IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2641 of 2003(A)
1. R.DINAKARAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF VIGILOANCE &
3. THE DEPUTY SUPERINTENDENT OF POLICE,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :22/02/2008
O R D E R
V.K.MOHANAN, J.
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Crl.M.C.No. 2641 of 2003
---------------------------------------------
Dated this the 22nd day of February, 2008
O R D E R
The petitioner, who is the accused in C.C.No.6
of 2006 pending before the Court of the Enquiry
Commissioner and Special Judge, Thiruvananthapuram,
approached this Court by filing this petition under Section
482 of the Code of Criminal Procedure seeking to quash
Annexure-A5 final report in C.C.No.6 of 2006 which is
instituted for the offences punishable under Section 5(2)
read with Section 5(1)(e) of the Prevention of Corruption
Act, 1947(hereinafter referred to for short as ‘the P.C.Act,
1947’) and Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act, 1988 (hereinafter referred
to for short as ‘the P.C.Act, 1988’).
2. The allegation against the petitioner/accused is
that the petitioner, who was working as the Deputy
Commissioner of Excise, being a public servant, while
working as the Excise Circle Inspector, the Assistant
Commissioner and the Deputy Commissioner in the Excise
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Department at various offices during the period between
1.1.1981 and 31.1.1995 and his wife Smt.Chandralekha
had been in possession of pecuniary resources and other
properties worth of Rs.4,14,127/- which is
disproportionate to his known sources of income for
which he could not satisfactorily account for and thereby
committed the offences punishable under the above
provisions of the Act. The above Crl.M.C. is filed when
Annexure A2 First Information Report was filed before
the court below. According to the petitioner, no offence
as alleged in the F.I.R. is disclosed against the petitioner
even if the entire allegations are admitted as true. In
support of the above contention, the petitioner submits
that as per Annexure A1 report dated 4.6.1993, the
Director of Vigilance (Investigation) had already
recommended that there is no scope for any criminal
prosecution and as disclosed by Annexure A1, the
Director has already considered the entire facts and
circumstances involved in the case and the materials
available on record and he came to an independent
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conclusion and according to him, departmental
proceedings are sufficient for the ends of justice. Thus,
according to the petitioner, there is already a report by a
competent authority in favour of the petitioner/accused
and the subsequent lodging of F.I.R. as well as the
subsequent investigation were done overlooking
Annexure A1 report. It is also contended in the
Crl.M.C. that there is inordinate delay which is not at all
explained and no reason is forthcoming to excuse the
culpable delay and in the light of the settled proposition
of law regarding the delay on the part of the
prosecution, the petitioner contended that the present
proceedings of the court below will amount to abuse of
process of court and based upon the above ground, it is
prayed that Annexure-A5 final report and the case
instituted thereon, pending before the court below may
be quashed.
3. I have heard Mr.Elvin Peter, the learned
counsel appearing for the petitioner as well as
Sri.P.N.Sukumaran, the learned Public Prosecutor.
