Kerala High Court
B.S Jayakumar vs State Of Kerala on 19 April, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
CRL.REV.PET NO. 580 OF 2022
CRIME NO.01/2010 OF VACB, THIRUVANANTHAPURAM,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 27.06.2022 IN CRMP
NO.214 OF 2019 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
REVISION PETITIONER/S:
B.S JAYAKUMAR
AGED 64 YEARS
SUPERINTENDING ENGINEER (RETD), LOCAL SELF
GOVERNMENT DEPARTMENT, RESIDING AT MANGALYA, T
C 25/77 (1), THAMPANOOR, THIRUVANANTHAPURAM,
PIN - 695001
BY ADVS.
P.NANDAKUMAR
VIVEK VIJAYAKUMAR
AMRUTHA SANJEEV
K.G. DEVIPRIYA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 THE DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU, SOUTHERN
RANGE, THIRUVANANTHAPURAM, PIN - 695010
BY SRI RAJESH A SPL GOVERNMENT PLEADER
SMT REKHA SR PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 19.04.2024, ALONG WITH OP(Crl.).431/2022,
515/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
OP(CRL.) NO. 431 OF 2022
CRIME NO.VC 1 / SRT/2010 OF VACB, THIRUVANANTHAPURAM,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.15 OF 2014 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
PETITIONER/S:
MANSOOR J
AGED 73 YEARS
TOWN PLANNING OFFICER (RETIRED), MUNICIPAL
CORPORATION (TVM), SON OF JALALUDEEN, RESIDING
AT PLOT NO.56, T.C. 6 / 1564, PTP NAGAR,
THIRUVANANTHAPURAM, PIN - 695038
BY ADV S.ABDUL RAZZAK
RESPONDENT/S:
STATE OF KERALA
THROUGH DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU, SOUTHERN
RANGE, THIRUVANANTHAPURAM, PIN - 695033
BY SRI RAJESH A SPL GOVERNMENT PLEADER
SMT REKHA SR PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
19.04.2024, ALONG WITH Crl.Rev.Pet.580/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
OP(CRL.) NO. 515 OF 2022
CRIME NO.VC/2010 OF VACB, THIRUVANANTHAPURAM,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 27.06.2022 IN CMP
NO.1334 OF 2015 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
PETITIONER/S:
A.ABDUL RASHEED @ DR.A.R.BABU
AGED 65 YEARS
MANAGING DIRECTOR, M/S. HEERA CONSTRUCTION
COMPANY(P) LTD. HEERA PARK,M.P.APPAN ROAD,
VAZHUTHACADU, THYCAUD P.O, THIRUVANANTHAPURAM,
PIN - 695014
BY ADV S.ABDUL RAZZAK
RESPONDENT/S:
STATE OF KERALA
THROUGH DEPUTY SUPERINTENDENT OF POLICE,
DIRECTORATE, VIGILANCE AND ANTICORRUPTION
BUREAU, SOUTHERN RANGE, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695033
BY SRI RAJESH A SPL GOVERNMENT PLEADER
SMT REKHA SR PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
19.04.2024, ALONG WITH Crl.Rev.Pet.580/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..4..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
CRL.REV.PET NO. 777 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 27.06.2022 IN CC NO.15
OF 2014 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM
REVISION PETITIONER/S:
SREELATHA
AGED 61 YEARS
T.C 6/1356(2), PTPA 37, MARUTHAMKUZHI,
THIRUVANTHAPURAM, PIN - 695030
BY ADVS.
SIDHARTH A.MENON
V.AJAKUMAR
P.PARAMESWARAN NAIR
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY SRI RAJESH A SPL GOVERNMENT PLEADER
SMT REKHA SR PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 19.04.2024, ALONG WITH
Crl.Rev.Pet.580/2022 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..5..
"C.R."
K. BABU, J
-------------------------------------------------
Crl.R.P.Nos. 580 & 777 of 2022
and
O.P.Crl.Nos.431 & 515 of 2022
-------------------------------------------------
Dated this the 19th day of April, 2024
ORDER /JUDGMENT
The challenge in the Criminal Revision Petitions and
the Original Petitions is to the common order dated
27.06.2022 passed by the Court of the Enquiry
Commissioner and Special Judge, Thiruvananthapuram in
Crl.M.P.Nos.928/2016, 214/2019, 301/20, 162/20, 67/21,
1334/15 & 739/2016 in C.C.No.15/2014. In the Original
Petitions, the petitioners further challenge the order
framing charges against them.
2. The Calendar Case arises from FIR
No.VC1/2010/SRT registered by the Vigilance and Anti-
Corruption Bureau (the VACB), Southern Range,
Thiruvananthapuram. There were nine accused in the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..6..
case. They are alleged to have committed offences
punishable under Section 13(2) r/w Section 13(1)(d) of
the PC Act and Section 120B IPC. Accused No.1 is the
petitioner in O.P.(Crl) No.431 of 2022. The petitioner in
Crl.R.P.No.580 of 2022 is accused No.2. The petitioner in
O.P.(Crl) No.515 of 2022 is accused No.8. Accused No.9
is the petitioner in Crl.R.P.No.777 of 2022.
3. The prosecution case is as follows:-
The first accused was the Town Planning Officer of
Thiruvananthapuram Corporation from 2001 to 2004. The
second accused succeeded him and served as such from
01.06.2004 to 26.04.2005. Accused No.3 was the Assistant
Town Planning Officer during 2002 to 2006. Accused No.4
was the Building Inspector during the said period and was
holding charge of Building Inspector, Kuravankonam
Circle from 2003 to 2005. Accused No.5 was the Mayor of
Thiruvananthapuram Corporation from October 2000 to
September 2005. Accused No.6 worked as the Secretary of
Thiruuvananthapuram Development Authority (TRIDA)
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..7..
from 2003 to 2004. Accused No.7 was the Regional Town
Planner during 2003 to 2004. These public
servants hatched a conspiracy with Accused No.8, the
Managing Director of Heera Construction Company
Pvt.Ltd and accused No.9, a registered Architect
Engineer, and in pursuance of the conspiracy, they
dishonestly and fraudulently issued a permit dated
30.06.2004, for the construction of a 14 storied
apartment at Kowdiar, violating the detailed Town
Planning Scheme (DTPS) and thereby permitted accused
No.8 to construct the said building illegally with the
intention to obtain pecuniary advantage to the tune of
Rs.900,59,340/-.
4. Originally, the case was registered against one
T.K. Raveendran, the former Secretary of the
Thiruvananthapuram Corporation as well. He died before
the submission of the final report.
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..8..
5. The specific allegations levelled against each of
the accused as discernible from the impugned order are
extracted below:-
"Smt. Thankamma Joseph, aged 86/09, W/o late V.V.
Joseph IAS (Rtd), executed an agreement with Abdul
Rasheed, Managing Director, Heera Construction
Company Pvt.Ltd.(A8) at Sub Registrar Officer, Pattom,
on 08.10.2003, as per which the latter was made
power of attorney to construct a 14 storied building in
her 30 cents of land, in survey No.3650/18-2/2-12 of
Kowdiar village. As per agreement, A8 has to provide
a commercial space of 5000 sq.feet and 2 residential
apartments to her in the proposed building.
