V.P. Harikrishna Kumar vs State Of Kerala
2021 Latest Caselaw 21896 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
 THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADIWEDNESDAY,
     THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                  CRL.MC NO. 7243 OF 2016
 CRIME NO.VC6/2015/SIU/II OF VIGILANCE AND ANTI-CORRUPTION
                BUREAU, THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.1:

         V.P. HARIKRISHNA KUMAR
         AGED 56 YEARS, S/O. PARAMESWARAN PILLAI,
         VAISHNAVAM, THILAK NAGAR, OROOTTAMBALAM,
         THIRUVANANTHAPURAM.
         BY ADVS.
         SRI.S.RAJEEV
         SRI.K.K.DHEERENDRAKRISHNAN
         SRI.D.FEROZE
         SRI.V.VINAY


RESPONDENT/STATE/COMPLAINANT:

    1    STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, ERNAKULAM-682 031.(CRIME NO.VC
         6/2015/SIU/II OF VIGILANCE & ANTI CORRUPTION
         BUREAU, THIRUVANANTHAPURAM).
         ADDL.R2 IMPLEADED
 ADDL.R2 SMT. LATHA .S.,
         "ASWATHY BHAVAN", MACHEL P.O. MOOKKUNNIMALA,
         THIRUVANANTHAPURAM 695 571.

         ADDL.R2 IS IMPLEADED AS PER ORDER DATED 24/9/21 IN
         CRL.MA. 2/21 IN CRL.M.C. 7243/2016.
         BY ADVS.SMT.REKHA.S, SR.P.P.
         SRI.NANDAGOPAL S.KURUP, P.P
     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 26.10.2021, THE COURT ON 03.11.2021 PASSED THE FOLLOWING:
 Crl.M.C.No. 7243 of 2016

                                    2




                   R. NARAYANA PISHARADI, J
            -----------------------------------------------
                     Crl.M.C.No. 7243 of 2016
           ------------------------------------------------
                Dated this the 03rd day of November, 2021

                              ORDER

The petitioner is the first accused in the case registered as

V.C.No.6/2015/SIU/II by the Deputy Superintendent of Police,

Vigilance and Anti-Corruption Bureau (VACB), Special Investigation

Unit-II, Thiruvananthapuram.

2. The petitioner was the Assistant Secretary of the

Pallichal Grama Panchayat during the period from 29.04.2013 to

31.05.2015. The second accused in the case was the Managing

Director of the company by name 'K.K.Rocks and Granite India

(Private) Limited'.

3. On the basis of a complaint made by the second

respondent, a surprise check was conducted by the VACB with

regard to the allegations in that complaint. On the basis of the

facts revealed in the surprise check, the above case was registered

against the petitioner and the second accused under Sections 13(1)

(c) and 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 (for short 'the P.C.Act') and also under Section Crl.M.C.No. 7243 of 2016

120B of the Indian Penal Code.

4. The allegations in Annexure-VII FIR read as follows:

"Sri V.P.Harikrishna Kumar (A-1) while working as Assistant Secretary, Pallichal Grama Panchayat during the period from 29.04.2013 to 31.05.2015, as such being a public servant, was given full Addl.charge of Secretary, Pallichal Grama Panchayat on 28.05.2015, just 3 days before his retirement, committed criminal misconduct by abusing his official position entered into criminal conspiracy with Sri.Arun Varghese (A-2), Managing Director, K.K.Rocks and Granite India Pvt LTD, Granite City, MLA Road, Malayam P.O., Thiruvananthapuram (Kottakkal, TC 2/3497, Pattom, Thiruvananthapuram) thereby A-1 illegaly and fradulently issued quarrying license No.126/2015-16 in Pallichal Village in Block No.IV in re-survey number 49/3-1, 49/3-3 etc at Mookkunnimala to A-2 by violating various conditions of the Special Rules for Assignment of Government lands for Rubber Plantations, 1960, Kerala Minor Mineral Concession Rules 2015, Kerala Panchayat Raj Act, 1994 etc. As a result, Sri.Arun Varghese (A-2), obtained pecuniary advantage towards the value of granite extracted from the said illegal quarry from 28.05.2015 onwards and thereby Government sustained corresponding loss."

5. This petition is filed under Section 482 of the Code of

Criminal Procedure, 1973 (for short 'the Code') for quashing all

proceedings against the petitioner which are based on Annexure-VII

FIR.

