K.K.P. Lakshmanan vs State Of Kerala
2024 Latest Caselaw 29029 Ker

Kerala High Court

K.K.P. Lakshmanan vs State Of Kerala on 10 October, 2024

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             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

    THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946

                      CRL.MC NO. 3953 OF 2021

                CRIME NO.1/2012 OF VACB, KOZHIKODE

     AGAINST THE ORDER/JUDGMENT IN CC NO.84 OF 2016 OF ENQUIRY

COMR.& SPECIAL JUDGE,KZD.

PETITIONER/ACCUSED:

          K.K.P. LAKSHMANAN
          AGED 65 YEARS
          S/O A.V. SHEKARA PODUVAL, CHILANKA HOUSE,
          GRAMAM WEST POST, PAYYANNUR, KANNUR DISTRICT


          BY ADVS.
          O.V.MANIPRASAD
          JOSE ANTONY
          S.SHIV SHANKAR


RESPONDENT/STATE:

          STATE OF KERALA
          (DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI
          CORRUPTION BUREAU, KOZHIKODE)
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, PIN-682 011.


           BY ADV.A.RAJESH - SPECIAL PUBLIC PROSECUTOR (VIGILANCE)
              ADV.REKHA S. - SENIOR PUBLIC PROSECUTOR


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
10.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No. 3953 of 2021

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                              ORDER

Dated this the 10th day of October, 2024

Under challenge in this Miscellaneous Case is the Final Report in

Crime No.VC 01/2012 KKD of the V.A.C.B., Kozhikode unit, based

upon which, cognizance was taken by the Special Court,

Kozhikode as C.C.No.84/2016.

2. Heard the learned counsel for the petitioner and the

learned Special Public Prosecutor on behalf of the respondent.

3. Learned counsel would essentially raise five grounds to

challenge the Final Report. The first is that, no sanction under

Section 197 of the Code of Criminal Procedure is obtained before

taking cognizance, inasmuch as the offence under Section 384 of

the Penal Code is also canvassed. In elaboration of this ground, it

was pointed out that, though the offence under Section 384 is

referred to in Annexure-A1 F.I.R., the same has been obliterated

in Annexure-A2 Final Report. In Annexure-A2, the solitary offence

canvassed is under Section 13(1)(a), read with Section 13(2) of

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the Prevention of Corruption Act ('P.C.Act', for short).

Nevertheless, the Special Court took cognizance in respect of

offence under Section 384 of the Penal Code as well, as is seen

from the endorsement contained at the end of the Final Report

(see running page no.28 of the paper book). Thus, on the one

hand, learned counsel would point out that taking cognizance of

offence under Section 384 is bad in law; and on the other, it was

submitted that in case the offence under Section 384 is to be

canvassed, the same necessarily requires sanction under Section

197.

4. The second point canvassed is that, a preliminary enquiry

report, based upon which the crime was registered, has not been

produced along with the Final Report. It is not revealed as to who

conducted such preliminary enquiry. Nor is such officer cited as

a witness in the Final Report. Therefore, the F.I.R., now taken,

which culminated in the impugned Final Report, is a mushroom

F.I.R., liable to collapse on the ground of non-production of the

preliminary enquiry report. Learned counsel would heavily rely

upon a judgment of a learned Single Judge of this Court in

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Thankamma v. State of Kerala [2016 (1) KLT 228].

5. The third point canvassed is that, no specific favour, for

which bribe is allegedly collected, is referred to in the Final

Report. The same being an essential ingredient so as to

constitute the offence under Section 7, the Final Report is bad in

law for that reason also and hence liable to be quashed.

6. Although a ground to the effect that the investigation was

not conducted by an authorized officer is canvassed, learned

counsel for the petitioner would not press the same, in view of

the Government Order authorizing the Inspectors of the Police

Department as well to conduct investigation, as envisaged in the

Proviso to Section 17.

7. The last point canvassed is that the statements are not

recorded by the Investigating Officer, but by a Civil Police Officer

(C.P.O). A mere presence of the Investigating Officer while

recording statements will be in violation of Section 161 of the

Code of Criminal Procedure, for which reason also, the Final

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Report is liable to be quashed.

8. In answer to the above contentions, learned Special Public

Prosecutor would submit that sanction under Section 197 is not

required, inasmuch as the offence under Section 384 is not

canvassed in the Final Report. As regards sanction under Section

19, the submission of the learned Special Public Prosecutor is

that the petitioner was not a public servant, either at the time of

registration of the crime, or at the time of taking cognizance. The

legal question in this regard has been settled by the Hon'ble

Supreme Court in Abhay Singh Chautala v. C.B.I. [(2011) 7

SCC 141]. On the ground that the preliminary enquiry report is

not produced along with the final report, learned Special Public

Prosecutor would point out that, such defects, if any, can still be

cured by producing the same during the course of trial.

