Kerala High Court
Korah.A.G vs State Of Kerala on 27 March, 2025
2025:KER:26691
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947
CRL.REV.PET NO. 921 OF 2019
AGAINST THE COMMON JUDGMENT DATED 31.05.2019 IN
CR.M.P.NOS.660 AND 982 OF 2018 IN CC NO.40 OF 2015 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
REVISION PETITIONER/ACCUSED:
KORAH.A.G
AGED 58 YEARS
S/O. A.K GEORGE, ADDITIONAL DIRECTOR OF MINING
AND GEOLOGY (RETIRED), ANTHERIL HOUSE,
MOOLAVATTOM P.O, KOTTAYAM, PIN - 686 026.
BY ADVS.
C.S.MANU
SRI.S.K.PREMRAJ
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL
CELL, ERNAKULAM, PIN 682 011 (NOTICE TO WHOM
MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM - 682 031.
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Crl.R.P.No.921 of 2019 and
W.P.(C) No.27530 of 2019
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 24.02.2025, ALONG WITH WP(C).27530/2019,
THE COURT ON 27.03.2025 DELIVERED THE FOLLOWING:
2025:KER:26691
3
Crl.R.P.No.921 of 2019 and
W.P.(C) No.27530 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947
W.P.(C) NO. 27530 OF 2019
PETITIONER:
KORAH.A.G
AGED 59 YEARS
S/O. A.K GEORGE, ADDITIONAL DIRECTOR OF MINING
AND GEOLOGY (RETIRED), ANTHERIL HOUSE,
MOOLAVATTOM P.O, KOTTAYAM - 686 026.
BY ADVS.
C.S.MANU
SRI.S.K.PREMRAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
TO THE GOVERNMENT OF KERALA, DEPARTMENT OF HOME
AND VIGILANCE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695 001.
2 DIRECTOR OF VIGILANCE,
VIGILANCE AND ANTI CORRUPTION BUREAU,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM,
PIN - 695 001.
3 SUPERINTENDENT OF POLICE,
VACB, SPECIAL CELL, ERNAKULAM, PIN - 682 018.
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Crl.R.P.No.921 of 2019 and
W.P.(C) No.27530 of 2019
SMT REKHA S, SR PUBLIC PROSECUTOR
SRI A RAJESH, SPL PUBLIC PROSECUTOR (VIG)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 24.02.2025, ALONG WITH Crl.Rev.Pet.921/2019,
THE COURT ON 27.03.2025 DELIVERED THE FOLLOWING:
2025:KER:26691
5
Crl.R.P.No.921 of 2019 and
W.P.(C) No.27530 of 2019
P.G. AJITHKUMAR, J. "C.R."
-----------------------------------------------------------
and
-----------------------------------------------------------
Dated this the 27th day of March, 2025
ORDER/JUDGMENT
The accused in C.C.No.40 of 2015 pending before the
Court of Enquiry Commissioner and Special Judge, Kottayam
has filed the revision petition as well as the writ petition. In
the revision petition he challenges the common order of the
Special Court dismissing two petitions the petitioner has filed;
both seeking discharge under Section 239 of the Code of
Criminal Procedure, 1973 (Code). Only that additional
grounds are canvassed in the second petition. In the writ
petition, he seeks the following reliefs:
"(i) Issue a writ of mandamus or any other appropriate writ,
order or direction, directing the 2nd respondent to take up,
consider and pass orders on Ext.P6 representation ordering
further investigation in C.C.No.40 of 2015 on the files of the
Court of the Enquiry Commissioner and Special Judge,
Kottayam as per Section 173(8) of the Cr.P.C. 1973,
regarding income of the petitioner during the check period
reflected in Ext.P3;
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Crl.R.P.No.921 of 2019 and
(ii) Issue a writ of mandamus or any other appropriate writ,
order or direction, directing the respondents 2 and 3 to
conduct further investigation in C.C.No.40 of 2015 on the
files of the Court of the Enquiry Commissioner and Special
Judge, Kottayam as per Section 173(8) of the Cr.P.C. 1973
regarding the income of the petitioner during the check
period reflected in Ext.P3."
2. The petitioner was a Senior Geologist in the Mining
and Geology Department, State of Kerala. Crime, VC-02/
2011/SCE was registered alleging that he has committed an
offence punishable under Section 13(1)(e) read with Section
13(2) of the Prevention of Corruption Act, 1988 (PC Act). The
allegation then was that during his tenure as a public servant
from 01.12.2000 to 24.11.2009, he amassed wealth to a tune
of Rs.28,70,971/-, which was disproportionate to his known
sources of income. After investigation, a final report was filed
wherein it has been alleged that during the check period, i.e.,
from 01.12.2000 to 22.06.2011, the petitioner acquired
assets worth Rs.54,32,686.27/- and 587.121 grams of gold
ornaments, which was disproportionate to his known sources
of income, for which he could not satisfactorily account.