Accordingly, A8 filed an application for permit before
the Thiruvananthapuam Corporation on 28.11.2003,
for constructing a 14 storied building, with a height of
36.45 meters, covering 68.8% of the plot. Along with
the application, the agreement executed with the land
owner and a certificate issued by the registered
Engineer, Smt.P.Sreelatha (A9), stating that building
plan was prepared in accordance with the Building
rules and Town Planning Scheme were also enclosed.
5. The Corporation building inspector Sri.S.
Raju (A4), after inspecting the site, recommended that
the application be placed before the Road
Development Committee, as the proposed site fell
within the residential zone, as per the master Plan. He
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..9..
intentionally suppressed the fact that detailed town
planning scheme, for museum-Kowdiar Avenue was
applicable to the proposed site. The then Town
Planning Officer Sri.J.Mansoor (A1), directed the
Building Inspector to obtain approval from RDO, for
free surrender of land. After obtaining proceedings
dated 22.03.2004 of the RDO, Thiruvananthapuram, A4
again submitted his recommendation to the Town
Planning Officer (A1), who also recommended to place
the application before the Road Development
Committee. The Assistant Town Planning Officer
Sri.K.Balagopal (A3), on 02.04.2004, approved the
technical note prepared by the Building Inspector (A4),
suppressing the violation of DTP Scheme and
forwarded it to the Town Planning Officer (A1), who in
turn recommended the same.
6. The, then Secretary of
Thiruvananthapuram Corporation, Sri.
T.K.Raveendran, approved the technical note to place
the application before the Road Development
Committee. The Road Development Committee, which
met on 15.04.2004, was presided over by the
Corporation Mayor Prof. J. Chandra (A5) and attended
by the Secretary, TRIDA Sri.V.V. Krishnarajan (A6), the
Regional Town Planner Sri.A. Vijayachandran(A7) and
the Deputy Chief Engineer, PWD Sri. P. Vijayamohan.
The Committee accorded sanction to issue permit for
the construction of the 14 storied building, subject to
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..10..
the approval of the Secretary, TRIDA relating to the
land surrendered by the land owner.
7. As per the request of the Town Planning
Officer (A1), the Secretary, TRIDA (A6), vide letter
dated 24.06.2004, forwarded the details of the 39m 2
land surrendered by the land owner. The Building
Inspector (A4) verified the permit application file and
recommended issuance of permit, and on the same day
(24/6/2004), the Assistant Town Planning Officer (A3),
and the Town Planning Officer Sri. B.S. Jayakumar (A2)
recommended to issue permit, and as per the directive
dated 30.06.2004 of the Corporation Secretary, the
Town Planning Officer issued the permit to A8 Sri.
Abdul Rasheed, to construct the 14 storied apartment
building.
8. As per the DTP Scheme and Zoning
regulations, the height of the building was restricted to
7.5 metres, the maximum coverage to 30% of the plot
area and as the proposed area (survey No.3650) fell
under residential zone, no commercial purpose was
permitted. But in the application of A8, permit was
requested for constructing a 14 storied building of
36.45 meters height covering 68.8% of the plot, a
portion of which was intended for commercial purpose.
Thus, the permit application was in violation of DTP
Scheme.
9. The Building Inspector, Assistant Town
Planning Officer, Town Planning Officer and the
Corporation Secretary had suppressed the DTP
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..11..
Scheme violations, and placed the permit application
and the technical note before the Road Development
Committee for issuing permit.
10. As per the Rule 85 of KMBR, the
mandatory quorum for the Road Development
Committee was 3, including the Convener and the
Chairman. But the Convener of the meeting i.e.,
Thiruvananthapuram Corporation Secretary, did not
participate in the Road Development Committee
meeting held on 15.04.2004. The illegal committee
meeting, presided over by the Mayor (A5), decided to
issue permit to A8, in violation of the DTP Scheme.
11. The Senior Town Planner, (Vigilance) of
Government of Kerala, had inspected the building,
while it was under construction and submitted a report
to the Government on 14.02.2005, stating that the
permit for the building was issued in violation of the
DTP Scheme and Zoning regulations, that the
proposed site being in the heritage zone, approval of
the Heritage Commission should have been obtained;
and that the building was found constructed in
violation of Rule 32,39 and 50 of KMBR. Hence the
Senior Town Planner recommended to revoke the
permit and to stop construction, for further verification
by the Chief Town Planner. In pursuance of the report
of the Senior Town Planner, the Government vide order
dated 18.06.2005, sought explanation from the
Corporation officials and members of the Road
Development Committee. In the reply furnished by the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..12..
Secretary, Thiruvananthapuram Corporation dated
02.07.2005, he suppressed the fact that the site of the
building fell within the DTP Scheme. On the other
hand, he tried to cover-up the issuance of permit, by
stating that, another 14 storied building, namely
"Heera Palace" was already constructed in 1997, very
near to the alleged building, as per the permit issued
by the Corporation. But he intentionally suppressed
the fact that the "Heera Palace building" was situated
in survey No.3671, which was outside the DTP
Scheme.
12. As per the report of the Chief Town Planner,
Thiruvananthapuram, the builder (A8) was eligible to
construct a double storied building, with maximum
plinth area of 728.46 sq. meter in 30 cents of land
comprised in survey No.3650 of Kowdiar Village. But,
in pursuance of a criminal conspiracy among the
accused, the Corporation officials issued permit to
construct a 13 storied building (Heera Velmount
Palace) with a plinth area of 5932.20 m2, in violation of
the building rules and DTP Scheme. It is alleged that
A8 had colluded with A9 and other accused, and A9
had issued a certificate to facilitate A8 to obtain
pecuniary advantage to a tune of Rs.9,00,59,340/-
(Rupees Nine Crore fifty nine thousand three hundred
and forty only). The officials of the Corporation
committed official misconduct with intention to
facilitate A8 obtained the above said amount, by
corrupt and illegal means."
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..13..
6. The Vigilance and Anti-Corruption Bureau
conducted investigation and submitted final report before
the Trial Court. The petitioners appeared in response to
the summons. They filed applications seeking discharge
under Section 239 of Cr.P.C. The learned Special Judge
dismissed the applications as per a common order. The
said common order is under challenge.
7. The relevant portion of the impugned order is
extracted below:-
"44. Point No.1:-
The petitioners in CMP.928/16, CMP.214/2019,
CMP.301/2020, CMP.162/2020 and CMP.67/2021
have contended that the order of sanction dated
22.01.2014 and 15.03.2014, issued by the Principal
Secretary to Government and the Chief Engineer, to
prosecute accused No.6 and accused No.4, are bad
in law. Petitioners would contend that initially the
Government had declined sanction for prosecution.
Later, a final report was also filed, dropping charges.
