Kerala High Court
Balaraj B.K vs State Of Kerala on 15 January, 2021
Crl.MC.No.8765 OF 2018(E) 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
Crl.MC.No.8765 OF 2018(E)
AGAINST THE JUDGMENT IN CC 11/2017 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -I,KOYILANDY
PETITIONER/ACCUSED NO.2:
BALARAJ B.K, AGED 50 YEARS
S/O.LATE B.K.NARAYANA, JOINT DIRECTOR (ADMN),
URBAN AFFAIRS DIRECTORATE, SWARAJ BHAVAN,
NANTHENCODE, KOWDIAR P.O.,
THIRUVANANTHAPURAM - 695 003.
BY ADVS.
SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
KUM.LAYA MARY JOSEPH
RESPONDENTS/STATE & COMPLAINANTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 ASSISTANT EXECUTIVE ENGINEER,
K.Y.I.P.SUB DIVISION, KAKKODI,
CALICUT - 673 611.
3 ASSISTANT ENGINEER,
KUTTIYADI IRRIGATION PROJECT,
CANCAL SECTION NO.1, KAKKODI,
CALICUT - 673 611.
SRI.K.B.UDAYAKUMAR, SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.8765 OF 2018(E) 2
O R D E R
Dated this the 15th day of January 2021
Petitioner is the 2nd accused in C.C.No.11/2017 on the file
of the Judicial First Class Magistrate Court, Koyilandy.
2. Crime No.132/2015 was registered by the Elathur
Police based on Annexures A1 and A2 complaint from the
Assistant Executive Engineer and Assistant Engineer of
Kuttiady Irrigation Project. After investigation, the police filed
a refer report as evident by Annexure A3 treating it as a
"mistake of fact". When Annexure A3 report was submitted
before the learned Magistrate, the learned Magistrate
conducted an enquiry under Section 202(1) Cr.P.C and
examined PW1 to PW3, who are the officials of the Irrigation
Department. Annexures A4, A5 and A6 are the statements
recorded by the learned Magistrate under Section 202(1)
Cr.P.C. Based on these statements, the learned Magistrate took
cognizance of the offence under Sections 427 and 447 IPC and
issued summons to the petitioner. The petitioner was the
Secretary of Kozhikode Corporation at the relevant time. He
filed this petition to quash the proceedings.
3. Heard the learned counsel for the petitioner and
the Public Prosecutor.
4. The counsel for the petitioner submitted that, as
per the decision taken by the Kozhikode Corporation and
based on Annexure A7 memo, a road work was sanctioned by
the Corporation. According to the counsel, the work was
done based on the recommendation of Grama Sabha which
was ratified by the Council of the Corporation. The work is
tarring the existing road adjacent to Kanoli canal. According
to the counsel, there is absolutely no case to the prosecution
that the petitioner or others claimed title over the property.
In such circumstances, the offences under Sections 447 and
427 IPC is not made out. The counsel also submitted that
there is a bar in taking cognizance of the offence as per
Section 548 of the Kerala Municipality Act, 1994.
5. The Public Prosecutor submitted that the police
after investigation referred the case and Annexure A3 is the
refer report.
6. After hearing both sides, I think there is some
force in the argument of the learned counsel for the
petitioner. Admittedly, it is a work done based on the
decision of the Kozhikode Corporation Council. Annexure A7
is the memo issued by the corporation Engineer accepting
the tender from the contractor for the work. Section 548 of
the Municipality Act read like this:
"548. Sanction for prosecution of Chairperson,
Secretary or Councillor.-- Where the Chairperson,
any Councillor or the Secretary of a Municipality is
accused of any offence alleged to have been
committed by him while acting or purporting to act
in the discharge of his official duty, no court shall
take cognizance of such offence except with the
previous sanction of the Government."
7. Admittedly, in this case, there is no sanction as
per Section 548 of the Municipality Act. In the light of
Section 548, no court shall take cognizance of any offence
except with previous sanction of the Government if the
offence alleged to have been committed by him while acting
or purporting to act in discharge of his official duty.
Admittedly, the petitioner was the Secretary of the
Kozhikode Corporation during the relevant time. He was
acting in discharge of official duty at the relevant time. In
such situation, according to me, sanction is mandatory. It is
a case in which the learned Magistrate took cognizance
without sanction as per Section 548 of the Municipality Act.
According to me, taking cognizance is illegal.
Therefore, this Crl.M.C is allowed. All further
proceedings against the petitioner in C.C.No.11/2017 on the
file of the Judicial First Class Magistrate Court, Koyilandy
are quashed.
Sd/-
P.V.KUNHIKRISHNAN
ab JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED
26/02/2015 SUBMITTED BY THE 2ND
RESPONDENT.
ANNEXURE A2 CERTIFIED COPY OF THE COMPLAINT DATED
27/02/2015 SUBMITTED BY 3RD
RESPONDENT.
ANNEXURE A3 CERTIFIED COPY OF THE REFER REPORT
DATED 19/10/2015 FILED BEFORE THE
HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, KOYILANDY.
ANNEXURE A4 CERTIFIED COPY OF THE SWORN STATEMENT
OF PW1 DATED 10/08/2016.
ANNEXURE A5 CERTIFIED COPY OF THE SWORN STATEMENT
OF PW2 DATED 19/09/2016.
ANNEXURE A6 CERTIFIED COPY OF THE SWORN STATEMENT
OF PW3 DATED 19/09/2016.
ANNEXURE A7 TRUE COPY OF THE MEMO DATED
11/02/2015 ISSUED BY THE CORPORATION
ENGINEER IN FAVOUR OF 1ST ACCUSED.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
P.A TO JUDGE
ab