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Crl.R.P.No.921 of 2019 and
3. Before the Special Court, the petitioner has filed
Crl.M.P.Nos.660 of 2018 and 982 of 2018, both seeking
discharge. The Special Court after hearing the prosecution
and the defence and also considering the materials produced
by the prosecution held that there was sufficient grounds to
proceed against the petitioner and to frame a charge. Those
petitions were accordingly dismissed. He calls in question the
said order in the revision petition.
4. In the meantime, the petitioner filed the writ
petition, which he got amended subsequently. Several legal
and factual grounds are raised in the writ petition. Apart from
the illegality and irregularity in the investigation,
incompetency of the officers who conducted investigation, lack
of sanction for prosecution, refusal to abide by the provisions
in the amended PC Act and the non-consideration and non-
production of all the documents along with the final report,
particularly, those submitted by the petitioner are set forth as
grounds necessitating a further investigation.
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Crl.R.P.No.921 of 2019 and
5. A statement of the investigating officer along with
Annexures R1(a) to R1(d) were placed on record in the
Crl.R.P. A statement and an additional statement of the
investigating officer were placed on record in the writ petition.
More or less similar contentions are set forth in both these
statements.
6. Heard the learned counsel for the petitioner, the
learned Senior Public Prosecutor and learned Special Public
Prosecutor (Vigilance).
7. The petitioner produced a few documents in the
writ petition and the respondents produced a few documents
in the revision petition. Documents are referred to hereunder
in the order those are marked in the respective proceedings.
8. Upto what stage of a criminal proceedings the
Magistrate wields power to order a further investigation has
been considered by the Apex Court in Vinubhai Haribhai
Malaviya v. State of Gujarat [(2019) 17 SCC 1]. The
three-Judge Bench held that a Magistrate can order further
investigation at any time before the trial has been
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Crl.R.P.No.921 of 2019 and
commenced. Paragraph No.42 of the judgment is extracted
below:
"42. There is no good reason given by the Court in these
decisions as to why a Magistrate's powers to order further
investigation would suddenly cease upon process being
issued, and an accused appearing before the Magistrate,
while concomitantly, the power of the police to further
investigate the offence continues right till the stage the trial
commences. Such a view would not accord with the earlier
judgments of this Court, in particular, Sakiri Vasu v. State of
U.P. and Ors. (2008) 2 SCC 409, Samaj Parivartan
Samudaya and Ors. v. State of Karnataka and Ors. (2012) 7
SCC 407, Vinay Tyagi v. Irshad Ali and Ors. (2013) 5 SCC
762, and Hardeep Singh v. State of Punjab and Ors. (2014)
3 SCC 92 having clearly held that a criminal trial does not
begin after cognizance is taken, but only after charges are
framed. What is not given any importance at all in the
recent judgments of this Court is Article 21 of the
Constitution and the fact that the Article demands no less
than a fair and just investigation. To say that a fair and just
investigation would lead to the conclusion that the police
retain the power, subject, of course, to the Magistrate's nod
under Section 173(8) to further investigate an offence till
charges are framed, but that the supervisory jurisdiction of
the Magistrate suddenly ceases midway through the pre-
trial proceedings, would amount to a travesty of justice, as
certain cases may cry out for further investigation so that
an innocent person is not wrongly arraigned as an accused
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Crl.R.P.No.921 of 2019 and
or that a prima facie guilty person is not so left out. There is
no warrant for such a narrow and restrictive view of the
powers of the Magistrate, particularly when such powers are
traceable to Section 156(3) read with Section 156(1),
Section 2(h), and Section 173(8) of the CrPC, as has been
noticed hereinabove, and would be available at all stages of
the progress of a criminal case before the trial actually
commences. It would also be in the interest of justice that
this power be exercised suo motu by the Magistrate himself,
depending on the facts of each case. Whether further
investigation should or should not be ordered is within the
discretion of the learned Magistrate who will exercise such
discretion on the facts of each case and in accordance with
law. If, for example, fresh facts come to light which would
lead to inculpating or exculpating certain persons, arriving
at the truth and doing substantial justice in a criminal case
are more important than avoiding further delay being
caused in concluding the criminal proceeding, as was held in
Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.
(2004) 5 SCC 347. Therefore, to the extent that the
judgments in Amrutbhai Shambhubhai patel v. Sumanbhai
Kantibhi Patel (2017) 4 SCC 177, Athul Rao v. State of
Karnataka and Anr. (2018) 14 SCC 298 and Bikash Ranjan
Rout v. State through the Secretary (Home), Government of
NCT of Delhi (2019) 5 SCC 542 have held to the contrary,
they stand overruled. Needless to add, Randhir Singh Rana
v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta
Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also
stand overruled."
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Crl.R.P.No.921 of 2019 and
9. In this case, although the petitions seeking
discharge were dismissed, no charge has been framed against
the petitioner, meaning thereby trial of the case is not
commenced yet. Therefore, a further investigation in the
matter could be ordered. Whether such a further investigation
is required in this case has to be considered in the light of the
rest of the contentions of the parties.