But my learned predecessor refused to accept the
refer report and directed the Investigating officer to
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..14..
place the entire materials collected in the course of
investigation before the authority competent to
grant sanction. It was also observed in the order that
herein, have already retired from service. It seems,
based on the directions issued by my learned
predecessor, the Investigating agency placed the
matter before the competent authority. The
competent authority reviewed the earlier order and
granted sanction to prosecute accused Nos.4 and 6.
Petitioners now contend that there was total non-
application of mind while granting sanction, that the
sanction was granted by officers, subordinate to the
earlier officers who declined sanction and that no
further material was produced before the
sanctioning authority to review the earlier order
declining sanction.
45. The contentions involve mixed question of fact
and this court is of the view that the said contentions
cannot be considered at this stage of proceedings,
when the trial is yet to commence. This aspect was
considered by the Hon'ble Aprx Court in Prakash
Singh Badal and Another v. State of Punjab and
others (2007 (1) SCC (1)). It was held so
"there is a distinction between the absence
of sanction and the alleged invalidity on
account of non-application of mind. The
former question can be agitated at threshold
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..15..
but the latter is a question which has to be
raised during trial".
46. The above position of law was reiterated by our
Hon'ble High Court P.Sasidharan Nair v. State of
Kerala (MANU/KE/2783/2021). It is held that
37. Recently, in Major.M.C.Ashish
Chinappa v. CBI (order dated 22.09.2021
in SLP (Crl)No.2576/2019, the Supreme
Court has observed as follows:
"Since the cognizance has already been
taken against the petitioner and the trial is
in progress, it is open for the petitioner to
raise the question of validity of sanction
during the course of trial and the trial court
is bound to consider the said question at an
appropriate stage".
38. The validity of a sanction order, if one
exists, has to be tested on the touchstone of
the prejudice to the accused which is
essentially a question of fact and, therefore,
should be left to be determined in the
course of the trial and not in the exercise of
jurisdiction either under section 482 of the
Code of Criminal Procedure, 1973 or in a
proceeding under Article 226/227 of the
Constitution of India (See Director, C.B.I v.
Ashok Kumar Aswal: (2015) 16 SCC 163).
39. In the instant case, the trial court has
already taken cognizance of the offences
against the petitioner. It is not a case where
there is total absence of sanction but
question of validity of sanction is raised. It
is a matter which the petitioner has to raise
before the trial court at the appropriate
stage.
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..16..
47. In the light of the above discussion, I hold that the
question regarding validity of sanction need not be
addressed at this stage of proceedings.
48. Point No.2:-
Both, accused Nos.1 and 2 had worked as Town
Planning Officers at Thiruvananthapuram
Corporation, at different point of time. Al worked as
Town Planning Officer during 2001-04, while A2
worked as Town Planning Officer from 01.04.2004 to
24.04.2005. Prosecution alleges that, both, Al and A2
had direct role in recommending issuance of building
permit in favour of Heera Constructions Private
Limited at Kowdiar.
49. The contention of Al is that the building permit
was issued on 30.06.2004, whereas, his last day as the
Town Planning officer was on 02.06.2004. It is further
argued that the building was inspected by A2 on
26.04.2004, after he left the office and hence he had
no role in the building permit issued in favour of
Heera Constructions Private Limited. Accused No.2
on the other hand contends that he took charge as the
Town Planning Officer of Thiruvananthapuram
Corporation on 06.06.2004. He did not participate in
the Road Development Committee meeting held on
15.04.2004. The road development committee had
already recommended to grant building permit,
before he took charge. He had no role in the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..17..
controversial building permit, issued on the basis of
the recommendation of Road Development Committee
and as such the charge submitted against him is
improper.
50. The rival contentions of Al and A2 regarding their
respective role in the issuance of building permit itself is a
question of fact, requiring a factual enquiry.
51. The Prosecution case is that as per the DTPS, the plot
where the building was constructed comes within the
heritage zone. No building for commercial activities is
permissible at this zone. The existing detailed town
planning schemes for Museum Kowdiar Avenue, published
vide Government Order, GO(MS).128/86/LAD dated
08.07.1986 (Document No.4) is pressed into service, as
proof. As per this scheme, Survey No: 3650 of Kowdiar
Village falls within residential zone were height of the
building is restricted to 7.5 meter and number of floors to
two. It is contented that, contrary to the scheme, the
ground floor of the building was set part for commercial
space. DTPS also restricts the coverage of the building to
30% of the land. In violation of these conditions, Heera
Constructions was permitted to construct a 14 storied
building utilizing 68.8% of the plot.
52. Prima facie proof of the restrictions can be gathered
from the DTPS produced along with the final report.
Records reveal that, the application for building permit
came before witness No:4, V.Santhosh Kumar, who at that
time was working at the town planning section of
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..18..
Thiruvananthapuram corporation. He forwarded the same
to accused No.4, the Building Inspector. The witness states
that as per the application the height of the building was
36.45 meters from the road level and that it had coverage
of 68.8%. Prosecution places reliance on file No.TP1
55955/03 produced as document No.3, from which it can
be seen that accused No.4 after inspecting the plot has
reported that the building comes within residential zone
and that as per Chapter XI, the application can be
forwarded to the Road Development Committee. Accused
No.3 had also noted in the file that the application can be
placed before the road development, after getting
proceedings from RDO that the land has been freely
surrendered for Road Development. Subsequently, the
application was forwarded to the RDO who passed orders
accepting the offer for road surrender.
53. On 01.04.2004, and 02-04-2004, the 3rd and 4th
accused recommended that the application be placed
before the Road Development Committee. Subsequently,
on 03.04.2004, the first accused also recommended that
the application can be placed before the Road
Development Committee. The Road Development
Committee held its meeting on 15.04.2004. The
application of Heera Constructions Private Limited was
considered and Road Development Committee gave
permission for surrender of land, subject to the approval
of TRIDA Secretary. On 17.04.2004, the first accused again
noted in the file that the proposal was accepted by the
Road Development Committee and that to obtain the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..19..
approval of TRIDA Secretary, NOC from Fire and Airport
authority is necessary which has to be intimated to Heera
Constructions. On 24.06.2004, A4 had noted in the file that
TRIDA has already taken possession of the land
surrendered for road development. He also noted that
NOC of Airport authority was also produced hence
building permit can be issued on receiving payment of
Rs.29665/-. On 25.06.2004, 3rd accused gave
recommendation to issue building permit after accepting
the license fee.
54. The role of accused No.2 comes subsequently. On
28.06.2004, he has written in document No.3 note file as
follows:-
"The proposal with construction is 13 storied (GS+12
storey) residential flat building. The proposal satisfies
the KNBR rule and all mandatory sanctions from fire
force, civil aviation department and proceedings of
RDO regarding land surrender, proceeding of the
TRIDA Secretary are produced. Hence license may be
granted subject to the following conditions. 1. Bearing
capacity of the soil should be checked and confirmed
before the foundation work. 2. Work shall be carried
out under the supervision of a qualified structural
engineer. 3. The liquid and solid waste disposal
system shall be made to the satisfaction of authority
concerned. 4. Final NOC of the fire force department
shall be observed before occupancy, 5. Rainwater
harvesting arrangements, septic tank of sufficient
capacity, soak pit etc. of required norms shall be
provided".
