Saji Varghese vs State Of Kerala
2021 Latest Caselaw 1789 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                     Crl.MC.No.7953 OF 2018(D)

 AGAINST THE ORDER/JUDGMENT IN CMP 716/2016 OF COURT OF ENQUIRY
         COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY

              FIR IN CRIME NO.2/2017 OF VACB, KANNUR,

PETITIONER/ACCUSED NO.1:

              SAJI VARGHESE, AGED 47 YEARS
              S/O VARGHESE, CHIRATUVELIL (H), MANATHANA P.O,
              PERAVOOR, IRITTY, KANNUR
              BY ADV. SRI.V.JOHN MANI

RESPONDENTS/COMPLAINANT AND STATE:

      1       STATE OF KERALA,REP BY PUBLIC PRESECUTOR, HIGH COURT
              OF KERALA, ERNAKULAM
      2       BALAKRISHNAN,
              S/O.NARAYANAN, THONAKKAR THAKIDIYEL, VELLAD P.O.,
              TALIPARAMBU TALUK, KANNUR- 670 141.
      3       DISTRICT COLLECTOR AND CHAIRMAN
              DISTRICT TOURISM PROMOTION COUNCIL,
              KANNUR- 670001.
      4       SECRETARY DISTRICT TOURISM PROMOTION COUNCIL,
              KANNUR- 670 001.
      5       DEPUTY DIRECTOR,
              DEPARTMENT OF TOURISM, DISTRICT TOURISM OFFICE,
              KANNUR- 670 001.
      6       PROJECT ENGINEER,
              DEPARTMENT OF TOURISM, DISTRICT TOURISM OFFICE,
              KANNUR- 670 001.
      7       DIRECTOR, DEPARTMENT OF TOURISM PARK VIEW,
              THIRUVANANTHAPURAM- 695 011.

              R1 BY GOVERNMENT PLEADER

OTHER PRESENT:

              SRI A RAJESH SPL PP VACB

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD         ON
14.01.2021, THE COURT ON 18.01.2021 PASSED THE FOLLOWING:
 Crl.M.C.No.7953/2018
                                 2




                   R.NARAYANA PISHARADI, J
                   ************************
                     Crl.M.C.No.7953 of 2018
            ---------------------------------------------
             Dated this the 18th day of January, 2021

                              ORDER

The petitioner was the Secretary of the District Tourism

Promotion Council, Kannur.

2. One Balakrishnan filed a complaint against the

petitioner and two other persons in the Court of the Enquiry

Commissioner and Special Judge, Thalassery alleging that they

committed the offence punishable under Section 13(1)(b) of the

Prevention of Corruption Act, 1988. The Special Court obtained a

quick verification report from the Vigilance and Anti-Corruption

Bureau (VACB). As per Anneuxre-C order, the Special Court found

that the facts alleged in the complaint disclosed commission of

cognizable offences. Therefore, the complaint was forwarded to

the Dy.S.P, VACB, Kannur for investigation under Section 156(3)

of the Code of Criminal Procedure, 1973 (for short 'the Code'). Crl.M.C.No.7953/2018

Pursuant to Anneuxre-C order, Anneuxre-D FIR was registered

against the petitioner and two other persons under Section 13(1)

(d) read with Section 13(2) of the Prevention of Corruption Act

and under Section 120B of IPC. This petition under Section 482

of the Code is filed by the petitioner for quashing Annexure-C

order and Annexure-D FIR.

3. Heard the learned counsel for the petitioner and also

the learned Public Prosecutor.

4. It is not necessary here to narrate the allegations

contained in the complaint filed against the petitioner or in

Anneuxre-D FIR. Suffice it to state that the allegation against the

petitioner is that he caused huge financial loss to the

Government and gained pecuniary benefits to the accused

persons in the execution of the works relating to

Palakkayamthattu Tourism Project.

5. When the case came up for hearing before this Court on

14.1.2021, the learned Public Prosecutor submitted that the

VACB has completed the investigation of the case and the

competent authority has granted sanction to prosecute the Crl.M.C.No.7953/2018

petitioner. Learned Public Prosecutor has submitted that there

are sufficient materials collected by the investigating officer to

prove that the petitioner has committed the offences alleged

against him.