Thankamma (supra) was a case considered by this Court in

exercise of its appellate jurisdiction, wherein the investigating

agency failed to produce a complaint preferred by the defacto

complainant, as also, to examine the defacto complainant. In

appeal, this Court found that the same is a gross irregularity,

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leading such F.I.R. to be treated as a mushroom F.I.R., which will

collapse on that limited ground. According to the learned Special

Government Pleader, the said decision cannot be of any

assistance to the petitioner as of now, inasmuch as, the trial in

the instant Calendar Case has not even commenced. As regards

the final submission with respect to violation of Section 161 of

the Cr.P.C., it is a submission of the learned Special Public

Prosecutor that the statements of the witnesses were recorded

by the investigating officer himself, but was only scribed in the

hand writing of the Civil Police Officer concerned. The same will

not violate Section 161, is the submission.

9. Having heard the learned counsel appearing for the

respective parties, this Court finds little merit in the challenges

made in this Criminal Miscellaneous Case, except in respect of

the cognizance taken with respect to the offence under Section

384 of the Penal Code. This Court will first deal with the above

referred exception. It is not in dispute that the prosecution is not

canvassing the offence under Section 384 of the Penal Code, as

is clearly discernible from Annexure-A2 Final Report. The solitary

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offence which is seen stated therein is one under Section 13(1)

(a), read with Section 13(2) of the P.C. Act. It is true that the

offence under Section 384 of the Penal code is canvassed in

Annexure-A1 F.I.R. However, after investigation, prosecution has

done away with that offence. In such circumstances, the

cognizance taken by the Special Court also with respect to the

offence under Section 384 of the Penal Code is wholly illegal. It is

the submission made by the learned counsel for the petitioner

that such cognizance was taken, even after the anomaly was

brought to the notice of the Special Court, which contention, if

true, is a matter of serious concern. Be that as it may. At any

rate, such cognizance cannot survive the test of law and

therefore, cognizance taken with respect to the offence under

Section 384 of the Penal Code will stand quashed hereby.

10. Regarding the rest of the allegations, as rightly pointed out

by the learned Special Public Prosecutor, the sanction under

Section 197 of the Code is not required, so long as the offence

under Section 384 is not canvassed. As regards the failure to

produce the preliminary enquiry report along with the Final

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Report, this Court can only endorse the submission made by the

Special Public Prosecutor, that such defect can still be cured by

producing the same during the course of trial or before that.

Thankamma (supra) cannot come to the rescue of the

petitioner at this stage, inasmuch as, this Court was considering

an appeal from a conviction therein. As pointed out, neither the

complaint preferred by the defacto complainant was produced

before the trial court, nor was the defacto complainant

examined. Such a situation has not arisen so far in the instant

facts. Therefore, contention based on Thankamma (supra) also

cannot be pressed into service to assail Annexure-A2 Final

Report. Coming to the allegation that no specific favour has been

referred to in the Final Report in terms of Section 7, the answer

lies in the definition of Section 13(1)(a), which is the solitary

offence canvassed in the Final Report, with the support of

Section 13(2). Section 13(1)(a) speaks of a person habitually

accepting or obtaining any gratification other than legal

remuneration for himself or for any other person as a motive or

reward such as in mentioned in Section 7. In the Final Report, it

is specifically stated that the petitioner by abusing his official

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position has habitually demanded and accepted bribe for himself

in various occasions from various persons, who were included in

criminal cases registered in Payyoli Police Station and others.

Having stated thus far, the rest of the particulars is a matter for

evidence to be adduced during trial, more so, when the

allegation is not in respect of a single instance, but of a habitual

conduct of demand and acceptance of bribe. In each case, what

was the motive or the reward and who were the persons against

whom such demand were made and in respect of what favours

etc., are matters to be elicited during the course of trial. In short,

the same is also not a ground to quash the Final Report.

11. Coming to the final ground, as regards the alleged violation

of Section 161 of the Cr.P.C., this Court is of the opinion that, it is

premature to make any opinion on that ground at this stage. On

the one hand, it is alleged that the statements are not recorded

by the Investigating Officer, but by the C.P.O. concerned. On the

other hand, the Special Public Prosecutor would submit that, the

statements were in fact recorded by the investigating officer

himself, but was merely scribed in the handwriting of the C.P.O.

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concerned. This was a contention which has to be addressed on

merits and facts by the Special Court concerned, at the first

instance. Any expression of opinion on the same at this stage is

likely to prejudice one of the parties. Suffice to observe that the

said ground, by itself, will not constitute the sufficient ground to

quash the Final Report.

12. In the circumstances, this Criminal Miscellaneous Case

fails. However, the cognizance taken by the Special Court with

respect to the offence under Section 384 of the Penal Code will

stand quashed.

The Criminal Miscellaneous Case will stand disposed of,

accordingly.

Sd/-

C. JAYACHANDRAN JUDGE TR

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PETITIONER ANNEXURES

Annexure A1                A TRUE COPY OF THE FIR AND FIRST
                           INFORMATION STATEMENT DATED 12.1.2012
                           IN FIR NO VC 1/20212 KKP OF VACB UNIT,
                           KOZHIKODE

Annexure A2                A TRUE COPY OF THE FINAL REPORT DATED
                           3.8.2016 FILED IN FIR NO VC 2/2012 KKD
                           OF VACB UNIT, KOZHIKODE

Annexure A3                TRUE COPIES OF THE STATEMENTS OF
                           WITNESSES CWS 5.6.7,8,9 AND 10