On 30.06.2004, the then Secretary of the Corporation
accepted the proposal and issued building permit.
55. There are sufficient materials to prima-facie
conclude that the plot in question, comprised in
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..20..
survey No.3650, comes within the heritage zone.
There are also materials to conclude that the
maximum height of the building for which permit can
be granted at the heritage zone, is 7.5 meters. The
scheme also mandates that building with a maximum
of two stories alone can be permitted to be
constructed at the heritage zone. Despite these clear-
cut guidelines, accused Nos.1 to 4 granted permission
to construct a 14 storied apartment, having a55.
There are sufficient materials to prima-facie conclude
that the plot in question, comprised in survey
No.3650, comes within the heritage zone. There are
also materials to conclude that the maximum height of
the building for which permit can be granted at the
heritage zone, is 7.5 meters. The scheme also
mandates that building with a maximum of two stories
alone can be permitted to be constructed at the
heritage zone. Despite these clear-cut guidelines,
accused Nos.1 to 4 granted permission to construct a
14 storied apartment, having a height of 36.5 meters,
which according to the prosecution is in pursuance of
a criminal conspiracy..
56. The contention of the accused No.1 that when the
building permit was issued he was not in charge of
the Town Planning Officer, Thiruvananthapuram
Corporation will not hold good, for, there are enough
materials to show that he had a role in placing the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..21..
matter before the Road Development Committee.
Road Development Committee had no power to relax
zoning regulations. At the best it can make some
relaxation in the building rules so far as it relates to
coverage and floor area ratio, setback, height etc.
57. Site inspection is mandatory before
recommending permit. Site inspection was in fact
conducted, which would have definitely revealed that
the building comes within heritage Zone. Once it is
shown that the building comes within the heritage
zone, accused Nos. 1 and 3 to 4 ought not to have
recommended the matter to be placed before Road
Development Committee. They could have rejected
the application for building permit then and there,
pointing out that the construction of a 14 storied
building is not permissible in the area. Having failed
to do so and having actively participated in the
procedure prior to the Road Development Committee
meeting held on 15.04.2004, Al cannot contend that
he had no role in the issuance of building permit. The
failure of Al to mention in the technical report
prepared by him that the site comes within heritage
zone, has been stressed even in the order dated 10-
12-2007 of the then secretary of Corporation. (Page
524 of file No. TP1/55955/03 [Document No.3]). The
said report is produced as Document No:1, which
bears the signature of Al and A3. It is noted in the
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& O.P.(Crl) Nos.431 & 515 of 2022
..22..
report that there is no zonal violation. If a correct
report was furnished, the special committee would not
have granted permission to surrender land for road
development Hence he cannot wash off his hands
contenting that he left the office prior to the issuance
of permit.
58. Same is the case with accused No.2. Though he
had no role in the procedure which took place prior to
the Road Development Committee meeting held on
15.04.2004, it was well within his realm to disallow
the application for building permit on the ground that
the construction of a 14 storied building is not
permissible at the plot, subsequently after he took
charge.
59. As already pointed out, the Road Development
Committee had no role in the relaxation of DTPS.
Hence the contention of A2 that he had only acted on
the basis of recommendation of Road Development
Committee also will not hold good.
60. In the light of the above discussions, I hold that
there are sufficient materials to proceed against Al
and A2, as both of them had decisive roles in
processing the application for building permit and in
the issuance of building permit in violation of the
DTPS, which can be prima-facie regarded as a
circumstance, pointing towards their involvement in
the criminal conspiracy.
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& O.P.(Crl) Nos.431 & 515 of 2022
..23..
68. Point No.4:
Accused No.9 was the registered Architect Engineer. It
was accused No.9, who certified that the application for
building permit, is in accordance with DTPS. As already
pointed out as per the DTPS the plot in question comes
within the heritage zone and as such the maximum
height permissible was 7.5 meters. That apart, the
maximum stories permissible in the zone were two.
Being a registered Architect Engineer, doing professional
duty within Thiruvananthapuram Corporation limit,
accused No.9 would have been and should have been
aware of the zoning regulations under the DTPS. Despite
that she has certified that the application for building
permit for the construction of a 14 storied building,
having a height of 36.5 meters and covering 68% of the
plot is in accordance with the DTPS, where as in reality,
the said certification was in total disregard of the DTPS.
The said circumstance runs heavily against accused
No.9. Hence this court is of the view that there are
sufficient materials to proceed against accused No.9 to
answer the charge of criminal conspiracy involving
accused Nos. 1 to 4 public servants and accused No.8 the
Manager of Heera Constructions Private Limited.
69. Point No.5:-
The contention of the petitioner is that there is no
material available on record to frame charges against
accused No.8. It is also contended that the prosecution
sanction granted in favour of the public servants arrayed
as the accused in this case is invalid. I have already come
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& O.P.(Crl) Nos.431 & 515 of 2022
..24..
to a finding that invalidity of the sanction being a mixed
question of fact cannot be agitated at this stage.
70....
71. It is true that at the direction of the Hon'ble High
Court, subsequently accepted by the Apex Court, an
occupancy certificate was granted to the building.
But the alleged criminal conspiracy involved in the
issuance of building permit was not an issue in the
said proceedings. Hence I hold that there are
sufficient materials to proceed against accused
No.8."
8. The learned counsel for accused No.1 made the
following submissions:-
The High Court on multiple occasions upheld the
validity of the building permit issued to the builder
finding that he had only acted bona fide. The charge to
implicate accused No.1 with criminal conspiracy to obtain
pecuniary advantage for himself and for the builder by
corrupt or illegal means is groundless. At the time of
issuing permit, the Town Planning Scheme relied on by
the prosecution was not in force. The 'Technical notes'
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& O.P.(Crl) Nos.431 & 515 of 2022
..25..
submitted by the subordinates of accused No.1 and the
endorsement of the same by him were presented before
the Special Committee in charge of the subject. Accused
No.1 discharged his official duties perfectly in accordance
with law.
9. The learned counsel for accused No.2 made the
following submissions:-
Accused No.2 joined as Town Planning Officer of the
Thiruvananthapuram Corporation only on 05.06.2004
whereas the decision of the Special Committee which
recommended issuance of permit was taken on
15.04.2004 itself. There is nothing in the materials
placed by the prosecution to implicate accused No.2 in
the conspiracy. At the most, the allegation against him
can only be treated as irregularity or omission on his part
in the discharge of his official duty. The absence of
sanction under Section 19 of the Prevention of Corruption
Act and Section 197 of the Cr.P.C. is fatal to the
prosecution as far as accused No.2 is concerned.
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& O.P.(Crl) Nos.431 & 515 of 2022
..26..
10. The learned counsel for accused No.8 made the
following submissions:-
There are no materials to establish that accused
No.8 colluded with the public servants as part of a
conspiracy. The competent authority in the Corporation
issued permit for the construction after complying with
all statutory formalities.
