IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 152 of 2006()
1. STATE OF KERALA, REPRESENTED BY THE
... Petitioner
Vs
1. DR.A.RAJAN, S/O.KUNJIKANNAN,
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :03/04/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.152 OF 2006
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DATED THIS THE 3rd DAY OF APRIL, 2009
O R D E R
This petition is filed by the petitioner-State of Kerala,
represented by the Public Prosecutor, High Court of Kerala,
Ernakulam (Superintendent of Police, Vigilance and Anti
Corruption Bureau, Thrissur) against the order dated 14.9.2004 in
C.M.P.No.1131/03 in C.C.No.16/2002, VC No.4/97 of VACB,
Thrissur, whereby accused 1 and 2 were discharged by the
Enquiry Commissioner and Special Judge, Thrissur. The
respondent is the accused in V.C.No.4/97 of Vigilance and Anti
Corruption Bureau, Thrissur. He was charge sheeted by the
Deputy Superintendent of Police, VACB, Thrissur, for the offences
punishable under section 13(2) read with Section 13(1)(d) of
Prevention of Corruption Act, 1988 and under Section 120B IPC.
2. The statement of facts alleged in this petition are as
follows:
The respondent, while working as the Dean of College of
Veterinary and Animal Science, Mannuthy issued purchase order
dated 7.3.1995 to M/s Asceptis Systems, Coimbatore for the
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supply of incinerator of 100 Kg capacity. The 2nd accused is the
proprietor of the said firm. The 2nd accused accepted the purchase
order and an agreement was executed on 1.6.1995 by him for the
supply of incinerator on the conditions stipulated in the agreement.
Among other conditions, it was agreed that the payment of the
machinery will be effected only after satisfactory installation of the
machine and satisfactory demonstration of the same. Subsequently,
the first accused conspired with the 2nd accused and as a result of the
conspiracy the first accused effected payment of Rs.1,87,500/- by way
of cheque dated 28.6.2005 being 75% of the cost of the machinery.
The 2nd accused failed to demonstrate the smooth functioning of the
machine and thereby he had obtained undue pecuniary advantage of
Rs.1,87,500/- and resulted loss of the said amount to the Kerala
Agricultural University. It is alleged that the 1st accused abused his
position as a public servant for obtaining pecuniary advantage for
himself and for the 2nd accused and hence, the accused 1 and 2 have
committed the offence alleged by the prosecution.
3. The first accused submitted C.M.P.No.1131/03 praying for
discharge of the case against him. Both sides were heard by the
learned Special Judge. The learned Special Judge came to the
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conclusion that the agreement dated 1.6.1995 does not disclose any
material to show that the 1st accused did anything to defeat the interest
of the University and thereby to cause any unnecessary pecuniary loss
to the University. It was also found that there are no grounds available
on record for framing charge against accused 1 and 2 and that there
are no materials on record to support the prosecution case for
proceeding against the accused. Therefore, accused 1 and 2 were
discharged under Section 239 Cr.P.C. Certified copy of that order is
produced as Annexure I.
4. Aggrieved by the order dated 14.9.2004, this petition is filed
by the petitioner-State of Kerala, under Section 482 of Cr.P.C. with the
prayer to set aside Annexure I order.
5. Heard the learned Public Prosecutor and also the learned
counsel for the respondent.
6. It is argued by the learned Public Prosecutor that the 1st
accused is the Chairman of the Store Purchase Committee and the
prosecution case is that the 1st accused has taken an arbitrary decision
for purchasing the incinerator in conspiracy with the 2nd accused and
the reasons stated by the learned Special Judge for discharging both
accused under Section 239 of Cr.P.C. are not based on sound reasons.
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According to the learned Public Prosecutor, in the present case the
Investigators have collected evidence which are sufficient to establish a
prima facie case against the accused to proceed against them.
