IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2892 of 2008()
1. R. KARUNAKARAN ,S/O.RAMAN,AGED 68 YEARS
... Petitioner
2. M.SOMAN, AGED 61 YEARS
3. MATHEW CHACKO, S/O.MATHEW, AGED 69 YEARS
4. V.T.DEVASIA, S/O.THOMAS
5. K.PANKAJAKSHAN, S/O.KESAVAN,AGED 65
6. A.UNNIKRISHNAN NAIR, AGED 65 YEARS
7. T.K.GOPI, S/O.KUNJAN, AGED 58 YEARS
8. M.G.MATHEW, S/O. GEEVARGESE,
9. A.V.RAVEENDRAN NAIR, AGED 64 YEARS
Vs
1. THE DEPUTY SUPERINTENDENT OF POLICE
... Respondent
2. THE DISTRICT COLLECTOR
3. STATE OF KERALA
For Petitioner :SRI.K.V.SOHAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :24/02/2010
O R D E R
P. BHAVADASAN, J.
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Crl.M.C. No. 2892 of 2008
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Dated this the 24th day of February, 2010.
ORDER
in this petition filed under Section 482 of the
Code of Criminal Procedure, the petitioners seek to have
all further proceedings pursuant to Annexures A8 to A16
quashed.
2. The petitioners were working in Village
offices of various Panchayats in Alappuzha District during
1994 July. They had engaged in rescue operations in an
unprecedented flood that occurred in that year. The
second respondent issued orders to take immediate
steps to ameliorate the agonies of the victims. The copy
of the order is produced as Annexure 1. The Tahsildar,
as per the orders of the District Collector sought to
implement the directions through the Village Officers
including the petitioners. About 2000 families had to be
evacuated and they had to be provided shelters and
food had also to be made available to them. All this
Crl.M.C.2892/2008. 2
were implemented under the supervision of the District
Collector as well as the Tahsildar. Copy of the report
submitted to the District Collector is produced as Annexure
2. It seems that later complaints were raised from several
quarters regarding the misappropriation of the funds allotted
for relief operation and misutilization. Papers flashed the
news. It appears that a vigilance case as Case No.1 of 1998
under Sections 468, 471 and 477A read with Section 120 IPC
and Section 13(1)(c) and (d) of the Prevention of Corruption
Act was registered by the Deputy Superintendent of Police.
The copy of the FIR is produced as Annexure 3.
3. Petitioners point out that prior to the
registration of the FIR, one P.N. Venugopal of Alappuzha had
filed a writ petition as O.P.10393 of 1996 complaining about
the illegalities and irregularities committed in the
distribution of relief etc to the flood affected victims. This
court by Annexure 4 judgment directed the State to conduct
an enquiry into the matter and to consider whether a
vigilance enquiry is necessary. Petitioners point out that a
Crl.M.C.2892/2008. 3
detail enquiry was conducted by the RDO, Alappuzha as per
the direction issued by the District Collector and Annexure 5
report was filed. In the said report, it is observed as follows:
“After careful consideration of the
evidences produced before me, I find that the
allegations made out in the Desabhimani Daily in
the article published on 23.8.1995, 24.8.1995 and
25.8.1995 and in the O.P.10393/96 filed before
the Hon’ble High Court have not been proved. I
do not consider it necessary to have a further
detailed departmental or vigilance enquiry in the
matter. ”
The first respondent on receipt of the relevant report has
issued Annexure 6 communication. In the meanwhile, the
Vigilance Department went on with its enquiry and as a
result of which, the FIR was registered. The Vigilance
Department without giving heed to the decision of the
Government to drop the proceedings went on with the
investigation and submitted a final report, which is marked
as Annexure 7. Charge sheet was framed and the offences
were taken cognizance of by the Enquiry Commissioner and
Crl.M.C.2892/2008. 4
special Judge, Thiruvananthapuram and a single charge has
been framed against petitioners 1 to 9, which are marked as
Annexures 8 to 16.
4. The complaint of the petitioners is that the
enquiry and investigation by the Vigilance department in the
light of the fact that the Government has decided to drop
the proceedings is without sanction and non-est. They
would point out that it was the Government, who had to
decide whether vigilance enquiry is necessary. A detailed
enquiry was conducted and it was thereafter the
Government had come to the conclusion that it was
unnecessary to have the vigilance enquiry. The Vigilance
Department, which is the limb of the Government has no
right thereafter to go on with the investigation and enquiry
and they should have dropped the proceedings.
Consequently, it is pointed out that the filing of the final
report and consequent taking of cognizance are all bad in
law.
Crl.M.C.2892/2008. 5
5. Per contra, learned counsel appearing for the
first respondent supported the vigilance enquiry. It was
pointed out by him that departmental enquiry and vigilance
enquiry are two different matters and merely because the
departmental proceedings are dropped, it does not mean
the vigilance enquiry has to come to an end. There is no
communication from the State to the Vigilance Department
to drop the proceedings. It was also pointed out that once
the Vigilance department has taken a case on file, they are
bound to investigate the same and proceed in accordance
with law. None can interdict them in the course of action.
That was precisely what has been done in the present case.
It is also contended that it is not possible to accept the
findings in departmental enquiry, because in the vigilance
enquiry it was found to be otherwise. Therefore, it is
contended that no grounds are made out to interfere with
Annexures A8 to A16.
Crl.M.C.2892/2008. 6
6. It does not appear that the contentions now
taken by the petitioners before this court have been urged
before the court below. Annexures A8 to A16 are charges
framed against the petitioners. Before going further, one
aspect needs to be noticed. As far as the seventh petitioner
is concerned, he is still in service and it is pointed out that it
was the Commissioner of Revenue, who is the authority to
grant sanction and the sanction given by the District
Collector is non-est. This point also does not seem to have
been urged before the court below. The present case of the
petitioners is that once it was found by the Government that
the enquiry was unnecessary, it was not within the powers of
the Vigilance Department to go on with the investigation. It
is contended that the Vigilance Department has no
overriding powers of the State and it is bound by the
decisions taken by the State.
7. As already noticed, none of these grounds seen
to have been urged before the court below. The court below
had no occasion to consider these aspects. There may be
Crl.M.C.2892/2008. 7
some substance in the contention of the petitioners that
since the Government had decided that there is no need to
go on with the vigilance enquiry, the enquiry by the
Vigilance Department ought not to have continued. But
powers and duties of the Vigilance Department vis a vis the
State is a matter for consideration. How far the decision of
the State Government to drop further proceedings against
the petitioners in view of the detailed report submitted by
the District Collector and also not to embark upon the
vigilance enquiry can bind the Vigilance Department, which
has already set the law in motion is a matter for
determination. It is true that the charge has been framed.
But these are certain fundamental aspects, which affect the
case. So also the question as to whether the sanction given
in relation to the seventh petitioner is valid or not can be
raised at any time. But it is a question regarding the
jurisdiction of the authority which granted sanction to take
cognizance of the offence against that accused. The
petitioners also have a case that the filing of final report was
Crl.M.C.2892/2008. 8
deliberately delayed to avoid seeking sanction under Section
19 of the Prevention of Corruption Act. The acts of Vigilance
Department therefore lack credence.
8. It is therefore thought fit and proper that the
whole issue be determined by the court which considers the
matter, since none of the grounds had been urged before
that court.
Therefore, this petition is disposed of giving liberty
to the petitioners to agitate all their contentions before the
court below in appropriate proceedings. If so agitated, the
court below shall determine the issues in accordance with
law and in the light of what has been stated above.
P. BHAVADASAN,
JUDGE
sb.