6. Heard the learned counsel for the petitioner and the

learned Public Prosecutor and also the learned counsel for the Crl.M.C.No. 7243 of 2016

second respondent.

7. The crux of the allegations against the petitioner in the

FIR is that, pursuant to a conspiracy hatched by him and the second

accused, he abused his official position as the Secretary of the

Panchayat and fraudulently and illegally issued quarrying licence to

the second accused in violation of statutory provisions, thereby

allowing the second accused to obtain pecuniary advantage by

conducting illegal quarrying operation.

8. Learned counsel for the petitioner contended that the

second accused had made application for obtaining Dangerous and

Offensive Trade Licence under the Kerala Panchayat Raj Act and he

had produced all necessary documents required to obtain the

licence. Learned counsel would contend that, the petitioner had

then no option other than to issue the licence. Learned counsel

would further contend that the petitioner issued licence to the

second accused after complying with all statutory formalities.

Learned counsel would also contend that the allegations against the

petitioner in the FIR do not disclose commission of the offences

alleged against him.

9. Per contra, learned Public Prosecutor has contended that

the petitioner granted licence to the second accused for conducting Crl.M.C.No. 7243 of 2016

quarrying operation in a land which was specifically assigned only

for the purpose of conducting rubber cultivation and that the

licence was illegally and fraudulently issued by him, just three days

before the date of his retirement from service.

10. Learned counsel for the second respondent has

supported the submissions made by the learned Public Prosecutor.

11. At the outset, it is to be noted that the licence issued by

the petitioner to the second accused was not a quarrying permit but

only a Dangerous and Offensive Trade Licence under the relevant

Rules under the Kerala Pnachayat Raj Act, 1994 (for short 'the

Act').

12. Along with the report filed by him, the investigating

officer has produced copy of the licence issued by the petitioner to

the second accused. It is dated 28.05.2015. It is a licence issued

under the Act and the Rules thereunder. It is not a quarrying

permit. The allegation in the FIR would create an impression that

the petitioner had issued quarrying permit to the second accused

and that the second accused conducted quarrying operation merely

on the basis of that licence.

13. Section 232(1) of the Act, as it stood at the relevant time,

provided that the Village Panchayat may notify that no place in the Crl.M.C.No. 7243 of 2016

Panchayat area shall be used for any of the purposes specified in

the rules made in this behalf being purposes which in the opinion of

Government, are likely to be offensive or dangerous to human life

or health or property, without a licence issued by the Secretary and

except in accordance with the conditions specified in such licence.

14. Section 233(1) of the Act provided that, no person shall,

without the permission of the Village Panchayat and except in

accordance with the conditions specified in such permission, - (a)

construct or establish any factory, workshop or workplace in which

it is proposed to employ steam power, water power or other

mechanical power, or electrical power; or (b) install in any premises

any machinery or manufacturing plant driven by any power as

aforesaid, not being machinery or manufacturing plant exempted

by the provisions of the Act or the rules made thereunder.

15. Section 233(2) of the Act provided that, an application

for permission under sub-section (1) shall be submitted to the

Village Panchayat addressed to the Secretary in such form and with

such details as prescribed. Section 233(3) of the Act provided that,

the Secretary shall, as soon as may be after the receipt of the

application, enquire and report to the Village panchayat as to

whether the establishment of the factory, workshop or workplace or Crl.M.C.No. 7243 of 2016

other installation of machinery or manufacturing plant for which

permission is applied for is objectionable by reason of density of

population in the neighbourhood and the possibility to cause

nuisance or pollution and the Village Panchayat after having

considered the application and the reports of the Secretary, and of

such other authorities as specified in sub-section (4) may as

expeditiously as possible, at any rate within sixty days, - (a) grant

the permission either absolutely or subject to such conditions as it

thinks fit to impose; or (b) refuse the permission for the reasons to

be recorded.

16. Section 233(4) of the Act provided that, before granting or

refusing permission under sub-section (3), the Village Panchayat,

shall obtain and consider - (a) a report of the Inspector of Factories

appointed under the Factories Act, 1948 (Central Act 63 of 1948) or

of an officer of the Industries Department not below the rank of an

Industries Extension Officer having jurisdiction over the area

regarding the adequacy of ventilation, light etc. and sufficiency of

the height and size of the rooms and doors and the suitability of

exits to be used in case of fire in the plan of factories, workshop

workplace or premises if they came within the purview of the

Factories Act, 1948 (Central Act 63 of 1948) and such other Crl.M.C.No. 7243 of 2016

matters as may be prescribed; (b) a report of the District Medical

Officer regarding the possibility of nuisance or pollution if the

connected load of the machinery proposed to be installed exceeds

25 HP or if the nature of the machinery and installation are such

that it may cause nuisance or pollution; and (c) a report of the

Divisional Fire Officer or any other officer authorised by him

regarding the adequacy of fire prevention and fire fighting

measures planned if the proposed industry involves the use of high

tension power or inflammable or explosive materials.