7. The prayer in this petition is opposed by the learned counsel
appearing for the respondent and submitted that this petition filed
under Section 482 of Cr.P.C. is not maintainable and the proper
remedy of the petitioner is to file a revision petition, which should be
filed within 90 days of the date of order. Accordingly, the time for
filing the revision petition had expired on 14.12.2004. Subsequently,
this petition is filed on 13.1.2006 under Section 482 of Cr.P.C. which is
not maintainable and is liable to be dismissed in limine.
8. In the light of the argument advanced by the learned
counsel for the respondent, I am not entering into the merits of the
case. It is the specific case of the petitioner/State of Kerala that the
reasons stated by the learned Special Judge for discharging accused 1
and 2 under Section 239 of Cr.P.C. are not based on correct facts of
the case and the discussions made in the impugned order would reveal
that the learned Special Judge has not properly considered the
evidence collected by the Investigators in this case and has casually
evaluated the same. On that basis, the present petition is filed under
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Section 482 of Cr.P.C. after the lapse of 1 year and 4 months with the
specific contention that the prosecution has collected evidence which
are sufficient to establish a prima facie case against accused 1 and 2
and that the evidence collected by the Investigating Agency are
sufficient to establish the guilt of the accused as alleged by the
prosecution. Thus, it is evident that the State of Kerala is challenging
the finding of the learned Enquiry Commissioner and Special Judge,
whereby accused 1 and 2 were discharged under Section 239 of
Cr.P.C., as per order dated 14.9.2004.
9. The extraordinary power under section 482 of Cr.P.C. has
to be exercised sparingly and should not be resorted to like remedy of
appeal or revision. It is well settled that the inherent power under
section 482 of Cr.P.C. can be exercised only when no other remedy is
available to the litigant and no where a specific remedy is provided by
the Statute. Where the aggrieved party has equally efficacious
alternative remedy under law, such extraordinary powers need not and
should not be invoked by this Court. Extraordinary situations may call
for extraordinary responses and it is only under such circumstances
that this court would be justified in invoking the powers under Section
482 of Cr.P.C. In the present case, the petitioner-State of Kerala has
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got a specific remedy of filing the revision petition. Even though they
are aggrieved by the impugned order, which was passed on 14.9.2004,
without resorting to that remedy, the present petition is filed after the
lapse of 1 year and 4 months, for the reason that the revision would be
barred by limitation. Rule of law and the procedure to be complied
with under the Code of Criminal Procedure is applicable to all parties
including the State of Kerala. No privilege can be given to the State of
Kerala being the prosecuting agency, in the present case. Where
remedies are otherwise available under the ordinary provisions of the
Code resort to such extraordinary inherent jurisdiction will not be
justified, unless exceptional circumstances of a given case warrant
invocation of such powers in the interests of justice.
10. The specific finding of the Special Judge as per the
impugned order is that even after perusal of the evidence available on
record, there are no materials for establishing a prima face case
against the accused and that no loss is caused to the University by the
conduct of the accused. On a perusal of the impugned order, I find
that it was passed by the learned Special Judge after considering the
evidence collected by the Investigators(regarding the facts of the case)
in its correct perspective, which cannot be interfered by this Court by
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exercising the extraordinary inherent jurisdiction as envisaged under
Section 482 of Cr.P.C.
11. According to the learned Public Prosecutor, only the first
accused has filed an application for discharge and in that petition, the
second accused was also discharged. On a perusal of the order, it is
evident that the Special Judge has considered the evidence collected by
the Investigators in the present case and since the case against the
first accused was not well founded, the case against second accused
also will not stand and both accused were discharged.
12. The learned Special Judge has considered the totality of
evidence collected by the Investigators in the present case and found
that there is no prima face case to proceed against both the accused
and they were discharged. Considering the facts and circumstances of
this case, I find that there is no merit in this petition and is liable to be
dismissed.
In the result, the Crl.M.C. is dismissed.
M.C.HARI RANI, JUDGE.
dsn