respect of the same subject matter by a high ranking official. But this Hon'ble Court by judgment dated 4.7.2011 directed the writ petitioner to move the concerned Magistrate in view of the decision of the Hon'ble Supreme Court in Sakiri Vasu Vs State of U P 2008 (1) KLT 724(SC). In view of the above direction the prayer sought for by the petitioner in this writ petition is not liable to be granted. The writ petition is totally misconceived and no relief is liable to be granted to the writ petitioner. The writ petitioner has not made out any grounds to invoke the extra ordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India.
6. The Grounds raised in the writ petition is devoid of merit. There is no bonafides in the writ petition. No statutory infraction is pointed out by the writ petition for issuance of any of the writ/direction to the respondents as prayed for. The writ petitioner sought interim prayer of suspension and dismissal of respondents 4 and 5 from service which being main the prayer is totally impermissible. Pending consideration of such prayer petitioner again filed interim application dated 10.10.2013 as IA No. 13809/2013. Suppressing the pendency of IA No. 13809/2013 petitioner again filed IA No. 16405/13. In the affidavit in support of IA No. 16405/13 petitioner falsely affirmed that he has not approached the Hon'ble Court earlier. Petitioner in the attempt to harass me deliberately misled this Hon'ble Court and liable to be WA.No.33 OF 2016 ..17..
dealt with for having committed the offence of perjury. The petition as well as writ petition is therefore liable to be dismissed with exemplary cost. This counter affidavit is filed without prejudice to my right to file a detailed counter affidavit in the writ petition."
7. Adverting to the pleadings and submissions, writ court dismissed WP(C) No.15526 of 2013, as follows;
"The allegations in the writ petition and in the documents produced along with the writ petition against respondents 4 and 5 are very sketchy and vague. The authorities concerned, who are competent to initiate disciplinary action against respondents 4 and 5 are not impleaded. On the other hand, only the Director General of Police(Vigilance) and the sub Inspector of Police, Hosdurg are arrayed as parties to the writ petition. Further, the petitioner himself has shown the fourth respondent in the writ petition as 'Retired Sub Registrar'. It is thus evident that this writ petition is substantially for the same relief, which the petitioner could not secure in the earlier Writ Petition. Petitioner is not entitled to file successive writ petitions on the same cause of action."
8. Said judgment is assailed on the following grounds;
"(B) Writ court did not consider the issue involved in this case, especially the falsification of records and fraud practiced by respondents 4 and 5. In the case of respondents 4 and 5, they are Government officials and for initiating criminal proceedings against them, there is a set procedure to be followed and it is for the Government to consider the criminal offences committed by them, in accordance with the provision of the Criminal Procedure WA.No.33 OF 2016 ..18..
Code and Prevention of Corruption Act, etc., and to charge them with offenses committed by them. It cannot be done by the Investigation Officer by obtaining an order for further investigation by the learned Magistrate. It was due to the said reason the appellant had approached this Court and in the case of this nature where there is misuse of Government office and position for private benefit the learned single judge could have considered the same and granted the relief accordingly without dismissing the petition stating that more or less for the same relief earlier Writ Petition was filed.
(C) Writ court ought to have found that as regards respondents 4 and 5, though by Ext.P-6 judgment, there was a direction and that action is being taken, and the facts stated in the said Writ Petition and the present Writ Petition disclosed the foul play and misuse of position committed by respondents 4 and 5, the finding that there are no averment to justify this Court, the grant of relief is also not correct, since it is a matter to be subjected to detail investigation by the police and the departments concerned.
(D) Appellant further contended that it is for the Government to take into account all such facts and also to collect materials for initiating action against respondents 4 and 5 since they are Government officials. There is no denial of the fact that respondents 4 and 5 have deliberately or unwillingly acted or their official position were misused. It is a matter which is to be further investigated and in such cases holding on too many technicalities by stretching the liability upon the Petitioner to provided full evidence is not applicable in a case of this nature. The document WA.No.33 OF 2016 ..19..
fabricated itself makes out the foul play and fabrication of records which was done for personal gain and favouritism."
9. Heard learned counsel for the parties and perused the material available on record.
10. Material on record discloses that earlier, the appellant has filed Crl.M.C. No.1135 of 2013 for a direction, cancelling Annexure-A15 final report in Crime No.375/2011 of Hosdurg Police Station, clubbing the same with Crime No.122/2011, which is now pending as C.C.No.133/11 before the learned Judicial First Class Magistrate Court-I, Hosdurg, and for a direction to the 2nd respondent to proceed with Crime No.375/2011 by conducting proper investigation based upon the material already available and also based upon the documents seized by the Police and produced by the petitioner along with the complaint and to submit a final charge sheet by including respondents 3, 4 and 5 and other accused, who are respondents 6 and 7.