17. Rule 12(3) of the Kerala Panchayat Raj (Issue of Licence

to Dangerous and Offensive Trades and Factories) Rules, 1996 (for

short 'the Rules') provided that, the Village Panchayat shall, as soon

as maybe after the receipt of the application, within 45 days in the

case of obtaining no objection certificate from other establishments

and within 30 days in other cases, - (a) grant the permission

applied for either absolutely or subject to such condition as it thinks

fit to impose, or (b) refuse permission, if it is of the opinion that

such construction or establishment is objectionable by reason of

high density of population in the neighbourhood or that it is likely to

cause nuisance; or (c) where the application has not been disposed

of within the specified time, licence shall be deemed to have been Crl.M.C.No. 7243 of 2016

issued; or (d) the Secretary shall, in the case of factories, industrial

establishments etc, with machinery having capacity of less than 5

horse power and not causing pollution after accepting the fee for

licence, without the no objection certificate of another

establishments or the special permission of the Village Panchayat,

issue licence.

18. Learned Public Prosecutor has not pointed out which

provision under the Act or the Rules was violated by the petitioner

in issuing the D&O Licence to the second accused.

19. There is no allegation that the second accused had not

produced the documents required for granting licence under Rule

12 or under Section 233 of the Act. There is no allegation that the

second accused did not obtain the report/certificates of the

authorities specified in Section 233(4) of the Act for conducting

quarrying operation. In such situation, the petitioner, who was the

Secretary of the Panchayat, could not have rejected the application

for licence made by the second accused. When the application filed

by the second accused was proper, the Secretary of the Panchayat

had no option other than to issue the licence.

20. The petitioner, in his capacity as the Secretary of the

Panchayat, had no power or obligation to consider the validity or Crl.M.C.No. 7243 of 2016

otherwise of the licences/certificates issued by the authorities

under other statutes. The provisions of Sections 232 and 233 of

the Act as well as the Rules stand by themselves and those

provisions are not dependent on any decision to be rendered on the

basis of any other statute. The Panchayat authorities are only

bound to act under the provisions of the Act and the Rules. The

decision making process by the Panchayat authorities under the

Rules has to be independently made. Whether a particular

entrepreneur or a person, who has obtained D&O licence, could

ultimately carry out the activity was not the look out of the

Panchayat because that may depend on different licences and

permits to be granted by different authorities.

21. Learned Public Prosecutor and the learned counsel for

the second respondent would contend that the land in which

quarrying operation was proposed to be conducted by the second

accused was a land assigned with the specific condition that it shall

not be used for any purpose other than rubber cultivation. This is

not a matter which could have been taken into consideration by the

Panchayat in considering the application for D & O licence made by

the second accused. It is a matter which should have been

considered by the other statutory authorities who were competent Crl.M.C.No. 7243 of 2016

to issue quarrying permit.

22. The circumstances under which the petitioner happened

to issue licence to the second accused have also to be taken note

of. It was not for the first time that licence was granted to the

second accused to conduct quarrying operation in the property

concerned. The second accused had been conducting quarrying

operation in the property for a long period. Meanwhile, the Village

Officer, Pallichal issued Annexure-I stop memo dated 04.04.2012

to the second accused directing him to stop the quarry operation in

the land on the ground that it was a property assigned for

conducting rubber cultivation. The second accused (who was the

Managing Director of the company which was conducting the

quarrying operation) then filed a writ petition as W.P.(C) No.

10238/2012 before this Court. This Court passed Annexure-II

interim order dated 23.05.2012 in the above writ petition to the

effect that, if the second accused was having valid licence and

permit for conducting the quarrying operation in the property

concerned, he will not be interfered with or obstructed by any

person from conducting such operation.

23. The second accused, in his capacity as the Managing

Director of the company which conducted the quarrying operation, Crl.M.C.No. 7243 of 2016

had filed another writ petition before this Court as W.P.(C) No.