10. Ext.P1 is a copy of the final report. The petitioner
states that he has submitted statements regarding his assets,
sources of income, etc. in the prescribed proforma, through his
superior officer in pursuance to a direction of the investigating
officer. Ext.P2 is a copy of the letter of the investigating officer.
Ext.P3 series are copies of various statements and documents
the petitioner has submitted. The grievance of the petitioner is
that the investigating officer did not consider those statements or
records and filed the final report in a total disregard of such
statements and records. None of such statements or records has
been produced along with the final report also. It is alleged that
thereby, the process of investigation is defective and the final
2025:KER:26691
Crl.R.P.No.921 of 2019 and
report is vitiated. The petitioner claims that a further
investigation in the matter is therefore absolutely necessary.
11. The learned Special Public Prosecutor at the outset
raised a contention that having the Special Court dismissed
the applications of the petitioner seeking discharge, no further
investigation as contemplated in Section 173(8) of the Code
can be ordered. When the trial court is disabled from ordering
a further investigation at such a stage, this Court is also not
expected to do so. Insufficiency of grounds to order a further
investigation has also been highlighted.
12. Going by the allegations in the final report the
petitioner acquired disproportionate assets worth
Rs.54,32,686.27/- and 587.121 grams of gold ornaments.
According to the prosecution, that is 85.12% more than his
known sources of income. He would, however, contend that
the investigating agency neither considered the documents
furnished by him, nor produced them before the court, which
is their obligation in view of Rule 19 of the Criminal Rules of
Practice, Kerala 1982.
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Crl.R.P.No.921 of 2019 and
13. The final report was submitted before the Special
Court on 16.09.2015. The crime was registered on
20.06.2011. In answer to Ext.P2, the petitioner claimed to
have submitted the details in the prescribed proforma on
21.05.2012. The petitioner would urge that the investigating
agency did not enquire about correctness of the sources of
various items of income mentioned in Ext.P3 with the result
an incorrect final report was happened to be filed. The
petitioner would maintain that each item of the income was
supported by documents, which were also submitted along
with Ext.P3. It is alleged that no such document was verified.
It is his definite version that the total income he had during
the check period was Rs.1,51,31,853.26/- as against the
income assessed by the prosecuting agency as
Rs.1,18,14,497.27/-. The petitioner enlisted in the petition
various items of income which escaped notice of the
investigating agency, which are item Nos.16 to 18, 23, 28, 30,
33 to 37, 39 and 40 in Ext.P3. The petitioner also contended
that he obtained a few more items of income which he failed
2025:KER:26691
Crl.R.P.No.921 of 2019 and
to mention in Ext.P3. Highlighting such an omission on the
part of the investigating agency the petitioner seeks to have a
further investigation.
14. The stand taken by the learned Special Public
Prosecutor is that all sources of income which the petitioner
reported to the employer or to the income tax authorities
were taken into account. The claims set forth by the petitioner
in Ext.P3 were also verified during investigation, but the
unsubstantiated items were not accepted. It is further
submitted that the investigating agency was unable to accept
the sources of income which were not reported to the
employer or shown in the income tax statements, as known
sources of income and therefore, the contention of the
petitioner that every item mentioned by him in Ext.P3 should
have been considered, cannot be countenanced.
15. The learned counsel for the petitioner would
submit, in the above regard, that the amendment brought
about to Explanation-2 to Section 13(1) of the PC Act is only
explanatory in nature and should be applied retrospectively.
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Crl.R.P.No.921 of 2019 and
In that view, the omission on the part of the investigating
agency to reckon with the sources of income pointed out by
the petitioner has the inevitable effect of vitiating the
investigation altogether.
16. The learned counsel in this regard placed reliance
on Vishal Agrawal v. Chhattisgarh State Electricity
Board [(2014) 3 SCC 696]. Amendment to Section 151 of
the Electricity Act, 2003 was in question. The change brought
about was concerning the method of taking cognizance of the
offence under the Electricity Act. The amendment enables
police investigation and filing of final reports. The Apex Court,
after analysing the relevant provisions, held that the said
amendments were concerning procedural aspects and
clarificatory in nature. It was in that context, it was held that
the amendments have retrospective effect.
17. The question concerning retrospective application
of Section 17A of the PC Act was considered by the Apex
Court in State of Rajasthan v. Tejmal Choudhary [2022
(2) KHC 49]. The said provision was added with effect from
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Crl.R.P.No.921 of 2019 and
26.07.2018. The Apex Court held that Section 17A of the PC
Act was not a mere procedural aspect and could have only
prospective application. It was observed that the intention of
the Legislature to bring in that provision is quite clear and it
could not be interpreted in such a way as to render every
investigation conducted before adding Section 17A in the PC
Act infructuous. The rationale to take such a decision is
mentioned in paragraph No.7 of the judgment, which reads as
follows:
"7. It is a cardinal principle of construction that every statute
is prospective, unless it is expressly or by necessary
implication made to have retrospective operation. There is a
presumption against retrospectivity. An express provision
should ordinarily be made to make a statute retrospective.
