High Court Kerala High Court

State Of Kerala vs Dr.A.Rajan on 3 April, 2009

Kerala High Court
State Of Kerala vs Dr.A.Rajan on 3 April, 2009
       

  

  

 
 
  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.
       -----------------------------------------------------
                CRL.M.C.No.152 OF 2006
     -----------------------------------------------------
     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

CRL.M.C.No.152/06 -2-

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

CRL.M.C.No.152/06 -3-

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.

CRL.M.C.No.152/06 -4-

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

CRL.M.C.No.152/06 -5-

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

CRL.M.C.No.152/06 -6-

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

CRL.M.C.No.152/06 -7-

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