11. The learned counsel for accused No.9 made the
following submissions:-
The Town Planning Scheme for Museum-Kowdiar
Avenue framed by the Government vide G.O.(MS)
No.128/86 LAD dated 03.07.1986 is invalid after the
commencement of the 74th Constitutional amendment in
1983. Even if it is assumed that the 1986 DTP Scheme
was omitted to be noted by the accused it only amounts to
an omission to consider an ambiguous scheme, the
consequence of which would not attract any offence
under the PC Act. The second sanction to prosecute the
public servants is not legally valid. The prosecution has
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..27..
not placed any material to implicate the architect
(accused No.9) in the alleged conspiracy. The findings
recorded on the challenge of the validity of the permit
issued in favour of the builder obliterates the entire
prosecution allegations.
12. The learned Special Government Pleader Sri. A.
Rajesh submitted the following:-
The Town Planning Scheme as per G.O.(MS)
No.128/86 LAD dated 03.07.1986 was in force and the
building permits were issued by the respective local
authorities strictly in conformity with the DTP Scheme.
The prosecution has placed sufficient materials to
establish the conspiracy hatched by the public servants,
the builder and the architect. At the time of framing
charges, the Court is only required to see whether there
is a prima facie case against the accused or whether
there is a grave suspicion against them. In the revisional
jurisdiction, this Court is only required to ascertain
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& O.P.(Crl) Nos.431 & 515 of 2022
..28..
whether there is any patent illegality or error in the
impugned order.
13. Both sides placed numerous precedents in their
arguments. In the latter part of the judgment, I will only
refer to the precedents relevant to the subject matter.
14. Sections 239 and 240 of the Code of Criminal
Procedure deal with discharge and framing of charge.
15. The obligation to discharge the accused under
Section 239 Cr.P.C. arises when "the Magistrate considers
the charge against the accused to be groundless."
16. The primary consideration at the stage of
framing charge is the test of the existence of a prima
facie case. The probative value of materials on record is
not to be gone into at this stage.
17. While considering the nature of evaluation to be
made by the Court at the stage of framing charge, the
Apex Court in Onkar Nath Mishra and others v. State
(NCT of Delhi) and another [(2008) 2 SCC 561] held
that at the stage of framing charge the court is required
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& O.P.(Crl) Nos.431 & 515 of 2022
..29..
to evaluate the material and documents on record with a
view to finding out if the facts emerging therefrom, taken
at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage,
the court is not expected to go deep into the probative
value of the material on record. The Supreme Court
observed that what needs to be considered is whether
there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused
has been made out.
18. In State of Maharashtra v. Som Nath Thapa
[(1996) 4 SCC 659], the Apex Court observed that if on
the basis of materials on record, a court could come to
the conclusion that commission of the offence is a
probable consequence, a case for framing of charge
exists.
19. In State of M.P. v. Mohanlal Soni [(2000) 6
SCC 338] the Apex Court held that at the stage of framing
charge, the court has to prima facie consider whether
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& O.P.(Crl) Nos.431 & 515 of 2022
..30..
there is sufficient ground for proceeding against the
accused.
20. In Sheoraj Singh Ahlawat and others v. State
of Uttar Pradesh and another [(2013) 11 SCC 476], the
Apex Court observed that while framing charges the
Court is required to evaluate the materials and
documents on record to decide whether the facts
emerging therefrom taken at their face value would
disclose existence of ingredients constituting the alleged
offence. It was further held that the Court cannot
speculate into the truthfulness or falsity of the
allegations, contradictions and inconsistencies in the
statement of witnesses at the stage of discharge.
21. Section 239 envisages a careful and objective
consideration of the question whether the charge against
the accused is groundless or whether there is ground for
presuming that he has committed an offence. What
Section 239 prescribes is not, therefore, an empty or
routine formality. It is a valuable provision to the
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& O.P.(Crl) Nos.431 & 515 of 2022
..31..
advantage of the accused, and its breach is not
permissible under the law. But, if the Judge, upon
considering the records, including the examination, if any,
and the hearing, is of the opinion that there is "ground for
presuming" that the accused has committed the offence
triable under the chapter, he is required by Section 240 to
frame in writing a charge against the accused. The order
for framing of charge is also not an empty or routine
formality. It is of a far-reaching nature, and it amounts to
a decision that the accused is not entitled to discharge
under Section 239, that there is, on the other hand,
ground for presuming that he has committed an offence
triable under Chapter XIX and that he should be called
upon to plead guilty to it and be convicted and sentenced
on that plea, or face the trial. (See: V.C. Shukla v. State
through CBI [AIR 1980 SC 962]."
22. In Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Anil Kumar Bhunja
[(AIR 1980 SC 52)], the Apex Court stated thus:
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& O.P.(Crl) Nos.431 & 515 of 2022
..32..
"At this stage, even a very strong suspicion
founded upon materials before the Magistrate,
which leads him to form a presumptive opinion
as to the existence of the factual ingredients
constituting the offence alleged, may justify
the framing of charge against the accused in
respect of the commission of that offence."
23. In State by Karnataka Lokayukta, Police
Station, Bengaluru v. M.R.Hiremath [(2019) 7 SCC
515], the Apex Court observed that at the stage of
considering an application for discharge, the Court must
proceed on the assumption that the material which has
been brought on the record by the prosecution is true and
evaluate the material in order to determine whether the
facts emerging from the material, taken on its face value,
disclose the existence of the ingredients necessary to
constitute the offence.
24. In State through Deputy Superintendent of
Police v. R. Soundirarasu and Ors. (AIR 2022 SC
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& O.P.(Crl) Nos.431 & 515 of 2022
..33..
4218), while dealing with the scope of Section 239 Cr.P.C.
the Apex Court held that the stage of framing charge is
not a stage for weighing the pros and cons of all
implications of the materials nor for seeking the materials
placed by the prosecution.
25. Therefore, the obligation to discharge the
accused under Section 239 Cr.P.C. arises when the
Magistrate/Special Judge considers the charge against
the accused to be groundless, that is, there is no legal
evidence or when the facts are such that no offence is
made out at all and no detailed evaluation of the
materials or meticulous consideration of the possible
defences need be undertaken at this stage nor any
exercise of weighing materials in golden scales is to be
undertaken.
26. At the stage of framing charges, even a very
strong suspicion founded upon materials before the
Special Judge, which leads him to form presumptive
opinion as to the existence of the factual ingredients
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& O.P.(Crl) Nos.431 & 515 of 2022
..34..
constituting the offences alleged, may justify the framing of
charges.
27. Now, I turn to consider the facts of the case on
the touchstone of the principles discussed above. I shall
first consider the arguments raised by the counsel for
Accused No.9 that the DTP Scheme for Museum-Kowdiar
Avenue is invalid in the eye of law after the 74 th
amendment in the Constitution of India. The learned
counsel contended that with the insertion of part IX-A in
the Constitution the authority to propose Town Planning
Scheme is vested with the Municipalities and Municipal
Corporations. The crux of the argument is that the DTP
Scheme as per G.O.(Ms). No.128/86/LAD ceased to be in
force with the insertion of chapter IX-A in the
Constitution.