The presumption against retrospectivity may also be rebutted
by necessary implication as held by this Court in Akram Ansari
v. Chief Election Officer reported in (2008) 2 SCC 95, which
has been referred to and relied upon by the Kerala High Court
in its judgment in K.R. Ramesh v. Central Bureau of
Investigation and Another reported in 2020 SCC Online Kerala
2529. The device of a legal fiction can also be used to
introduce retrospective operation. Generally, it is considered
that every statute dealing with substantive rights is prima
facie prospective unless it is expressly or by necessary
implication made retrospective."
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Crl.R.P.No.921 of 2019 and
18. The said analogy is applicable to Explanation-2 to
Section 13(1) of the PC Act also. Before the amendment,
Explanation was as follows:
"Explanation.- For the purposes of this section, "known
sources of income" means income received from any lawful
source and such receipt has been intimated in accordance
with the provisions of any law, rules or orders for the time
being applicable to a public servant."
The amended Explanation-2 reads as follows:
"Explanation 2.- The expression "known sources of income"
means income received from any lawful sources."
19. Even if receipt of any income has not been
intimated in accordance with the provisions of any law, rules
or orders applicable to the public servant, such income can be
reckoned with during investigation after the amendment. That
is a right provided to an incumbent. It is not merely a
procedural provision. Hence it cannot have a universal
retrospective application. All the same, having it created a
right in favour of an accused, he may be able to claim its
benefit in a way as is possible in a proceedings before the
court. But, he cannot ask for the investigating agency to clock
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Crl.R.P.No.921 of 2019 and
back the process. In a case where the investigation was
already concluded and final report filed before the introduction
of the new Explanation, the accused cannot ask to conduct a
further investigation.
20. This Court in Ramesh K.R. and others v. Central
Bureau of Investigation and another [2020 (4) KHC
220] considered a similar question. There the contention was
that having Section 13(1)(d) been deleted from the PC Act,
the prosecution for an offence under the said provision was
not possible. The principle of retrospective operation was
canvassed to take such a view. This Court held that Section
13(1)(d) was retained in the provision in a different form in
Section 7. That apart, it was held that the amendment was
introduced much after the final report was laid, and therefore,
the plea for retrospective operation could not be
countenanced.
21. The broader aspect of non-consideration of a few
documents by the investigating agency during investigation
and its consequences were considered by the Apex Court in
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Crl.R.P.No.921 of 2019 and
State of M.P. v. Virender Kumar Tripathi [(2009) 15 SCC
533]. The view taken by the Three-Judge Bench of the Apex
Court is that the plea related to non-consideration of
documents during investigation, which is unrelated to an
illegality of the investigation, could not be a ground to quash a
final report. It was held that the consequence of non-
consideration of a few matters or documents during
investigation is connected to the question of prejudice, which
are matters of evidence. Paragraph Nos.11 to 13 of the
judgment are extracted below:
"11. xx xx The broader issues raised need not be looked into.
The function of investigation was merely to collect evidence
and any irregularity and illegality in the course of collection of
evidence can hardly be considered by itself to affect legality of
trial by a competent Court of the offence so investigated.
12. In H.N.Rishbud and Anr. v. State of Delhi (AIR 1955 SC
196), it was observed that a conviction is not violated because
there has not been strict compliance with the provisions of the
Act in the matter of investigation by a police officer unless the
accused is shown to have been prejudiced. There is no
material to show prejudice. The proceedings started in 1987.
FIR was registered on 22.2.1991. In 1992, the accused filed a
petition before the High Court. Charge Sheet was filed on
21.12.1993. On 30.8.2000, the petition filed before the High
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Crl.R.P.No.921 of 2019 and
Court was disposed of. There was no challenge at that stage to
legality of investigation and related to consideration of certain
documents. Learned Special Judge considered the matter
afresh and rejected accused's plea. Again, the High Court was
moved. Only the plea related to non-consideration of
documents during investigation and did not relate to legality of
investigation. So, the present stand without establishing any
prejudice deserves to be rejected.
13. So far as the exclusion of certain alleged income of
relatives is concerned, it needs to be noted that these are
matters of evidence and in such matters, the decision of this
Court in State of Orissa v. Debendra Nath Padhi [JT 2004(10)
SC 303] is relevant. The High Court's judgment in this aspect
does not suffer from any infirmity."