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4. The learned counsel for the petitioner
submits that the whole proceedings were initiated on the
basis of an anonymous letter received by the
Government and as per letter dated
29.6.1988, an enquiry was ordered. From Annexure A1
report, it can be seen that the enquiry was initially
ordered by the Government rightly as on 29.6.1988. The
learned counsel further submits that as disclosed by
Annexure A1 report of the Director of Vigilance
(Investigation), there are several enquiries before his
opinion as per Annexure A1 report. From the list of
enclosures shown in Annexure A1, it can be seen that
there is a preliminary enquiry report by the Deputy
Superintendent of Police, Vigilance Department,
Thiruvananthapuram and the forwarding endorsement
of the Superintendent of Police, Vigilance Department,
Special Cell, Thiruvananthapuram. It is also seen that
the opinion of the Legal Adviser to Vigilance
Department, Thiruvananthapuram was also considered
while making Annexure A1 report. It is also disclosed
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that there was a revised preliminary enquiry report of
the Deputy Superintendent of Police, Vigilance
Department, Special Cell, Thiruvananthapuram dated
12.11.1992. Besides that, there was another forwarding
endorsement of the Superintendent of Police, Vigilance
Department, Special Cell, Thiruvananthapuram dated
13.11.1992. Apart from the legal opinion mentioned
above, there is another remark of the Legal Adviser
dated 10.12.1992. Thus, according to the counsel for
the petitioner, several enquiries were conducted and all
the legal opinions furnished by the legal advisers are
also against the prosecution. Thus, according to the
counsel for the petitioner, the Director of Vigilance
(Investigation) who is the highest superior officer of the
Department had already considered the entire facts and
materials on record and instead of giving an opinion for
prosecution, what he had suggested is that barring
departmental action for entering into financial
transaction with his subordinates and relatives in
violation of Rule 16(1)(a) and (c) of the Kerala
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Government Servants (Conduct) Rules, 1960, further
action shall be dropped in the matter. According to
counsel for the petitioner, that being the position, there
was no further action or information from the
Department and all of a sudden, the petitioner came to
know that Annexure A2 F.I.R. was prepared and
presented on 30.1.1995 at about 10.30 am.
5. According to counsel for the petitioner,
initially an enquiry was conducted by Mr.A.Surendran
who was the Superintendent of Police, Vigilance and
Anti corruption Bureau who is CW 115. After the
registration of the F.I.R., the same was again forwarded
to the said Officer for investigation. Counsel submits
that the said Officer is very much inimical towards the
petitioner and so he was very much prejudiced by the
enquiry conducted by the said Officer. It is further
submitted that the above belief of the petitioner is not
unfounded since the Director has already found fault
with the enquiry conducted and the report prepared by
the said Officer. It was in the above circumstances the
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petitioner approached this Court by filing the Crl.M.C.
on 27.3.2003. Counsel submits that the proceedings
were started as early as on 29.6.1988 and the matter
was being dragged unnecessarily. In the mean while,
the Government issued Annexure A4 order by which the
concerned authorities were directed to expedite the
enquiry and guidelines were formulated through the
above Government Order. Counsel submits that in view
of clause (12) of Annexure A4 Government Order,
investigation in the present case ought to have been
completed within 12 months, but no investigation was
conducted and concluded in accordance with Annexure
A4 Government Order.
6. Counsel for the petitioner points out that the
date of retirement of the petitioner was on 31.3.2006.
Though the alleged enquiry and investigation were
started much earlier, no final report could be filed in
time especially, even though Annexure A4 guidelines
are in force. But on the eve of the retirement of the
petitioner, all of a sudden, a final report was filed on
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30.3.2006 whereas the date of retirement of the
petitioner was 31.3.2006. So, the mala fide intention
and extraneous consideration are manifest from the
above conduct.
7. On realising the fact that a final report was
filed before the court below, the petitioner by filing
Crl.M.A.No. 3390 of 2006 sought permission of this
Court to amend the Crl.M.C. after producing the final
report as Annexure A5 and by order dated 25.8.2006,
this Court had allowed the amendment petition. As per
Annexure A5 final report, the allegation against the
petitioner has been modified from Annexure A2 F.I.R.
and the present allegation as per Annexure A5 report is
to the effect that the petitioner during the period
between 1.1.1981 to 31.1.1995 and his wife
Smt.Chandralekha have been in possession of pecuniary
resources and other properties worth of Rs.4,14,127/-
which is disproportionate to his known sources of
income for which he could not satisfactorily account for
and thereby committed the said offences. Whereas, as
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per Annexure A2 F.I.R., the check period was between
1.1.1981 and 31.12.1988 and the allegation is that the
petitioner/accused, while working as public servant, has
been in possession of movable and immovable assets and
pecuniary resources to the tune of Rs.1,74,024/- during
the period from 1.1.1981 to 3.12.1988 which is prima
facie disproportionate to his known source of income
and which has been worked out to be worth
Rs.56,585.11 (24.62%) in excess of his total income for
the above period. Learned counsel submits that due to
the inimical approach of certain officers of the
Department, especially CW 115 though the check period
in the F.I.R. is between 1.1.1981 and 31.12.1988,
because of their lapse to conduct the investigation
properly and effectively and to show a large amount at
the time of filing Annexure A5 final report, the check
period was enhanced up to 31.1.1995. As part of the
said wicked plan, though the amount which was alleged
to be in possession of the petitioner and
disproportionate to his income, was fixed as
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Rs.56,585.11 in Annexure A2 FIR, it was re-fixed as
Rs.4,14,127/- in Annexure A5 Final Report. The
enlargement of check period and enhancement of the
amount are made with a view to circumvent the
guidelines contained in Annexure A4 Government Order.