11. Facts pleaded in Crl.M.C. No.1135 of 2013 summarised by this Court, are as follows:
"The petitioner lodged a complaint before the Station House Officer, Hosdurg Police Station alleging commission of certain offences in respect of property comprised in Re-Survey No.194/1-D3-A-1 of Balla Village. The allegation is that certain documents were forged in respect of the said property. On the basis Crime No.375/2011 was registered at Hosdurg Police WA.No.33 OF 2016 ..20..
Station against respondents 3 to 7 herein. Obviously, respondents 4 and 5 herein had filed another complaint in respect of the same property as against respondents 3, 6 and 7 herein. Based on that complaint Crime No.122/2011 was registered in the very same Police Station. After registration of the said case, joint investigation was conducted in respect of the said crimes. Subsequently, Annexure-A16 Final Report was laid in Crime No.375/2011 viz., the crime registered based on the complaint made by the respondents herein."
12. Case of the appellant in Crl.M.C. No.1135 of 2013 and the reply of the learned Public Prosecutor, as narrated in order dated 25.03.2013 in Crl.M.C. No.1135 of 2013, are as follows:
"The specific case of the petitioner is that the 3 rd respondent is the daughter of the 6th respondent and besides them, respondents 4 and 5 had also played roles in the commission of the offences alleged which led to the registration of Crime No.375/2011. Therefore, it is contended that failure to make respondents 3 to 5 as accused, based on the allegations Crl.M.C.No. 1135 of 2013 4 made in his complaint which ultimately led to the registration of the Crime No.375/2011, is illegal. In other words, according to the petitioner the very action on the part of the Investigating Officer in clubbing the Crime Nos.122/2011 and 375/2011 and conducting a joint investigation had virtually caused prejudice to him inasmuch as after such investigation final report was laid only in crime No. 122/2011 alleging commission of offence under Section 420, Cr.P.C. only that too, only against respondents 6 and 7 and the prayer made as per Annexure-A16 in respect of Crime No.375/2011 is absolutely unsustainable in law. WA.No.33 OF 2016 ..21..
According to the petitioner the investigation in Crime No.375/2011 should have been conducted independent of the investigation in Crime No.122/2011 and a separate Final Report should have been laid in that crime. The learned counsel appearing for the petitioners submitted that the prejudice caused to the petitioner is very much evident from the very fact that in his complaint that ultimately culminated in registration of Crime No.375/2011 he made the very defacto complainant in Crime No.122/2011 also as an accused, but the impact of the clubbing of the crimes for Crl.M.C.No. 1135 of 2013 5 the purpose of investigation made by the Investigating Officer is that the defacto complainant in Crime No.122/2011 would not and could not be made an accused whilst he would only be cited as a Charge Witness. In such eventuality the petitioner herein would not be in a position to prosecute his case against the defacto complainant in Crime No.122/2011. The learned Public Prosecutor per contra contended that the procedure adopted by the Investigating Officer cannot be said to be illegal or improper as he conducted a joint investigation in both the cases on finding that the incident that led to the registration of the Crime Nos. 122/2011 and 375/2011 is one and the same. It is further submitted that evidently, the allegations raised by the petitioner in his complaint that led to the registration of Crime No.375/2011, was also taken in to account and investigation had actually been conducted in respect of such allegations as well. In short, according to the learned Public Prosecutor the allegations made by the petitioner in his complaint that led to the registration of Crime No.375/2011 were also investigated during the investigation in Crime No.122/2011 and ultimately, it was Crl.M.C. No.1135 of 2013 6 found that culpability can only be attributed on respondent Nos. 6 and 7 and therefore they alone were charged for commission of offence under Section WA.No.33 OF 2016 ..22..
420, IPC. The charge sheet already been laid in Crime No.122/2011 was ultimately taken on file by the learned Magistrate Court as C.C.No.133/2011."