22. The respondents took a definite stand that all the
documents and details furnished by the petitioner were looked
into. It is pointed out that the statements of the petitioner
were recorded during investigation on various dates, such as
25.10.2011, 22.02.2012, 21.03.2012 and 19.09.2013. After
verifying all the data furnished by the petitioner alone, the
final report was submitted. The learned Special Public
Prosecutor conceded that a few of the documents made
available by the petitioner were not appended to the final
report. That was for the reason that all such documents were
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Crl.R.P.No.921 of 2019 and
not genuine or reliable. I am not expected to make any
comment on that aspect at this stage for, any finding in that
regard would be peremptory and affect the petitioner
prejudicially. While refraining from making any further
observations regarding the contentions concerning the
omitted items of income, which are narrated in the writ
petition, I may point out that the petitioner disclosed those
sources of income only after registration of the crime. Be that
as it may, in the light of the propositions of law made mention
of above, the contention of the petitioner that there shall be a
further investigation on account of non-consideration of a few
sources of income and the documents he had mentioned in
Ext.P3 is untenable.
23. Another contention raised by the petitioner is that
the investigation was conducted by Inspectors of Police, but
they were not authorised as contemplated in Section 17 of the
PC Act. Section 17 insists that an investigation into an offence
under the PC Act should be conducted by a Deputy
Superintendent of Police or police officer of equivalent rank. It
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Crl.R.P.No.921 of 2019 and
is, however, provided that a police officer not below the rank
of an Inspector of Police can be authorised to investigate by
the State Government. The respondent produced Ext.R1(d)
series by which respective Inspectors of Police were
authorised to investigate in this case. Of course, those orders
were issued by the Superintendent of Police, VACB,
Ernakulam. When such an order was issued in exercise of the
powers under Section 17 of the PC Act the same amounts to
valid authorisation and the contention of the petitioner in this
regard cannot be accepted. Further, investigation by a lower
rank officer is an irregularity and on account of such an
irregularity alone, the investigation will not be illegal. The
Apex Court in Vinod Kumar Garg v. State (Government of
National Capital Territory of Delhi) [(2020) 2 SCC 88]
held as follows:
"27. The last contention of the appellant is predicated on
Section 17 of the Act and the fact that the investigation in
the present case was not conducted by the police officer
by the rank and status of the Deputy Superintendent of
Police or equal, but by Inspector Rohtash Singh (PW-5)
and Inspector Shobhan Singh (PW-7). The contention has
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Crl.R.P.No.921 of 2019 and
to be rejected for the reason that while this lapse would
be an irregularity and unless the irregularity has resulted
in causing prejudice, the conviction will not be vitiated and
bad in law. The appellant has not alleged or even argued
that any prejudice was caused and suffered because the
investigation was conducted by the police officer of the
rank of Inspector, namely, Rohtash Singh (PW-5) and
Shobhan Singh (PW-7).
28. This Court in Ashok Tshering Bhutia v. State of Sikkim,
(2011 ) 4 SCC 402 referring to the earlier precedents has
observed that a defect or irregularity in investigation
however serious, would have no direct bearing on the
competence or procedure relating to cognizance or trial.
Where the cognizance of the case has already been taken
and the case has proceeded to termination, the invalidity
of the precedent investigation does not vitiate the result,
unless a miscarriage of justice has been caused thereby.
Similar is the position with regard to the validity of the
sanction. A mere error, omission or irregularity in sanction
is not considered to be fatal unless it has resulted in a
failure of justice or has been occasioned thereby. Section
19(1) of the Act is matter of procedure and does not go to
the root of the jurisdiction and once the cognizance has
been taken by the court under the Code, it cannot be said
that an invalid police report is the foundation of
jurisdiction of the court to take cognizance and for that
matter the trial."
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24. In the above view of the matter, the petitioner is not
entitled for a discharge. A further investigation in the matter is
not called for on that ground also. The learned counsel for the
petitioner pointed out that in a similar circumstance the
Government had ordered further investigation as evidenced by
Ext.P7 and therefore it is necessary and apposite to allow his plea
for a further investigation. The petitioner had submitted Ext.P8
representation to the 1st respondent as early as on 05.02.2021
for that purpose. It is true that a further investigation was
ordered by the Government vide Ext.P7 order even after
submitting the final report before the jurisdictional court. But that
was in consideration of the facts and circumstances of that case.
Here is a case where the final report was submitted before the
court on 16.09.2015. The Special Court considered the plea of the
petitioner for discharge and repelled. I held hereinbefore that the
petitioner could not substantiate sufficient reason to order a
further investigation. In such circumstances the petitioner cannot
fall upon Ext.P7 to impell this Court to order a further
investigation.
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Crl.R.P.No.921 of 2019 and
25. The Apex Court in Ashok Tshering Bhutia v.
State of Sikkim [(2011) 4 SCC 402] considered the impact
of non consideration of documents concerning
income/expenditure, on the ground that the same were not
submitted in compliance of the mandatory provisions in the
Service rules. The learned counsel for the petitioner
strenuously urged that the view taken in that decision is
applicable in this case also. That was a case where the
appellant was convicted after a duly constituted trial. A few
items of income of the appellant, regarding which evidence
was adduced by him were not taken into account on the
ground that sources of such income were not reported to the
employer as insisted by the mandatory provisions of the
service rules. The Apex Court held that non-filing of statements
regarding the sources of income in accordance with the
mandatory service rule concerned may render the incumbent for
disciplinary proceedings under service jurisprudence, but that
would not be a ground for rejecting the evidence in that regard
without being examined at the trial.