On various accounts, the counsel for the petitioner
challenges the very assertion and the allegation
contained in Annexure A5 report. In order to
substantiate the contention raised by the petitioner and
the argument advanced by learned counsel for the
petitioner, they have very much placed reliance on the
document of the prosecution itself namely, Annexure A2
FIR and also Annexure A5 Final Report.
8. According to counsel for the petitioner, in the
statement ‘A’ attached to Annexure A5, the assets of the
petitioner and his family as on 1.1.1981 are shown as
Rs.4857/- + 40 Sovereigns and 179.500 gm. silver
ornaments. In the statement ‘A’, the first item is shown
as bank balance and the figure is only Rs.472.50/-. It is
an admitted fact of the prosecution that the petitioner
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joined in the service as an Excise Inspector during the
month of April, 1977 and subsequently, he was directly
recruited as Circle Inspector of Excise with effect from
December, 1977. Those salaries have not been shown in
any of the items in Statement ‘A’ attached to Annexure
A5 and, had it been shown correctly, no allegation
would lie. According to counsel for the petitioner, the
above aspect itself is sufficient to shake the prosecution
case. It is also submitted by the counsel that the total
assets of the petitioner as on 31.1.1995 is 3,81,384/-,
which is considered as the entire salary drawn by the
petitioner from the initial stage and this amount is
different from that of in Annexure A5 Final Report. In
item No.2 in Statement-B of Annexure A5 Final Report,
the cost of construction of house is shown as
Rs.3,30,000/- whereas the cost of construction of house
in Annexure A2 is shown as Rs.1,36,322/-. The
prosecution has no case that the petitioner had
constructed two houses or there was any renovation
work on the house already constructed as shown in the
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F.I.R. Hence the cost of construction now shown has no
basis and is contrary to their own document Annexure
A2. It is also pointed out by counsel for the petitioner
that in Statement B as item No.4, an amount of
Rs.1,00,000/- is shown as the price of the Maruthy 800.
Annexure A6 is an order of the Government by which car
loan was sanctioned by the Government. Counsel for
the petitioner submits that from Annexure A1 report, it
is discernible that the cost of house construction was
shown as Rs.1,36,322/- on the basis of the inspection
and assessment conducted by the P.W.D.Executive
Engineer, but when the final report was filed, the same
is shown as Rs.3,30,000/- and that is without any
valuation conducted by any expert. So, according to
counsel for the petitioner, the documents relied on by
the prosecution itself are contradictory in nature and the
allegations are not sufficient to constitute the offences
levelled against the petitioner. Therefore, according to
counsel, the entire proceedings initiated and pending
against the petitioner are liable to be quashed.
