Kerala High Court
V.S.Achuthanandan vs State Of Kerala on 8 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 8TH DAY OF JUNE 2021 / 18TH JYAISHTA, 1943
CRL.MC NO. 4692 OF 2019
CRMP 1418/2015 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,,
THIRUVANANTHAPURAM
PETITIONER/S:
V.S.ACHUTHANANDAN
AGED 93 YEARS
S/O.SANKARAN, VELIKKAKATH VEEDU, PUNNAPPRA,
ALAPPUZHA, NOW RESIDING AT KOWDIAR HOUSE,
KOWDIAR.P.O, THIRUVANANTHAPURAM-695033
BY ADVS.
S.CHANDRASEKHARAN NAIR
SRI.RAJU GEORGE (KARUVATTA)
SRI.S.GOKUL BABU
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031
2 OOMMEN CHANDY
FORMER CHIEF MINSTER OF KERALA, KAROTTUVALLAKKALIL,
PUTHUPPALI.P.O, KOTTAYAM-686011
3 E.K.BHARATH BHUSHAN,
RETIRED CHIEF SECRETARY TO GOVERNMENT, RESIDING AT
FLAT NO.5151, SHOBA CITY, PUZHAKKAL, THRISSUR-680053
4 ASHOK KUMAR SINGH
FORMER MANAGING DIRECTOR, KERALA WATER AUTHORITY, NOW
RESIDING AS THE DIRECTOR, DEPARTMENT OF FINANCE
SERVICES, MINISTRY OF FINANCE SERVICE, MINISTRY OF
FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110001
5 T.V.VIJAYA KUMAR
ADDITIONAL SECRETARY, REVENUE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001
6 AVRUTHI MALL MANAGEMENT COMPANY LIMITED,
REPRESENTED BY ITS MANAGING DIRECTOR, JAIL CHAMBERS,
3RD FLOOR, SERVICE ROAD, VILA PARLEY, MUMBAI-400057.
7 JAYESH SONAJI,
MANAGING DIRECTOR, AVRUTHI MALL MANAGEMENT COMPANY
LIMITED, JAI CHAMBERS, 3RD FLOOR, SERVICE ROAD, VILA
PARLEY,MUMBAI-400057
Crl.M.C No.4692 of 2019
2
8 ARTECH REALTORS LIMITED
REPRESENTED BY ITS MANAGING DIRECTOR, ARTECH HOUSE,
VAZHUTHACAUD, SASTHAMANGALAM.P.O, THIRUVANANTHAPURAM-
695010.
9 T.S.ASHOK
MANAGING DIRECTOR, ARTECH REALTORS LIMITED, ARTECH
HOUSE, VAZHUTHACAUD, SASTHAMANGALAM.P.O,
THIRUVANANTHAPURAM-695010
OTHER PRESENT:
GP K.B.SONY WITH SPL.PP.VIGILANCE K.RAJESH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
09.03.2021, THE COURT ON 08.06.2021 DELIVERED THE FOLLOWING:
Crl.M.C No.4692 of 2019
3
ORDER
Dated this the 8th day of June, 2021
The challenge in this Criminal Miscellaneous
Case is against Annexure A1 order of the Enquiry
Commissioner and Special Judge, Thiruvananthapuram
dismissing Annexure A2 complaint filed by the
petitioner against respondents 2 to 9. The
petitioner, a former Chief Minister of the State,
had raised the following allegations in his
complaint;
The 6th respondent Company is in possession of
one acre of land at Pattoor, in
Thiruvananthapuram. A shopping mall is being
constructed in that property by the 8th
respondent. The sewerage pumping main line of the
Kerala Water Authority had been laid diagonally
Crl.M.C No.4692 of 2019
through the 6th respondent's property. During the
period 2013-14, while the 2nd respondent was the
Chief Minister and respondents 3 to 5 were high
ranking officials in the Government, the sewerage
line was shifted to one side of the 6 th
respondent's property, thereby effectuating
construction over a larger area. The land over
which the sewerage line was drawn is actually
Government land, which had vested with the Water
Authority under Section 16 of the Kerala Water
Supply and Sewerage Act, 1986. Respondents 6 and
7, by creating false documents, had reduced the
property into their possession. By shifting the
sewerage line, respondents 2 to 5 had aided
respondents 6 to 9 in gaining undue pecuniary
advantage. The order authorising shifting of the
pipeline was issued by suppressing adverse reports
and in violation of the prescribed procedure. The
Crl.M.C No.4692 of 2019
accused had, by their actions and omissions,
committed offences punishable under Section 120B
IPC read with Section 13(1) (d) of the Prevention
of Corruption Act, 1988.