28. The Government of Kerala as per G.O.(MS).
No.128/1986/LAD, referred to above, has published a
detailed Town Planning scheme for the Museum-Kowdiar
Avenue to control the developments that are likely to
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& O.P.(Crl) Nos.431 & 515 of 2022
..35..
come up on either side of Museum- Kowdiar Avenue and
also to preserve the beauty of the avenue and the
premises. The Government and Thiruvananthapuram
Corporation are strictly following the Town Planning
Scheme which is evident from the decision of the
Government to cancel the permit issued to the builder
which was followed by the Corporation. Admittedly, the
Corporation strictly follows the DTP scheme in granting
permits for the construction of any building within the
area specified in the scheme. Therefore, the contention
that the DTP Scheme has no validity is not sustainable.
29. Now, I shall consider the challenge to the
impugned order and the charge based on the principle of
sanction.
30. It is submitted that once the appropriate
authority had declined the sanction, the sanction
subsequently accorded is not legally valid. Initially, the
competent authority declined to accord sanction to
prosecute the public servants. Based on that the
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& O.P.(Crl) Nos.431 & 515 of 2022
..36..
investigating agency submitted a refer report before the
jurisdictional Court. The defacto complainant challenged
the refer report before the Special Court. The Court
returned the refer report directing the investigating
agencies to place the entire records before the competent
authority to consider the matter afresh.
31. The competent authority after considering the
matter afresh accorded sanction to prosecute the public
servants. The investigating agency thereafter submitted
the final report against the public servants and the other
accused.
32. Relying on Chittaranjan Das v. State of
Kerala [2011 KHC 4567], the learned counsel for
accused No.2 submitted that when the sanction was
refused while the accused was in service, he cannot be
prosecuted later after retirement, eventhough no sanction
for prosecution under the PC Act was necessary after the
retirement of the public servant. In Chittaranjan Das
(Supra), the Vigilance Department asked the State
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& O.P.(Crl) Nos.431 & 515 of 2022
..37..
Government to grant sanction while the accused therein
was in service. The Government refused to accord
sanction to prosecute. The Vigilance sought for
reconsideration of the same, but the Government
rejected the request reiterating that there was no prima
facie case. The Vigilance thereafter waited till the
retirement of the accused and submitted final report. In
that factual basis, the Supreme Court held that in a case
where sanction sought was refused by the competent
authority while the public servant was in service, he
cannot be prosecuted later after retirement
notwithstanding the fact that no sanction for prosecution
under the PC Act was necessary after the retirement of
the public servant.
33. The facts in the present case are different from
the facts considered in Chittaranjan Das (Supra). In the
present case, the competent authority in the Government
refused sanction to prosecute the public servant including
accused No.2 which compelled the investigating agency
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..38..
to submit a refer report before the Trial Court. The Court
returned the refer report with a direction to place the
entire materials before the sanctioning authority to
reconsider the same. The competent authority in the
Government reconsidered the materials and found that
the public servants had to be prosecuted and accordingly
sanction was granted to prosecute them.
34. The learned counsel for the accused relied on
Bhargavan Pillai v. State of Kerala [2004 KHC 655] to
contend that the protection of Section 197 Cr.P.C. and
Section 19 of the PC Act is available even after the
retirement of the public servant as before retirement. A
Three-Judge Bench of the Supreme Court in Station
House Officer, CBI/ACB/Bangalore v. B.A.
Sreenivasan and Another [2019 KHC 7204] following a
series of precedents held that it was not justified to
observe that the protection available to a public servant
while in service would also be available after his
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& O.P.(Crl) Nos.431 & 515 of 2022
..39..
retirement (the position would be different after the
amendment of the PC Act in 2018).
35. The learned Special Government Pleader
further contended that if a public servant enters into a
criminal conspiracy or indulges in criminal misconduct,
such misdemeanour on his part is not to be treated as an
act in the discharge of his official duties, and therefore,
provisions of Section 197 of the Code will not be
attracted.
36. In Rajib Ranjan and others v. R.
Vijayakumar [2014 AIR SCW 5924], while interpreting
Section 197 Cr.P.C., the Apex Court held that if a public
servant enters into a criminal conspiracy or indulges in
criminal misconduct, such misdemeanor on his part is
not to be treated as an act in discharge of his official
duties, and therefore, Section 197 of the Code will not be
attracted.
37. Yet another aspect that requires consideration
is that the Trial Court has taken cognizance of the
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& O.P.(Crl) Nos.431 & 515 of 2022
..40..
offences and framed charges against them. With the
framing of charges, the trial has already commenced.
38. In the present case, the prosecution alleges
that the public servants entered into a criminal
conspiracy and committed criminal misconduct for which
no sanction under Section 197 is required. It is open for
the accused to raise the question of validity of sanction
during the trial and the trial Court is bound to consider
such a question at an appropriate stage. This view is
fortified by the decision of the Apex Court in Major
M.C.Ashish Chinnappa v. CBI [MANU/SCOR/32662/ 2021].
39. Now, I come to the merit of the other
contentions of the accused based on the prosecution
materials. Accused No.8 submitted an application for the
construction of an apartment complex having 14 floors
with a height of 36.45m and coverage of 68.8% of the
plot area having an extent of 30 cents of land in
Sy.No.3650/18-2/2-12 in Kowdiar Village, a portion of
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& O.P.(Crl) Nos.431 & 515 of 2022
..41..
which was also intended for commercial purpose, in the
name Heera Apartments.
40. As per G.O.M.S/128/08 dated 03.07.1986, the
Town Planning Scheme for Museum-Kowdiar Avenue was
in force in the area where the construction was
proposed. The DTP Scheme placed before the Court
would show that Sy.No.3650 of Kowdiar Village (old
Madathuvilakom Village) fell within the residential zone
of the DTP Scheme. (Page No.28 of the DTP Scheme).
41. On page No.17 of the DTP Scheme, zoning
regulation for residential zone is specified by which (a)
the height of the building is restricted to 7.5m above the
level of the central line of the road, (b) the maximum
coverage will be 30% of the plot area and (c) the number
of storeys is limited to 3 with a maximum height of 10.5
mts.
42. Prima facie, the application submitted by
accused No.8 for constructing a 14-storeyed building
with a height of 36.45 mts and coverage of 68.8% of the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..42..
plot area, a portion of which is also intended for
commercial purposes violates the DTP Scheme. Accused
No.1 was the District Planning Officer. The application
furnished by accused No.8 was forwarded to accused
No.4, the Building Inspector. He inspected the property
and reported that as per the master plan the proposed
site falls within the residential zone and the application
be placed before the Road Development Committee.