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9. It is also pointed out by counsel for the
petitioner that there is inordinate delay on the part of
the prosecution in conducting the enquiry and further
proceedings from 29.6.1988 till the finalisation of the
Annexure A5 Final Report. After the filing of the final
report, so far trial has not commenced. It is also pointed
out by counsel for the petitioner that the petitioner had
already retired from service on 31.3.2006 and so far, his
pensionary benefits are not given due to the pendency of
the criminal case. So, according to counsel, the entire
proceedings, even though the trial is not over, are
pending for the last 20 years and therefore, the
proceedings now pending before the court below are
liable to be quashed. In support of the fervent plea for
quashing of the proceedings, the petitioner very much
placed reliance on Abdul Rehman Antulay and others
v. R.S.Nayak and another (1992(1) SCC 225). My
attention is invited to sub-paras 5 and 9 in para 86 of the
above decision, which reads as follows:-
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“86. In view of the above discussion,
the following propositions emerge, meant to
serve as guidelines. We must forewarn that
these propositions are not exhaustive. It is
difficult to foresee all situation. Nor is it
possible to lay down any hard and fast rules
These propositions are:-
(1) xxx xxx xxx xxx
(2) xxx xxx xxx xxx
(3) xxx xxx xxx xxx
(4) xxx xxx xxx xxx
(5) While determining whether undue
delay has occurred (resulting in
violation of Right to Speedy Trial) one
must have regard to all the attendant
circumstances, including nature of
offence, number of accused and
witnesses, the workload of the court
concerned, prevailing local conditions
and so on— what is called, the
sustemic delays. It is true that it is
the obligation of the State to ensure
a speedy trial and State includes
judiciary as well, but a realistic and
practical approach should be adopted
in such matters instead of a pedantic
one.
(6) xxx xxx xxx xx xx
(7) xxx xxx xxx xx xx
(8) xxx xxx xxx xx xx
(9) Ordinarily speaking, where the
court comes to the conclusion that
right to speedy trial of an accused has
been infringed the charges or the
conviction as the case may be, shall be
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quashed. But this is not the only
course open. The nature of the
offence and other circumstances in a
given case may be such that quashing
of proceedings may not be in the
interest of justice. In such a case, it
is open to the court to make such
other appropriate order– including an
order to conclude the trial within a
fixed time where the trial is not
concluded or educing the sentence
where the trial has concluded – as may
be deemed just and equitable in the
circumstances of the case.”
On the basis of the above passage, counsel for the
petitioner submits that the dictum laid down in the
above decision is squarely applicable to the facts and
circumstances involved in the case in hand.
10. The counsel further submitted that on an
examination of the entire facts and circumstances and
shabby nature of the allegation, the proceedings
pending against the petitioner are liable to be quashed.
It is also not disputed that the proceedings are pending
for the last twenty years. In support of his contention to
quash the proceedings on the ground of delay, the
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petitioner has cited another decision of the Apex Court
reported in Ramanand Chaudhary v. State of Bihar
and others (AIR 1994 SC 948).
11. Counsel for the petitioner also invited my
attention to the two judgments of this Court namely,
Crl.M.C.No.9257 of 2002 dated 6.2.2003 and
Crl.M.C.No.5425 of 2002 dated 14.8.2002. In those two
cases also, the proceedings were pending for quite a
long time and considering the long delay involved in
those cases, this Court has quashed the entire
proceedings against the petitioner in those cases.
Counsel for the petitioner submits that the facts and
circumstances involved in the present case are more or
less same as that of the above two cases and therefore, it
is submitted that the petitioner is entitled to get a
similar treatment.
12. Per contra, Mr.P.N.Sukumaran, the learned
Public Prosecutor submits that Annexure AI report has
no relevance and it cannot be looked into since the
Government was not satisfied with Annexure A1 report
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and the Government has already ordered for an enquiry
and based upon such order, the F.I.R. was subsequently
registered and the investigation was subsequently
undertaken by the department and now a final report
was filed. Though the above contention has some force,
but considering the factual situation contained in the
present case and the materials turned out from the
report, it appears that the nature of allegations against
the petitioner seem to be very shabby and the
documents relied on by the prosecution, especially
Annexure A2 F.I.R. and the documents attached to
Annexure A5 Final Report are sufficient to show the
shabby and contradictory nature of the allegations. It
also shows that the allegations contained in the F.I.R. as
well as in the final report are not sufficient to constitute
the offences against the petitioner. It is submitted by
the Public Prosecutor that on the basis of the decision,
even though there is an independent and separate
opinion by the competent authority, there is no bar on
the investigating agency to conduct an investigation and
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to file a final report and thus, according to the learned
Public Prosecutor, Annexure A1 report of the Director
has no bearing or relevance to the present case since
after Annexure A1 report, the Government has ordered
to conduct an enquiry on the basis of which the F.I.R.
was registered and the further investigation was
conducted.