6. Ordinarily, the power under Section 482 of the Code

should not be used to quash an FIR because that amounts to

interfering with the statutory power of the police to investigate a

cognizable offence in accordance with the provisions of the Code.

If the allegations made in the FIR prima facie disclose a

cognizable offence, interference with the investigation is not

proper and it can be done only in the rarest of rare cases where

the court is satisfied that the prosecution is malicious and

vexatious (See Teeja Devi v. State of Rajasthan : (2014) 15

SCC 221). It is a settled legal proposition that while considering

the case for quashing of the criminal proceedings the court

should not "kill a stillborn child", and appropriate prosecution

should not be stifled unless there are compelling circumstances

to do so. An investigation should not be shut out at the threshold

if the allegations have some substance. When a prosecution at Crl.M.C.No.7953/2018

the initial stage is to be quashed, the test to be applied by the

court is whether the uncontroverted allegations as made, prima

facie, establish the offence. At this stage neither can the court

embark upon an inquiry, whether the allegations in the complaint

are likely to be established by evidence nor should the court

judge the probability, reliability or genuineness of the allegations

made therein (See Vinod Raghuvanshi v. Ajay Arora : (2013)

10 SCC 581).

7. If the position of law is as mentioned above with

regard to quashing of FIR at the initial stage, it would almost be

totally impermissible to quash it at a stage when the

investigating agency has collected evidence against the accused

and completed the investigation of the case and when it is about

to file charge sheet against the accused in the court.

8. Faced with the above situation, the learned counsel for

the petitioner prayed that a direction may be given to the

investigating officer to file the final report without any delay.

When this Court put a query to the learned Public Prosecutor with

regard to the time within which the final report could be filed in Crl.M.C.No.7953/2018

the competent court, after getting instructions in the matter, the

learned Public Prosecutor submitted that the investigating officer

would be able to file the final report within a period of two

months.

9. In the above circumstances, I find that it is only

proper to give a direction to the investigating officer to file final

report in the jurisdictional court within a period of two months.

10. Consequently, the investigating officer is directed to

file final report in the case before the court concerned within a

period of two months from today. The petitioner is granted liberty

to take appropriate steps to challenge the final report after it is

filed in the court concerned, if so advised. The Crl.M.C is

disposed of as above.

All pending interlocutory applications are closed.

Sd/-

R.NARAYANA PISHARADI, JUDGE al/-

Crl.M.C.No.7953/2018

APPENDIX

PETITIONERS EXHIBITS :

ANNEXURE A- TRUE COPY OF THE C.M.P NO.716/2016 FILED BEFORE THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THALASSERY.

ANNEXURE B- TRUE COPY OF THE QUICK VERIFICATION REPORT FILED BY THE INSPECTOR OF POLICE, VACB, KANNUR.

ANNEXURE C- TRUE COPY OF THE ORDER IN C.M.P NO.716/2016 OF THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THALASSERY.

ANNEXURE D - TRUE COPY OF THE F.I.R IN CRIME NO.02/2017 OF V.A.C.B, KANNUR.

ANNEXURE E- TRUE COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT IN CRL.MC NO.5197 OF 2017.

ANNEXURE F- TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER TO THE STATEMENT FILED BY THE 2ND RESPONDENT.

ANNEXURE G- TRUE COPY OF THE JUDGMENT DATED 19/02/18 IN CRL.MC NO.5197 OF 2017.

ANNEXURE H - TRUE COPY OF THE REPRESENTATION ALONG WITH ANNEX'S DATED 16/06/18 SUBMITTED BY THE PETITIONER BEFORE THE INVESTIGATING AGENCY.

Crl.M.C.No.7953/2018

ANNEXURE-I-A TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER ON 27.04/2016 TO THE DEPUTY GENERAL MANAGER, M/S.FRBL.

ANNEXURE-J-A TRUE COPY OF THE REPLY DATED 11.01.2019 ISSUED BY THE PUBLIC INFORMATION OFFICER, DTPC, KANNUR.

ANNEXURE-K-A TRUE COPY OF THE APPLICATION UNDER THE PROVISIONS OF RIGHT TO INFORMATION ACT SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER, DTPC, KANNUR DATED 16.01.2019.