Accused No.4 intentionally suppressed the facts that the
DTP Scheme applies to the plot and recommended
placing the application before the Road Development
Committee. Charge witnesses 4, 5 and 6 deposed in
their statements recorded under Section 161 Cr.P.C. that
the existing town planning scheme in the city is printed
out in a booklet and available with Building Inspector,
Assistant Town Planning Officer and Town Planning
Officer. On 01.04.2004, accused No.3 directed accused
No.4 to prepare a technical report (note) to be placed
before the Road Development Committee (RDC for
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..43..
short). Accused No.4 prepared the same and forwarded
it to accused No.3. Accused No.3 approved the
technical note suppressing the violation of the DTP
Scheme and forwarded the same to Accused No.1.
Accused No.1 recommended the matter to be forwarded
to the Secretary. The Secretary approved the technical
note and recommended placing it before the Road
Development Committee. In the Technical Report, it was
specifically stated that there was no zonal regulation.
Accused Nos. 1, 3 and 4 were well aware of the fact that
the property comes within the DTP Scheme. They ought
not to have recommended placing the matter before the
RDC. They should have rejected the application then and
there. The Road Development Committee meeting was
held on 17.04.2004. Accused No.1 noted in the file as
follows:- "the Road Development Committee approved
and directed the TRIDA Secretary to inspect the site.
The report of TRIDA Secretary be obtained shortly. So
informed the party for obtaining the Fire NOC and
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& O.P.(Crl) Nos.431 & 515 of 2022
..44..
Airport NOC". The report of the TRIDA Secretary
regarding surrendering of the land was received only on
24.06.2004. But even before that 'fire NOC' dated
25.05.2004 and 'airport NOC' dated 24.04.2004 were
issued. The involvement of accused No.1 in the alleged
conspiracy is evident from his hasty decision.
43. Accused No.2 is the Successor-in-office of
accused No.1. The learned counsel for accused No.2
submitted that he joined the office only on 02.06.2004.
By that time, the Road Development Committee had
recommended the issuance of the permit subject to the
approval of the Secretary.
44. On 28.06.2004, accused No.2 noted in the
concerned file that the proposal for the construction of
13-storeyed residential flat satisfies the KMBR Rules and
all mandatory sanctions from the Fire Department, Civil
Aviation Department and proceedings of RDO regarding
land surrender. The fact that the proposed construction
was within the area covered by the DTP Scheme was well
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..45..
within the knowledge of accused No.2. He was well
aware of the fact the construction of the proposed
building was not permissible in the plot suggested.
There is clear suppression on the part of accused No.2
that the proposed site comes within the Detailed Town
Planning Scheme and Zone Regulations. Thus, the act of
accused No.2 is sufficient to create a very grave
suspicion against him in the participation of the
conspiracy. This is evident from his act of forwarding the
file suppressing the fact that the proposed construction
was within the DTP zone which resulted in the issuance
of the permit on 30.06.2004.
45. Accused No.8 is the Managing Director of
Heera Construction Company. On 28.11.2003, he
applied for permit before the Thiruvananthapuram
Corporation. The prosecution contends that accused
No.8 submitted an application knowing fully well that the
property is comprised in Survey No.3650 of Kowdiar
Village which falls within the residential zone of the DTP
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& O.P.(Crl) Nos.431 & 515 of 2022
..46..
Scheme. He is the sole beneficiary of the alleged illegal
acts done by the public servants.
46. Accused No.9 is a registered Architectural
Engineer. She certified in column No.14 of the
application for permit furnished by accused No.8 that the
building plan is prepared in accordance with the
provisions of the Kerala Municipality Building Rules,
1989, Kerala Municipality Act, 1994 and the provisions
contained in the sanctioned Town Planning Scheme and
Sanctioned Master Plan. In column No.15, she
undertook that the building construction/land
development would be carried out as per the approved
plan and permit in accordance with the rules in force in
her supervision. An approved Architectural Engineer is
expected to know that the property where the apartment
was to be constructed fell within the property covered by
the DTP Scheme.
47. The circumstances brought out on record
would indicate that accused Nos. 8 and 9 conspired
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& O.P.(Crl) Nos.431 & 515 of 2022
..47..
together with the other accused in obtaining the building
permit knowing fully well that the proposed construction
was within the prohibited area.
The impact of the judgments in W.P.(C)
Nos.7443 of 2006 dated 15.03.2006, 12669 dated
22.10.2007, 3804/2007 dated 27.06.2008.
48. The Senior Town Planner, Government of
Kerala had inspected the building while it was under
construction. He submitted a report to the Government
on 14.02.2005 stating that the permit for the building
was issued in violation of the DTP Scheme and Zoning
Regulations and as the proposed site was within the
heritage zone approval of the Heritage Commission
should have been obtained. The Town Planner further
reported that the building was found constructed in
violation of Rules 32, 39 and 50 of the Kerala
Municipality Building Rules. Therefore, the Senior Town
Planner recommended revoking the permit and stopping
the construction for further verification of the Chief Town
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..48..
Planner. Pursuant to the report of the Chief Town
Planner, the Government as per order dated 18.06.2005
sought explanation of the Corporation officials and
members of the Road Development Committee. The
prosecution has placed materials to show that in the
reply furnished by the Secretary, Thiruvananthapuram
Corporation on 02.07.2005, he had suppressed the fact
that the site of the building fell within the DTP Scheme
and tried to cover up the issuance of permit by stating
that another 14 storeyed building namely Heera Palace
was already constructed in 1997 very near to the alleged
building as per the permit issued by the Corporation.
49. The above facts indicate that the granting of
permit to accused No.8 was illegal and the construction
was unauthorised.
50. The de facto complainant filed W.P.(C) No.7443
of 2006 before this Court contending that the
Corporation permitted accused No.8 to effect the
construction in violation of the DTP Scheme. This Court
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..49..
dismissed the Writ Petition with the observation that if
the building is constructed not in conformity with the
Rules, the petitioner may seek his remedy by way of a
civil suit or before the statutory authorities as the case
may be.
51. When the Corporation refused to give
Occupancy Certificate to accused No.8, he filed W.P.(C)
No.12669 of 2007 before this Court.
52. In that Writ Petition, this Court directed the
Secretary to apply his mind and take a decision in the
matter in accordance with law. Accused No.8, thereafter,
filed W.P.(C) No.38047 of 2007 challenging the order of
the Secretary cancelling the building permit issued to
him.
53. This Court in W.P.(C) No.38047 of 2007
quashed the order cancelling the building permit with
the observation that the Special Committee ought to
have taken note of the violations at the time of granting
the permit. In the Writ Petition referred to above, this
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..50..
Court essentially considered the fact that the
Corporation itself had given a permit for the construction
of the building and the further fact that accused No.8
had completed the construction based on the building
permit.
54. The core question of whether there was a
criminal conspiracy involved in the issuance of the
building permit was not at all in the consideration of this
Court in those proceedings. Moreover, the Government
and the Corporation in the above-referred litigations
always took the stand that the building permit issued by
the Corporation was in violation of the DTP Scheme and
the relevant rules. It is important to note that the offence
was completed with the issuance of the building permit,
a period long before the institution of the Writ Petitions
before this Court. The fact that a Writ Court quashed the
order cancelling the permit to construct a building on a
limited ground would not nullify the commission of the
criminal offences which facilitated the issuance of the
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..51..
permit in violation of the Rules. Therefore, the decisions
in the Writ Petitions referred to above have no impact on
the criminal prosecution levelled against the accused.