13. I have perused Annexure A2 F.I.R. as well as
Annexure A5 Final report in detail and also the
documents attached therein. The argument of the
learned counsel for the petitioner furnishing some
explanation to cover up the amount which is alleged to
have been shown as disproportionate income is not
acceptable to me. Certainly these are all facts to be
ascertained through evidence and not in a proceedings
under Section 482 of the Code of Criminal Procedure.
According to counsel, his asset as on 31.1.1995 will be
only Rs.3,81,384/- and the prosecution had deliberately
omitted to take into account the salary drawn by him
from 1977 onwards while he was working as Excise
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Inspector as well as Circle Inspector of Police. It is true
that neither in the F.I.R. nor in the final report, the
prosecution has considered the above income of the
petitioner. Similarly as noted above, the cost of
construction of the house is shown as Rs.1,36,322/- as
per Annexure A2 F.I.R. In Annexure A1 report, the
Director has observed that there was a reduction of
Rs.8678/- occurred on a detailed valuation of the house
by the Executive Engineer, P.W.D., Quilon which was
not done earlier. But, in Annexure A2 F.I.R. also, the
cost of construction of house was shown as
Rs.1,36,322/-. So the above amount shown in Annexure
A2 F.I.R. is not tallying with what stated by the Director
in Annexure A1 report. But, In the very same time, in
Annexure A5 Final Report, as seen in statement B, the
cost of construction of the house is shown as
Rs.3,30,000/-. Absolutely, there is no allegation that the
petitioner had constructed two houses. In the absence of
such allegation or any explanation, the above figure
cannot be considered as true. Hence on an overall
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consideration, it can be seen that figures shown in the
statement attached to annexure A5 Final Report are
incorrect and baseless and if those figures are excluded,
there will be nothing as disproportionate income and
consequently the prosecution case rendered as
unbelievable and untenable.
14. It is seen from Statement B, the assets of the
petitioner and family as on 31.1.1995. The price of the
Maruthy 800 of the petitioner is shown as Rs.1,00,000/-
as item No.4 in Statement B. The above amount has to
be reduced from the asset since that amount was
obtained as loan from the Government as evidenced by
Annexure A6. It can also be seen from statement B that
an amount of Rs.54,142/- which is shown as the value of
clothings and Rs.62,935/- shown as value of Electronic
and Electrical Gadgets and according to the counsel,
these are not correct figures. Even if these figures are
considered as correct, it can be seen that the
prosecution allegation rests on certain quantity of
clothings and electrical items. Thus, according to counsel
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for the petitioner, there is no excess asset for the
petitioner so as to attract the penal provisions charged
against the petitioner. In the light of the above
discussion, the figures, which are relied on by the
Prosecution, are mutually contradictory, unbelievable and
incorrect, even according to the documents. Thus, it is
to be held that the allegations are very shabby and there
is no meaning in directing the petitioner to undergo the
ordeal of trial, based on such shabby allegations and also
the allegations which are not sufficient to constitute the
offence.
15. It is also an undisputed fact that the
proceedings against the petitioner were initiated much
early, as on 29.6.1988 and thereafter, about 20 years are
over. Even now the trial has not started so far. There is
no cogent explanation as to why the enquiry and
investigation are delayed. Of course, the Investigating
Agency can take their own time to complete the
proceedings. In the decision reported in the Abdul
Rehman’s case (cited supra), the Apex Court had held
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that ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has
been infringed, the charges or the conviction, as the
case may be, shall be quashed. In the above decision, it
is further held that this is not the only course open and
the nature of the offence and other circumstances in a
given case may be such that quashing of proceedings
may not be in the interest of justice. But, in the present
case, I am of the view that considering the shabby nature
of the allegations and the long pendency of the case, the
proceedings against the petitioner are liable to be
quashed.