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26. I have pointed out above the view taken by the Apex
Court in Virender Kumar Tripathi (supra) that even in a case
where the investigation failed to place on record documents
concerning some items of income of the accused, the prosecution
would not ipso facto be vitiated. That is a matter for evidence
and the consequence is relative of the possible prejudice to the
accused. Therefore, the law laid down in Ashok Tshering
Bhutia (supra), which was in a post-conviction scenario, cannot
be applied to this case, particularly to support a plea for ordering
further investigation.
27. The learned counsel for the petitioner next
submitted that if a public servant is to be prosecuted after
four years of the date of superannuation, sanction from the
Government is mandatory in view of the proviso to Rule 3,
Part III of the Kerala Service Rules (KSR) and for want of such
a sanction, the prosecution of the petitioner is bad in law. The
proviso to Rule 3 imposes such a restriction. True, no sanction
was obtained from the Government also as contemplated in
the proviso to Rule 3, Part III of the KSR.
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28. First of all, the judicial proceedings mentioned in
Rule 3 does not take in its fold a prosecution for an offence
under the PC Act. That is a proceedings concerning a loss
caused to the Government on account of the misconduct of
the pensioner. That apart, when the PC Act contemplates
obtaining sanction for prosecution in a particular manner, that
would govern the field and a provision in another statute
cannot be read into as a means of protection from
prosecution. This aspect was dilated by this Court in
Sivadasan Pillai and others v. State of Kerala and others
[2019 (4) KHC 529]. After considering the relative
legislative powers of the Centre and the State and also the
method of resolution contained in Article 251 of the
Constitution of India in the event of inconsistency, it was held
that a prosecution under the provisions of the PC Act must be
governed by that Act itself. Such a prosecution cannot be
controlled by the provisions of any special or local law by way
of protection or immunity from prosecution. A public servant
facing prosecution under the PC Act cannot therefore resort to
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a provision in another special or local law to claim protection
from prosecution. Hence, the contention of the petitioner in
this regard can only be rejected.
29. Another reason urged by the petitioner to order
further investigation is that Rule 19 of the Criminal Rules of
Practice, Kerala, 1982 could not be complied with inasmuch as
all the documents collected by the prosecution were not
submitted before the court. Sub-rule (4) of Rule 19, which
was inserted with effect from 19.05.2022 insists on supplying,
in addition to the statement of witnesses recorded and a list
of documents as are mentioned in Sections 173, 207 and 208
of the Code and a list of material objects, a list of statements,
documents and material objects that are not relied upon by
the investigating officer. When Sub-rule (4) of Rule 19 was
brought to the Statute book only on 19.05.2022 the petitioner
cannot be heard to contend that for non-production of the list
of statements, documents and material objects, which are not
relied upon by the investigating officer along with a final
report filed as early as on 16.09.2015, there should be a
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further investigation. If so advised, the petitioner can
certainly request the Special Court to supply him such a list
after getting it produced by the investigating officer.
30. It is to be noted that the power of revision cannot
be exercised in a casual or mechanical manner. The Apex
Court in State through Deputy Superintendent of Police
v. R.Soundirarasu [AIR 2022 SC 4218] held that a
revisional power can be exercised to correct a manifest error
of law or procedure which would cause injustice, if it is not
corrected. The revisional power cannot be equated with
appellate power. A revisional court cannot undertake
meticulous examination of the materials on record as it is
undertaken by the trial court or the appellate court. This
power can only be exercised if there is any legal bar to the
continuance of the proceedings or if the facts as stated in
the charge-sheet are taken to be true on their face value and
accepted in their entirety do not constitute the offence for
which the accused has been charged. Looking at the records
of the case in the light of the aforesaid proposition of law,
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there is no ground to interfere with the impugned order
dismissing the petitions for discharge.
31. What emerges from the above is that the view
taken by the Special Court which led to the dismissal of the
petitions for discharge filed by the petitioner cannot be said to
be incorrect. The plea of the petitioner to order a further
investigation cannot also be entertained. I take such a view
also for the reason that the petitioner having been
unsuccessful in the petitions he had filed seeking discharge
only filed the writ petition claiming such a relief.