15211/2015, seeking a direction for issuing quarrying licence to

him. The Panchayat and its Secretary were the third and the fourth

respondents in that writ petition. When the above writ petition

came up for hearing on 01.06.2015, the learned counsel for the

writ petitioner submitted before this Court that, subsequent to the

filing of the writ petition, the Panchayat had granted licence as

prayed for and accordingly the writ petition was closed.

24. The allegation against the petitioner that he issued the

licence just three days before the date of his retirement from

service has to be considered in the above background. A writ

petition filed for granting direction to issue the licence was coming

up for consideration before this Court on 01.06.2015. It was in the

above circumstance that the petitioner issued the licence to the

second accused on 28.05.2015. It was only a coincidence that he

was due to retire from service on 31.05.2015, just on the previous

day of consideration of the writ petition by this Court. In such

circumstances, it cannot be found that the petitioner had issued the

licence with undue haste. It is not a circumstance to infer any

criminal conspiracy between the petitioner and the second accused. Crl.M.C.No. 7243 of 2016

25. In the absence of any allegation against the petitioner

that he issued the licence in violation of any specific provision

contained in Sections 232 and 233 of the Act or Rule 12, it cannot

be found that he had illegally or fraudulently issued the licence to

the second accused.

26. Annexure-VII FIR was registered as early as on

17.10.2015. The investigation in the case has been going on for

the last six years. The report filed by the investigating officer does

not disclose that any materials have been collected against the

petitioner during such investigation, which would indicate

commission of the offences under the P.C.Act by him. It is

mentioned in the report of the investigating officer that the

petitioner had issued the D & O licence to the second accused in

violation of the judgment of this Court in W.P.(C) No. 9605/2008.

The petitioner or the Pallichal Grama Panchayat was not a party to

the above writ petition. Then, it is not explained how the issuing of

licence by the petitioner would violate the directions given by this

Court in the judgment in that writ petition.

27. The report filed by the investigating officer would

indicate that during the investigation conducted for the last six

years it has been revealed that the second accused obtained the Crl.M.C.No. 7243 of 2016

quarrying licence in connivance with the Geologists and the Village

Officer concerned. It is also revealed from the report that steps

have been now taken to proceed against the above persons in the

case.

28. The discussion above would lead to the conclusion that

the allegations in Annexure-VII FIR do not disclose the commission

of the offences alleged against the petitioner. The investigating

officer has also not been able to find out any new material against

the petitioner during the investigation conducted for the last six

years.

29. In the aforesaid circumstances, the proceedings against

the petitioner based on Annexure-VII FIR would clearly constitute

abuse of the process of law and they are liable to be quashed.

30. Consequently, the petition is allowed. All criminal

proceedings against the petitioner, based on Annexure-VII FIR, are

hereby quashed.

Sd/-R. NARAYANA PISHARADI JUDGE lsn Crl.M.C.No. 7243 of 2016

APPENDIX OF CRL.MC 7243/2016

PETITIONER'S ANNEXURE ANNEXURE I COPY OF THE STOP MEMO DATED 4.4.2012 ISSUED BY THE VILLAGE OFFICER, PALLICHAL.

ANNEXURE II COPY OF THE ORDER DATED 23.5.2012 PASSED BY THIS HON'BLE COURT.

ANNEXURE III COPY OF THE PERMIT ISSUED ON 5.5.2015 FROM THE DEPARTMENT OF GEOLOGY.

ANNEXURE IV COPY OF THE CONSENT GIVEN BY POLLUTION CONTROL BOARD ON 18.5.2015.

ANNEXURE V COPY OF THE EXPLOSIVE LICENCE ISSUED TO THE PETITIONER ON 23.3.2015.

ANNEXURE VI COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT DATED 1.6.2015 IN WPC NO.15211/2015.

ANNEXURE VII COPY OF THE FIR IN CRIME NO.VC6/2015/SIU-

II OF VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.

ANNEXURE VIII COPY OF THE JUDGMENT DATED 1.12.2010 IN WA NO.1164/10 PASSED BY THIS HON'BLE COURT.

RESPONDENTS' ANNEXURE

Annexure R1(A) THE TRUE COPY OF THE REPORT DATED 28.08.2021.

Annexure R1(B) THE TRUE COPY OF THE ORDER DATED 22.02.2018.

TRUE COPY

P.A TO JUDGE

LSN