2. The following facts are not in dispute;
Prior to the filing of Annexure A2, another public
spirited citizen had filed a complaint before the
Lok Ayukta. During the pendency of that complaint,
the Deputy Superintendent of Police, Vigilance and
Anti Corruption Bureau registered Crime No.03 of
2017 at the VACB, SIU-1, Thiruvananthapuram for
offences under Section 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act and Section 120B of
the Indian Penal Code. Some of the accused
challenged Annexure A3 FIR and further proceedings
before this Court in W.P (C) No. 36735 of 2017 and
connected cases. The petitioner herein, who by
that time had submitted Annexure A2 complaint, was
Crl.M.C No.4692 of 2019
also arrayed as a respondent in the writ
petitions. This Court, after elaborate
consideration of the allegations, found the claim
of title by the Water Authority over the 6 th
respondent's land to be unsustainable. It was also
held that, even if the allegation that the
property in dispute belongs to the Water Authority
is accepted, the action of the accused will not
attract the provisions of the Prevention of
Corruption Act since the 6th respondent Company
had not gained any pecuniary advantage by the
shifting of the sewerage line from one part of its
property to another. Based on the findings, it was
held that the FIR did not disclose commission of
the offences under the Prevention of Corruption
Act. Accordingly, Annexure A3 FIR and further
proceedings were quashed. The impugned Annexure A1
order is issued in the light of the judgment in
Crl.M.C No.4692 of 2019
W.P(C)No. 36735 of 2017 and connected cases.
3. The main ground of challenge against
Annexure A1 order is the impropriety in rejecting
Annexure A2 complaint for the sole reason of this
court having quashed Annexure A3 FIR. According to
the petitioner, the allegations in Annexure A2
complaint and Annexure A3 FIR are different and in
any event, the complaint should not have been
rejected without conducting preliminary enquiry.
The decision of the Apex Court in Lalita Kumari v
State of U.P. [(2014) 2 SCC 1] is pressed into
service in support of this proposition.
4. Heard Sri.S. Chandrasekharan Nair, learned
Counsel for the petitioner and Smt.K.B.Sony,
learned Special Public Prosecutor (Vigilance).
5. A comparison of the averments in Annexure
A3 FIR and Annexure A2 complaint reveals that the
allegations are substantially the same. The only
Crl.M.C No.4692 of 2019
difference being that Annexure A2 complaint
contains more details, which difference is
immaterial in view of the settled legal position
that an FIR need not be a compendium of all facts.
In such circumstances, the petitioner's prayer, if
allowed, will result in the registration of a
second FIR on the very same set of facts.
6. The legality in registering a second FIR on
the same set of facts was considered by the Apex
Court in T.T. Antony v State of Kerala [(2001) 6
SCC 181]. Paragraphs 20 and 27 of the judgment,
which are contextually relevant reads as under:
"20. From the above discussion it
follows that under the scheme of the
provisions of Sections 154, 155, 156, 157,
162, 169, 170 and 173 CrPC only the earliest
or the first information in regard to the
commission of a cognizable offence satisfies
the requirements of Section 154 CrPC. Thus
there can be no second FIR and consequently
there can be no fresh investigation on
receipt of every subsequent information in
respect of the same cognizable offence or
the same occurrence or incident giving rise
to one or more cognizable offences. On
Crl.M.C No.4692 of 2019
receipt of information about a cognizable
offence or an incident giving rise to a
cognizable offence or offences and on
entering the FIR in the station house diary,
the officer in charge of a police station
has to investigate not merely the cognizable
offence reported in the FIR but also other
connected offences found to have been
committed in the course of the same
transaction or the same occurrence and file
one or more reports as provided in Section
173 CrPC.
xxxxxx
27. A just balance between the fundamental
rights of the citizens under Articles 19 and
21 of the Constitution and the expansive
power of the police to investigate a
cognizable offence has to be struck by the
court. There cannot be any controversy that
sub-section (8) of Section 173 CrPC empowers
the police to make further investigation,
obtain further evidence (both oral and
documentary) and forward a further report or
reports to the Magistrate. In Narang case
[(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it
was, however, observed that it would be
appropriate to conduct further investigation
with the permission of the court. However,
the sweeping power of investigation does not
warrant subjecting a citizen each time to
fresh investigation by the police in respect
of the same incident, giving rise to one or
more cognizable offences, consequent upon
filing of successive FIRs whether before or
after filing the final report under Section
173(2) CrPC. It would clearly be beyond the
purview of Sections 154 and 156 CrPC, nay, a
case of abuse of the statutory power of
investigation in a given case. In our view a
Crl.M.C No.4692 of 2019
case of fresh investigation based on the
second or successive FIRs, not being a
counter-case, filed in connection with the
same or connected cognizable offence alleged
to have been committed in the course of the
same transaction and in respect of which
pursuant to the first FIR either
investigation is underway or final report
under Section 173(2) has been forwarded to
the Magistrate, may be a fit case for
exercise of power under Section 482 CrPC or
under Articles 226/227 of the Constitution."
Going by the principle enunciated above, the
learned Special Judge was fully justified in
rejecting Annexure A2 complaint, since a second
FIR based on the very same allegations cannot be
registered, more so when the first FIR has been
quashed on merits.
7. The contention based on Lalita Kumari is
also misplaced, since the question considered by
the Constitution Bench was regarding the duty of
the police to register FIR on receipt of
information regarding commission of cognisable
offence/s. The legality or otherwise of
Crl.M.C No.4692 of 2019
registering a second FIR based on the same set of
facts had not arisen for consideration therein. On
the question of preliminary enquiry, the
conclusion in Lalita Kumari is as under;
"120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches
in initiating criminal prosecution, for
example, over 3 months' delay in reporting the
matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry."
In my considered opinion the above finding cannot
be understood to be a declaration that even in
cases where FIR is already registered, preliminary
enquiry is bound to be held on a subsequent
complaint, containing the very same allegations,
Crl.M.C No.4692 of 2019
being filed.
For reasons aforementioned, the challenge
against Annexure A1 fails. Consequently, the
Crl.M.C is dismissed.
Sd/-
V.G.ARUN
JUDGE
Scl/
Crl.M.C No.4692 of 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 COPY OF THE ORDER DATED 13TH MARCH 2018
IN CRL.M.P.NO.1418/2015 PASSED BY THE
ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
THIRUVANANTHAPURAM
ANNEXURE A2 COPY OF THE COMPLAINT IN CRIMINAL MP
NO.1418/2015 FILED BY THE PETITIONER
BEFORE THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, THIRUVANNATHPAURAM
ANNEXURE A3 THE COPY OF THE FIR IIN V.C.3 OF
17/VACB, SUI-1 PREPARED BY THE
VIGILANCE AND ANTI CORRUPTION BUREAU,
SPECIAL INVESTIGATION UNIT-1, BEFORE
THE ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, THIRUVANANTHAPURAM ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
THIRUVANANTHAPURAM
ANNEXURE A4 COPY OF THE COMPLAINT FILED BY THE
PETITIONER BEFORE THE SUPERINTENDENT
DATED 25.5.2015 OF POLICE VIGILANCE
VACB, THIRUVANNATHAPURAM.
ANNEXURE A4(A) TRUE COPY OF RECEIPT OF THE COMPLAINT
ISSUED BY VACB, SRT THIRUVANANTHAPURAM
DATED 15.7.2015