Conspiracy
55. The learned counsel for the petitioners would
contend that the prosecution failed to bring out sufficient
materials to connect accused Nos.1 to 9 and the other
accused who face conspiracy charges.
56. Sections 120-A and 120-B of IPC read thus:
"120-A - Definition of criminal conspiracy.- When two or
more persons agree to do, or cause to be done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such
agreement in pursuance thereof.
120-B. Punishment of criminal conspiracy.- (1)
Whoever is a party to a criminal conspiracy to commit
an offence punishable with death, imprisonment for life
or rigorous imprisonment for a term of two years or
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..52..
upwards, shall, where no express provision is made in
this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such
offence.
(2) Whoever is a party to a criminal conspiracy other
than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with
imprisonment of either description for a term not
exceeding six months, or with fine or with both."
57. The essentials of an offence under the above
sections are as follows:-
(i) Existence of a design to commit an offence,
punishable with imprisonment;
(ii) Voluntary concealment of such design by the accused
either by act or omission or even by false
representation;
(iii) The accused knew or intended to facilitate the
commission of such offence."
58. In Saju v. State of Kerala [(2001) 1 SCC 378],
it was propounded that to attract Section 120-B IPC, it is
to be proved that all the accused had the intention and
they had agreed to commit the crime. It was assumed
that conspiracy is hatched in private and in secrecy, for
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..53..
which direct evidence would not be readily available. It
was ruled that it is not necessary that each member to a
conspiracy must know all the details of the conspiracy.
59. In Ram Narayan Popli v. CBI [(2003) 3 SCC
641], the Supreme Court reiterated that the essence of a
criminal conspiracy, is the unlawful combination and
ordinarily the offence is complete when the combination
is framed and that the law making conspiracy a crime is
designed to curb immoderate power to do mischief which
is gained by a combination of the means. It was held that
the offence of criminal conspiracy has its foundation in
an agreement to commit an offence. A conspiracy
consists not merely in the intention of two or more, but
in the agreement of two or more to do an unlawful act by
unlawful means. The agreement which is the
quintessence of criminal conspiracy can be proved either
by direct or by circumstantial evidence or by both and it
is a matter of common experience that direct evidence to
prove conspiracy is rarely available.
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..54..
60. In Yash Pal Mittal v. State of Punjab [(1977)
4 SCC 540] the Supreme Court held that there may be so
many devices and techniques adopted to achieve the
common goal of the conspiracy, and there may be
division of performances in the chain of actions with one
object to achieve the real end of which every collaborator
need not be aware but in which each one of them would
be interested. There must be a unity of object or purpose
but there may be plurality of means, sometimes even
unknown to one another, amongst the conspirators. The
only relevant factor is that all means adopted and illegal
acts done must be to fulfil the object of the conspiracy.
Even if some steps are resorted to by one or two of the
conspirators without the knowledge of the others, it will
not affect the culpability of those others when they are
associated with the object of the conspiracy.
61. In Rajeevkumar v. State of U.P. and
another [2017 KHC 6522], the Supreme Court held that
in some cases indulges in the illegal act or legal acts by
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..55..
illegal acts may inferred from the knowledge itself and
that it is extremely difficult to adduce direct evidence to
prove criminal conspiracy.
62. In Rajeevkumar, the Apex Court further held
that the existence of conspiracy and its objective can be
inferred from the surrounding circumstances and the
conduct of the accused.
63. The prosecution could prima facie establish
conspiracy among the accused on the touchstone of the
principles discussed above.
64. It is submitted that charges have already been
framed against most of the accused and they are
awaiting trial. When charges are framed and the
accused are awaiting trial, only in exceptional
circumstances, where it is convinced that the
continuation of the proceedings would result in the abuse
of law, the High Court will intervene (vide:- Supriya Jain
v. State of Haryana [(2023) 7 SCC 711].
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..56..
65. I am of the considered view that this Court is
not justified in interfering with the order impugned and
the charges framed.
The Crl.R.Ps and the Original Petitions stand
dismissed.
Sd/-
K.BABU, JUDGE
kkj
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..57..
APPENDIX OF OP(CRL.) 431/2022
PETITIONER EXHIBITS
Exhibit P1 PHOTOCOPY OF THE REFER REPORT IN VC
1/2010/SRT LODGED BY VACB (VIGILANCE &
ANTI-CORRUPTION BUREAU)
Exhibit P2 PHOTOCOPY OF THE FINAL REPORT / CHARGE
SHEET DATED 30.6.2014 WITH THE BRIEF
FACTS OF PROSECUTION CASE IN VC
1/2010/SRT LODGED BY VACB (VIGILANCE &
ANTI-CORRUPTION BUREAU)
Exhibit P3 CERTIFIED COPY OF THE COMMON ORDER
DATED 27.6.2022 IN CRL.M.P.
NO.928/2016 IN C.C. NO.15/2014 OF THE
ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, THIRUVANANTHAPURAM
Exhibit P4 CERTIFIED COPY OF THE CHARGE FRAMED IN
C.C. NO.15/2014 ON THE FILE OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE,
THIRUVANANTHAPURAM
Crl.R.P.No.580 &777 of 2022
& O.P.(Crl) Nos.431 & 515 of 2022
..58..
APPENDIX OF OP(CRL.) 515/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF JUDGMENT IN W.P.(C)
NO.38047/2007 DATED 27.6.2008 OF THE
HON'BLE HIGH COURT
Exhibit P2 TRUE COPY OF JUDGMENT IN W.A.
NO.1740/2007 DATED 14.1.2009 OF THE
HON'BLE HIGH COURT
Exhibit P3 TRUE COPY OF GOVERNMENT LETTER
NO.9469/D1/2012/VIG DATED 13.4.2012
REFUSING SANCTION SENT TO THE
DIRECTOR, V.A.C.B., THIRUVANANTHAPURAM
Exhibit P4 TRUE COPY OF REFER REPORT DATED
17.7.2012 OF THE DEPUTY SUPDT. OF
POLICE, V.A.C.B., SOUTHERN RANGE,
THIRUVANANTHAPURAM SUBMITTED BEFORE
THE COURT OF ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, THIRUVANANTHAPURAM.
Exhibit P5 TRUE COPY OF THE CHARGE SHEET/FINAL
REPORT DATED 30.6.2014 IN VC
1/2010/SRT
Exhibit P6 TRUE COPY OF THE COMMON ORDER DATED
27.6.2022 IN CRL.M.P.1334/2015 OF THE
COURT OF THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE, THIRUVANANTHAPURAM
Exhibit P7 TRUE COPY OF THE CHARGE IN C.C.
NO.15/2014 DATED 27.6.2022 ON THE FILE
OF COURT OF THE ENQUIRY COMMISSIONER
AND SPECIAL JUDGE, THIRUVANANTHAPURAM