13. Adverting to the rival submissions and materials on record, a learned Single Judge of this Court by judgment dated 25.03.2013 in Crl.M.C. No.1135 of 2013 ordered as under:
"The rival contentions as adverted above would disclose certain relevant aspects. Obviously, in the complaint made by the petitioner that led to the registration of Crime No.375/2011 the very complainant in Crime No.122/2011 was also made an accused. By clubbing the investigation the Investigating Officer must have, virtually, failed to conduct an investigation in to the allegations made by the petitioner against the complainant in Crime No. 122/2011 and that fact is evident from the decision to continue with the investigation in Crime No.122/2011. The investigation was proceeded with taking in to account the allegations made by that defacto complainant in crime No.122/2011. There cannot be any doubt with respect to the fact that in the complaint that ultimately led to the registration of Crime No.122/2011 there would not have been any allegation/accusation, at all, against the respondents 3 to
5. In short the grievances of the petitioner is that in respect of the culpability or otherwise of respondents 3 to 5 no investigation was conducted on his complaint that led to the registration of Crime No.375/2011 of Hosdurg Police Station. Yet another contention is that in his complaint he had alleged commission of offences under Sections 419, 465, 468 and 474 r/w Section 34 of the Indian Penal Code against the respondents 3 to 7. Annexure-A9 would reveal WA.No.33 OF 2016 ..23..
that Crime No.375/2011 was registered for offences punishable under Sections 419, 465, 468 and 474 r/w Section 34 of the Indian Penal Code. Obviously, in C.C.No.133/2011 apart from the fact that only respondents 6 and 7 herein are made accused therein the accusation against them is only for commission of offence under Section 420, IPC. I have adverted to all these aspects only for the purpose of giving stress to the point that it is only appropriate for the petitioner to take up such matters before the court below by filing an appropriate application despite the taking of cognizance on the final report laid in Crime No. 122/2011 which was taken on file as C.C.No.133/2011. The petitioner is therefore, left at liberty to file a separate complaint raising his grievances within two weeks from the date of receipt of a copy of this order. To enable the petitioner to prefer such a petition and the learned Magistrate to consider such a petition, if filed within the stipulated time, further proceedings in C.C.No.133/2011 will stand stayed for a period of four months. Needless to say that the learned Magistrate may pass appropriate order in C.C.No.133/2011 taking note of the situation arising from the consequential proceedings pursuant to this order."
14. Thus, it could be seen from the above, the grievance of the appellant that suitable action has not been taken against the officials of the Registration and Revenue departments has been considered, and accordingly, by judgment dated 25.03.2013 in Crl.M.C. No.1135 of 2013, liberty has been given to the appellant herein to submit a petition to the learned Magistrate, before whom CC No. 133 of 2011 was pending. It is to be noted that charge sheet has been filed in this case.
WA.No.33 OF 2016 ..24..
15. In Sakiri Vasu v. State of U.P. and Ors. reported in 2008 (1) KLT 724, the Hon'ble Supreme Court held as under:
"16. The power in the Magistrate to order further investigation under S.156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide S.173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide -- State of Bihar v. A. C. Saldanna, [(1980) 1 SCC 554]."
16. The above observation in Sakiri Vasu's case (cited supra) has been referred/relied on in some of the decisions of this Court, which are as under:-