ANNEXURE-L-A TRUE COPY OF THE REPLY DATED 16.01/2019 ISSUED BY THE PUBLIC INFORMATION OFFICER, DTPC, KANNUR.

ANNEXURE-M-A TRUE COPY OF THE REPLY DATED 16.01.2019 ISSUED BY THE PUBLIC INFORMATION OFFICER, DTPC, KANNUR.

ANNEXURE-N-THE TRUE COPY OF CERTIFICATE OF APPRECIATION AWARDED BY THE DISTRICT COLLECTOR DATED 26.01.2016.

ANNEXURE-O-A TRUE COPY OF THE REPLY DATED 01/02/2019 ISSUED BY THE SECRETARY AND PUBLIC INFORMATION OFFICER, DTPC, KANNUR.

ANNEXURE P TRUE COPY OF THE APPLICATION DATED 30/9/2019 FILED UNDER RIGHT TO INFORMATION ACT BY THE PETITIONER BEFORE THE 4TH RESPONDENT

ANNEXURE Q A TRUE COPY OF THE REPLY DATED 3/10/2019 TO ANNEX.P MADE BY THE 4TH RESPONDENT TO THE PETITIONER Crl.M.C.No.7953/2018

ANNEXURE R A TRUE COPY OF THE APPLICATION MADE UNDER RIGHT TO INFORMATION ACT DATED 11/01/2019 MADE BY THE PETITIONER BEFORE THE 4TH RESPONDENT

ANNEXURE S A TRUE COPY OF THE REPLY DATED 16/1/2019 TO ANNEX R MADE BY 4TH RESPONDENT TO THE PETITIONER

ANNEXURE T A TRUE COPY OF THE REPLY DATED 3/10/2019 MADE BY THE 4TH RESPONDENT TO THE PETITIONER

ANNEXURE U A TRUE COPY OF THE APPLICATION DATED 14/1/2019 MADE UNDER RIGHT TO INFORMATION ACT BY THE PETITIONER BEFORE THE 4TH RESPONDENT

ANNEXURE V A TRUE COPY OF 4TH RESPONDENT'S REPLY DATED 16/1/2019 TO ANEX.U.

ANNEXURE W A TRUE COPY OF THE APPLICATION DATED 30/9/2019 FILED UNDER RIGHT TO INFORMATION ACT BY THE PETITIONER BEFORE THE 4TH RESPONDENT

ANNEXURE X A TRUE COPY OF THE REPLY DATED 5/10/2019 TO ANNEX. W BY 4TH RESPONDENT TO THE PETITIONER

ANNEXURE Y A TRUE COPY OF THE LETTER DATED 26/5/2016 WRITTEN BY THE 4TH RESPONDENT TO THE DIRECTOR, ANERT

ANNEXURE Y A A TRUE COPY OF THE LETTER DATED 4/6/2016 MADE BY THE 4TH RESPONDENT TO DIRECTOR, ANERT

ANNEXURE YB A TRUE COPY OF THE LETTER DATED 01/12/2016 WRITTEN BY 4TH RESPONDENT TO DIRECTOR, ANERT Crl.M.C.No.7953/2018

ANNEXURE Y C A TRUE COPY OF THE LETTER WRITTEN BY 4TH RESPONDENT TO DISTRICT ENGINEER, ANERT KANNUR IS PRODUCED HERE

ANNEXURE Y D A TRUE COPY OF THE LETTER DATED 19/2/2018 MADE BY THE DISTRICT ENGINEER, ANERT, KANNUR DISTRICT

ANNEXURE Z A TRUE COPY OF THE KANNUR DTPC REPORT

-2016 MADE BY 4TH RESPONDENT

ANNEXURE -A(a) - A TRUE COPY OF THE ABOVE SANCTION ESTIMATE NO.FRBL/DGM/TS/2015-16/06 DATED 23.02.2016 ISSUED BY THE CHIEF ENGINEER OF FACT-RCF BUILDING PRODUCTS LTD.

RESPONDENTS EXHIBITS : NIL

TRUE COPY

P.S TO JUDGE

AL/-