16. After Abdul Rehman’s case (cited supra), the
Apex Court was pleased to quash a prosecution in
Ramanand Chaudhary’s case (cited supra) in which the
prosecution against the accused was pending for more
than 13 years, on the basis of the complaint before the
Police that the appellant had demanded Rs.200/- from
him as bribe for getting his work done in the Revenue
Department. As a consequence, a raid was conducted on
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March 30, 1979 and thereafter, no further action was
taken by the Police for six years and it was only in
January 28, 1985 that the opinion of the Public Prosecutor
was sought by the Revenue Commissioner to enable him
to consider the question of grant of sanction for the
prosecution of the appellant therein. The Public
Prosecutor came into a conclusion that the case in hand
was not a fit case to accord sanction for prosecution. The
Revenue Commissioner also endorsed the opinion of the
Public Prosecutor. Subsequently, the Deputy Inspector
General of Police (Vigilance) reopened the matter and
requested the Revenue Commissioner to reconsider the
question of the prosecution of the appellant. The
Commissioner again asked for the opinion of the Public
Prosecutor who reiterated his earlier opinion and
recommended for departmental action instead of criminal
proceedings. But, the Revenue Commissioner granted
sanction to prosecute the appellant therein, and
accordingly, the case was filed before the Special Judge
(Vigilance), South Bihar, Patna who took cognizance of
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the case on November 21, 1990. The appellant therein
invoked the jurisdiction of the High Court of Patna under
Section 482 for quashing the criminal proceedings and
the same was dismissed in limine. By the judgment, the
Apex Court held in paragraph 5 of the judgment as
follows:-
“5. It is not necessary to go into the legal
points raised by Mr.Jain as we are inclined to quash the
prosecution against the appellant in the peculiar facts
and circumstances of this case. After the raid, no
action was taken by the prosecution for six years. The
Public Prosecutor consistently opined that no criminal
case was made out against the appellant. The
Commissioner on independent consideration refused to
grant the sanction but later on at the asking of the
D.I.G.(Vigilance), he changed his view. The prosecution
against the appellant is pending for over a period of
thirteen years and it would be travesty of justice to
permit the prosecution at this stage which would mean
that the appellant would suffer the trial/appeal for
another decade. In view of the facts and
circumstances of the case, we quash the prosecution
pending against the appellant and also the proceedings
before the Special Judge (Vigilance South Bihar), Patna
who took cognizance of the case on November 21,
1990.”
The facts and circumstances involved in the case in
hand, except regarding the quantity of amount and the
mode of amazement of money, are similar to that of the
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case reported in the above decision of the Apex Court.
Herein, the Director of Vigilance by Annexure A1 report
refused to accord sanction for prosecution, but
recommended for departmental action. The said opinion
was formed after the perusal of the entire materials on
record including the opinion of the Vigilance Prosecutor.
Therefore, according to me, in the light of the above
decision of the Apex Court, the proceedings against the
petitioner are liable to be quashed.
17. This Court, in a similar situation, had quashed
the order of the prosecution in two cases mentioned
above considering the inordinate delay in the enquiry,
investigation and trial.
18. As stated earlier, the petitioner had already
retired from service as on 31.3.2006. Because of the
pendency of the case, his pensionary benefits are not
given so far. Considering the shabby nature of the
allegations and the fact that the matter is pending for
the last 20 years, which will amount to the violation of
right to speedy trial as conferred under Article 21 of
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the Constitution of India, I am of the opinion that this is
a fit case where this Court has to exercise the
jurisdiction of this Court under Section 482 of the
Cr.P.C. in favour of the petitioner to secure the ends of
justice and I do so accordingly.
19. In the result, the Crl.M.C. is allowed and
Annexure A5 Final Report and all proceedings in
C.C.No.6 of 2006 on the file of the Court of the
Enquiry Commissioner and Special Judge,
Thiruvananthapuram are quashed.
V.K.Mohanan,
Judge
Mbs/
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V.K.MOHANAN, J.
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Crl.M.C.NO. 2641 OF 2003
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O R D E R
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DATED: -2-2008
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