32. The result is that the revision petition as well as
the writ petition are liable to be dismissed. Accordingly both
the revision petition and the writ petition are dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
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APPENDIX OF WP(C) 27530/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE FINAL REPORT/CHARGE
SHEET DATED 16-09-2015 FILED BY THE
2ND RESPONDENT BEFORE THE COURT OF
ENQUIRY COMMISSIONER AND SPECIAL
JUDGE, KOTTAYAM ON 26-09-2015 IN CRIME
NO. VC-02/2011/SCE ON THE FILES OF THE
VACB, SPECIAL CELL, ERNAKULAM
EXHIBIT P2 A TRUE COPY OF THE LETTER DATED 22-03-
2012 ISSUED BY THE INSPECTOR OF
POLICE, VACB, ERNAKULAM TO THE
DIRECTOR OF MINING AND GEOLOGY,
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE PROPERTY STATEMENTS
IN FORM NOS. 1 TO VI SUBMITTED BY THE
PETITIONER TO THE DIRECTOR OF MINING
AND GEOLOGY, THIRUVANANTHAPURAM
EXHIBIT P3(A) TRUE COPY OF THE COVERING LETTER DATED
21-5-2012 SUBMITTED BY THE PETITIONER
TO THE DIRECTOR OF MINING AND GEOLOGY,
THIRUVANANTHAPURAM
EXHIBIT P3(B) TRUE COPY OF THE AGREEMENT FOR SALE OF
LAND DATED 12.08.2008 RECEIVED AGAINST
SALE OF LAND FROM SRI.MATHEW JOSE
KOLADY AND REFERRED TO AS ITEM NO.16
IN ANNEXURE TO STATEMENT NO.1 IN
EXT.P3.
EXHIBIT P3(C) TRUE COPY OF THE AGREEMENT FOR SALE OF
LAND DATED 08.09.2008 RECEIVED
AGAINST SALE OF FLAT FROM
SRI.M.I.KURIAKOSE AND REFERRED TO AS
ITEM NO.17 IN ANNEXURE TO STATEMENT
NO.1 IN EXT.P3.
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EXHIBIT P3(D) TRUE COPY OF THE SETTLEMENT AGREEMENT
WITH SMT.P.V.SOSAMMA AND P.V.KORUTHE
DATED 15.08.2002 AND REFERRED TO AS
ITEM NO.18 IN ANNEXURE TO STATEMENT
NO.1 IN EXT.P3.
EXHIBIT P3(E) TRUE COPY OF THE PURCHASE BILL OF SALE
OF GOLD TO M/S FORNAS JEWELLERS (3
NOS.) AND REFERRED TO AS ITEM NO.23 IN
ANNEXURE TO STATEMENT NO.1 IN EXT.P3.
EXHIBIT P3(F) TRUE COPY OF CHEQUE NO.007541 DATED
03.08.2005 OF FEDERAL BANK HOSPITAL
JUNCTION, KUNDARA ISSUED TO
P.V.SOSAMMA BY P.V.KORUTHE PUNNAVILA
AND REFERRED TO AS ITEM NO.28 IN
ANNEXURE TO STATEMENT NO.1 IN EXT.P3.
EXHIBIT P3(G) TRUE COPY OF CERTIFICATE OF WITHDRAWAL
OF CASH FROM FEDERAL BANK HOSPITAL
JUNCTION KUNDARA DATED 11.01.2002 ON
(3 DAYS VIZ.03.02.2001 RS.25,000/-,
08.09.2001 RS.52,000/-, 29.11.2001
RS.20,000/-) REFERRED TO AS ITEM
NO.28(A) IN ANNEXURE TO STATEMENT NO.1
IN EXT.P3.
EXHIBIT P3(H) TRUE COPY OF PENSIONERY BENEFIT
DETAILS OF SRI.V.V.JOSEPH WITH
ENDORSEMENT BY THE PETITIONER REFERRED
TO AS ITEM NO.30 IN ANNEXURE TO
STATEMENT NO.1 IN EXT.P3.
EXHIBIT P3(I) TRUE COPY OF CHEQUE NO.28669 DATED
03.08.2005 ISSUED BY BIJU PHILIPOSE TO
THE PETITIONER REFERRED TO AS ITEM NO.
33 IN ANNEXURE TO STATEMENT NO.1 IN
EXT.P3.
EXHIBIT P3(J) TRUE COPY OF CHEQUE NO.990771 DATED
19.11.2003 OF SBT, KUNDARA ISSUED BY
KOSHY JOHN TO P.V.SOSAMMA REFERRED TO
AS ITEM NO. 34 IN ANNEXURE TO
STATEMENT NO.1 IN EXT.P3.
EXHIBIT P3(K) TRUE COPY OF PROOF OF PAYMENT OF MONEY
THROUGH UAE EXCHANGE (4 NOS.
DT.22.02.2004, 13.03.2004, 02.03.2004,
21.03.2004) REFERRED TO AS ITEM NO.35
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IN ANNEXURE TO STATEMENT NO.1 IN
EXT.P3.
EXHIBIT P3(L) TRUE COPY OF PROOF OF EXPRESS MONEY
TRANSFER THROUGH UAE EXCHANGE
FINANCIAL SERVICE LTD. FROM SALEENA
JOSEPH (2 NOS. DT.06.11.2002,K
22.11.2002) REFERRED TO AS ITEM NO.36
IN ANNEXURE TO STATEMENT NO.1 IN
EXT.P3.