1. Poulose v. The State of Kerala [1990 (1) KLJ 627]
2. P. Gopalakrishnan v. State of Kerala and Ors. [2006 KHC 366]
3. Vasanthi Devi v. S.I. of Police and Ors. [2008 (1) KLT 945],
4. G. Arokiya Marie v. Superintendent of Police and Ors. [2008 Cri.L.J 4257]
5. Fr. Jose Poothrikkayil v. Central Bureau of Investigation MANU/KE/0672/2008
6. Muhammed Ashraf and Ors. v. Union of India [ILR Ker. 2008 (4) 404]
7. Santhosh Madhavan v. C.I of Police and Ors. [2008 Crl.L.J 4254]
8. State of Kerala and Ors. v. Mariyu and Ors. MANU/KE/0198/2008
9. Aloshia Joseph v. Joseph Kollamparambil and Ors. [2009 (1) KLT 740]
10. Thomas v. Nandakumar Nair and Ors. MANU/KE/0544/2009
11. Murukeshan v. State of Kerala and Ors. [2010 (2) KHC 621]
12. Mathew Franco v. State of Kerala and Ors. MANU/KE/0387/2010
13. Patheyi v. The State of Kerala and Ors. MANU/KE/0528/2010
14. Chandran Bose Kuttikkad v. C.R.Ramadas and Ors. MANU/KE/0995/2010
15. Easar Telecom Infrastructure (P) Ltd. v. The Circle Inspector of Police and Ors. [2011 (2) KLT 516]
16. Poulose P.A. v. The Deputy Superintendent of Police and Ors.
MANU/KE/1065/2011
17. P. Narayanan and Ors. v. State of Kerala and Ors. MANU/KE/1082/2011 WA.No.33 OF 2016 ..25..
18. Sreekumar Monon and Ors. v. Baby container Terminal Pvt. Ltd. and Ors.
[2012 (1) KHC 808]
19. Joseph v. Antony and Ors. [2012 (2) KHC 420]
20. Chandran Pillai v. State of Kerala [2012 (4) KLT 4]
21. Joy Kiatharath v. State of Kerala and Ors. [2013 (4) KHC 235]
22. A.X.Varghese v. State of Kerala [2014 (3) KLJ 293]
23. Rashida v. The Sub Inspector of Police [(2014) SCC Online Ker 20617]
24. Central Bureau of Investigation v. State of Kerala and Ors. (2015 KHC 29)
25. Prakash v. State of Kerala and Ors. [2015 (3) KLT 528]
26. Alex v. State of Kerala and Ors. MANU/KE/1119/2015
27. Mahipal Yadav v. The State of Kerala and Ors.[2016 (3) KLJ 909]
28. P.C.Aathikka v. The State of Kerala and Ors. [2016 (2) KHC 5]
29. Sathyan Naravoor v. Union of India and Ors.[2017 (2) KLT 43]
30. Gopalan Adiyodi Vakkeel Smaraka Trust v. State of Kerala and Ors. [(2018) SCC Online Ker 1961]
31. K. Unnikrishnan v. State of Kerala and Ors. MANU/KE/4015/2018
32. Reetha v. The Sub Inspector of Police, Irinjalakuda Police Station [2018 SCC Online Ker 191]
33. V.S.Sunitha v. The Federal Bank Ltd. and Ors. (2018 SCC Online Ker 12866)
34. Fr. Sebastian Vadakkumpadan v. Shine Varghese and Ors. [2018 (3) KLT 177]
35. State of Kerala and Ors. v. C. P. Mohammed and Ors. [2019 (4) KHC 359]
36. Federal Bank Limited v. A.V.Punnus [2019 (3) KLT 784]
37. Rajendran Pillai v. State Police complaints Authority and Ors. [2019 (4) KLT 438]
38. The Director, CBI and Ors. v. Jomon Puthenpurakkal and Ors.
[2019 (1) KLJ 285]
39. Fr. Jose Poothrikkayil v. Union of India (UOI) [2019 (1) KLJ 159]
17. From the material on record, it could be deduced that in terms of the judgment in Crl.M.C. No.1135 of 2013 dated 25.03.2013, the appellant has not filed a petition before the learned Magistrate, before whom, CC No. 133 of 2011 is pending. On the contra, appellant, he has filed W.P.(C) No.15526 of 2016 and sought for the prayers extracted above. When a WA.No.33 OF 2016 ..26..
learned Single Judge of this Court by judgment dated 25.03.2013 in Crl.M.C. No.1135 of 2013 has directed the Government to move the criminal court, before whom the case is pending, the appellant seeks for a different prayer in W.P.(C) No.15526 of 2016. Section 482 of the Code of Criminal Procedure, 1973 reads as under:
"482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
18. Article 226 of the Constitution of India states as follows:
"226. Power of the High Courts to issue certain writs.-
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of WA.No.33 OF 2016 ..27..
such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of article 32."
19. If, for any reason, the appellant is aggrieved by the decision in Crl.M.C. No.1135 of 2013 dated 25.03.2013, his remedy lies before the Hon'ble Supreme Court. Directions issued in the judgment dated 25.03.2013 in Crl.M.C. No.1135 of 2013 remain unchallenged and cannot be altered by WA.No.33 OF 2016 ..28..
filing a writ petition under Article 226 of the Constitution of India for a different prayer. At the risk of repetition, prayers sought for in W.P.(C) No.15526 of 2013 are reproduced.
"i. To call for the records relating to Exhibits-P1 to P7 and to issue a writ of mandamus commanding respondents 1 and 2 to immediately take action against respondents 4 and 5 for the criminal offence committed by them and also the misuse of the official position by booking them under the Prevention of Corruption Act, 1988 and also under the provisions of Indian Penal Code, 1860 by arresting them and bringing under law and also by taking departmental action for withholding their pension, etc. ii. To issue a writ of mandamus, commanding the first respondent to take immediate steps for suspending and dismissing respondents 4 and 5 from service based upon its undertaking before this Court in Exhibit-P6 judgment."
20. Giving due consideration to the material on record, we are of the view that the writ court, having considered the reliefs sought for, has rightly come to the conclusion that the said reliefs cannot be granted. We find no error in the judgment impugned before this Court.
In the light of the above discussion and decisions, instant writ appeal is dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Bka/19.02.2020