EXHIBIT P3(M) TRUE COPY OF CASH WITHDRAWAL TO HDFC
ON 29.10.2010 AND REPAYMENT STATEMENT
COPY REFERRED TO AS ITEM NO.37 IN
ANNEXURE TO STATEMENT NO.1 IN EXT.P3.
EXHIBIT P3(N) TRUE COPY OF PROMISSORY NOTE EXECUTED
IN FAVOUR OF PHILIP JACOB ALIAS JAIMON
JACOB PARAYIL ON 09.10.2009 BY THE
PETITIOENR REFERRED TO AS ITEM NO.39
IN ANNEXURE TO STATEMENT NO.1 IN
EXT.P3.
EXHIBIT P3(O) TRUE COPY OF PROMISSORY NOTE EXECUTED
IN FAVOUR OF BABU THOMAS PULIKKAL
05.12.2005 BY THE PETITIONER (STATED
AS ORAL AGREEMENT IN STATEMENT BY
MISTAKE - ORIGINALK DOCUMENT WAS
HANDED OVER TO SRI.T.M. VARGHESE
DURING THE CORUSE OF VIGILANCE ENQUIRY
ON 24.01.2011 REFERRED TO AS ITEM
NO.40 IN ANNEXURE TO STATEMENT NO.1 IN
EXT.P3.
EXHIBIT P4 TRUE COPY OF LETTER NO. 145/E2/2010
DATED 23-5-2017 ISSUED BY THE DIRECTOR
OF MINING AND GEOLOGY,
THIRUVANANTHAPURAM TO THE INSPECTOR
VACB, ERNAKULAM
EXHIBIT P5 TRUE COPY OF REPRESENTATION DATED 16-
6-2012 SUBMITTED BY THE PETITIONER TO
THE SUPERINTENDENT OF POLICE, VACB,
SPECIAL CELL, ERNAKULAM
EXHIBIT P6 TRUE COPY OF THE POSTAL RECEIPT DATED
05-10-2019 ISSUED BY THE POSTAL
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DEPARTMENT FOR HAVING SENT EXT. P7
EXHIBIT P6(A) TRUE COPY OF POSTAL RECEIPT DATED 05-
10-2019 ISSUED BY THE POSTAL
DEPARTMENT FOR HAVING SENT EXT. P6
EXHIBIT P6(B) TRUE COPY OF TRACK CONSIGNMENT REPORT
OBTAINED FROM THE POST OFFICE WEBSITE
CONFIRMING DELIVERY OF EXT. P-6
REPRESENTATION TO THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF THE GO(MS) 1/2021/VIG
DATED 28-1-2021.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
5-2-2021 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT.
EXHIBIT P8(a) TRUE COPY OF THE POSTAL RECEIPT DATED
5-2-2021 OBTAINED FROM THE RMS BOOKING
COUNTER FOR HAVING DISPATCHED EXHIBIT
P-8.
EXHIBIT P9 TRUE COPY OF THE CHEQUE NO.10018543
DATED 11.08.2010 OF FEDERAL BANK
CHINGAVANOM TO SAIRA SUSAN KORAH
(PETITIONER'S DAUGHTER) BY RAJI
MATHEW, THE PETITIONER'S COUSIN
BROTHER AS GIFT.
EXHIBIT P10 TRUE COPY OF THE CHEQUE NO.10018544
DATED 11.09.2010 OF FEDERAL BANK
CHINGAVANOM TO SAIRA SUSAN KORAH
(PETITIONER'S DAUGHTER) BY RAJI
MATHEW, THE PETITIONER'S COUSIN
BROTHER AS GIFT.
EXHIBIT P11 TRUE COPY OF THE CHEQUE NO.10018542 OF
FEDERAL BANK CHINGAVANOM TO HANNA
SUSAN KORAH (PETITIONER'S DAUGHTER) BY
RAJI MATHEW, THE PETITIONER'S COUSIN
BROTHER AS GIFT.
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EXHIBIT P12 TRUE COPY OF THE PRIMOSSORY NOTE
EXSECUTED IN FAVOUR OF P.K.SAVITHRY
AMMA BY A.G.KORAH DATED 04.07.2005
(ORIGINAL HAND OVER TO
SRI.T.M.VARGHESE DURING THE COURSE OF
VIGILANCE ENQUIRY ON 24.01.2011.
EXHIBIT P13 TRUE COPY OF THE PROMISSORY NOTE
EXECUTED IN FAVOUR OF SRI.A.J.SCARIA
ANKATHATTIL ON 12.09.2005 BY THE
PETITIONER.
Exhibit P-14 TRUE COPY OF THE SAID REPRESENTATION
DATED 18-6-2012 SUBMITTED BY THE
PETITIONER TO THE DIRECTOR OF MINING &
GEOLOGY, THIRUVANANTHAPURAM
