Madras High Court
S.Gnanamani vs Crl.R.C.Nos.272 on 28 April, 2023
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
21.11.2022 28.04.2023
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
and Crl.M.P.Nos.1219, 1216,
3472, 3474 & 3625 of 2022
S.Gnanamani ... Petitioner
in Crl.R.C.No.272/2022
K.Viswanathan ... Petitioner
in Crl.R.C.No.126/2022
P.Poonghuzali ... Petitioner
in Crl.R.C.No.127/2022
G.Nagarajan ... Petitioner
in Crl.R.C.No.328/2022
Mookiah ... Petitioner
in Crl.R.C.No.343/2022
Vs.
1/48
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
The State
Represented by its
Inspector of Police,
Vigilance and Anti-Corruption,
Coimbatore.
Crime No.5 of 2014 ... Respondent
in all Petitions
COMMON PRAYER: Criminal Revision Petitions filed under Sections
397 and 401 of Criminal Procedure Code, to set aside the order passed in
C.M.P.No.453 of 2021, C.M.P.No.343 of 2021, C.M.P.No.344 of 2021,
C.M.P.No.342 of 2021 and C.M.P.No.392 of 2021 dated 31.01.2022 in
Spl.C.C.No.2 of 2021 on the file of Special Judge for the cases under
Vigilance and Anti-Corruption Act, Coimbatore and discharge the
petitioners.
For Petitioner
in Crl.R.C.No.272/2022 : M/s.R.B.Kavya
for Mr.A.Parthasarathy
For Petitioner
in Crl.R.C.Nos.126
& 127/2022 : Mr.N.R.Elango
Senior Counsel
for Mr.A.S.Aswin Prasanna
For Petitioner
in Crl.R.C.No.328/2022 : Mr.M.Palanivel
For Petitioner
in Crl.R.C.No.343/2022 : Mr.J.Franklin
For Respondent
in all Crl.RCs. : Mr.S.Udayakumar
Government Advocate [Crl. Side]
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
COMMON ORDER
The petitioners are A1 to A3, A5 and A6 in Spl.C.C.No.2 of 2021
facing trial before the learned Special Judge, Special Court for Cases under
Prevention of Corruption Act, Coimbatore for the offence under Sections
13(2) r/w. 13(1)(d) of Prevention of Corruption Act r/w. Sections 109, 166,
167, 177 and 420 of IPC alternatively Sections 167, 177, 468, 471, 477A,
420, 109 r/w. 511 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of
Corruption Act, 1988. There are totally six accused in the case and A4 has
not filed any petition.
2.A1 filed a discharge petition in C.M.P.No.452/2021, A2 filed
C.M.P.No.392/2021, A3 filed C.M.P.No.342/2021, A5 filed
C.M.P.No.345/2021 and A6 filed C.M.P.No.344/2021. All these petitions
were dismissed by individual orders on 31.01.2022. Against which, the
present criminal revision petitions were filed.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
3.Since all the petitioners are accused in Spl.C.C.No.2 of 2021 and
the points raised by them are similar in nature, all the revision petitions are
heard together and disposed of by a common order. The petitioners and the
respondent are referred to as accused and complainant as per the charge
sheet.
4.The case against the petitioners is that A1 was the Assistant
Director/Incharge Member Secretary to the Local Planning Authority [LPA]
Coimbatore for the period from 29.10.2010 to 02.11.2010 and 15.01.2011 to
21.01.2011, A2 was the Assistant Director/Member Secretary of LPA from
03.11.2010 to 14.01.2011 and 22.01.2011 to 31.07.2011, A3 was the
Assistant Director/Member Secretary of LPA from 12.04.2010 to
26.10.2010. A1 to A3 are public servants. A4 was the Supervisor at LPA
for the period from 02.06.2010 to 22.05.2015 who now voluntarily retired
from service. A5 and A6 are private individuals. The Local Planning
Authority consists of Chairman, Member Secretary, five elected members
and two nominated persons. The District Collector is the Chairman of the
Committee, the Joint Director is the Member Secretary of LPA and in the
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
vacancy of Joint Director, Assistant Director of LPA can hold incharge of
the post of Member Secretary. The power of planning approval of
4000 sq.ft. upto first floor was conferred to Member Secretary and he is
competent to forward the application along with his report pertaining to
commercial building upto 2500 sq.ft. to the Chairman [District Collector]
for approval. In case of Multi-storied Building [MSB] to the extent of four
floors whose height is 15 meters or more Member Secretary should forward
the application to the Director of Town and Country Planning, Chennai
[DTCP]. The LPA has no power to approve MSB planning permission in
the notified area in Coimbatore as per Section 49 of Tamil Nadu Town and
Country Planning Act, 1971. In case of violation in MSB, the LPA to take
appropriate legal action against the building owners. As regards this case,
prior to 27.05.2010 A5 and A6 who are adjacent land owners in
S.F.No.495/3A had amalgamated their properties, constructed a building to
the extent of three floors and two basements without obtaining any building
approval from the competent authority. They had also suppressed the
construction, submitted an application with false information to the LPA as
though they proposed to construct a commercial building to the extent of
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
1204.31 sq.m. for running an automobile retail business in the name of
M/s.Vasanthi Motors and the property is situated at Vilankurichi Village,
Hope College, Avinashi Road, Coimbatore. In the case of amalgamation at
approved sites, it is the Director of Town and Country Planning, Chennai
who is the competent authority to issue orders.
5.On receipt of application of A5 and A6, the then Member Secretary
[Incharge] A3 visited the spot on 16.06.2010 and rejected the application
for want of documents. On rejection of the application, A5 and A6
submitted an application on 27.07.2010 along with revised plan, annexed
with documents such as, No Objection Certificates from Fire service
Department, Highways Department, land documents, chitta, adangal, patta,
encumbrance certificate for 13 years and with legal opinion. In the said
application, A5 and A6 suppressed, already construction of three floors and
two basements and they submitted the application as though they intend to
construct a building to an extent of 1950.35 sq.m. for their automobile
business. On receipt of this application dated 27.07.2010, A4/Supervisor of
LPA prepared a note as if spot inspection was conducted on 16.06.2010, but
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
had not disclosed the construction in the property. After preparation of the
note by A4, A3 approved the note on 17.09.2010 without conducting spot
inspection. A3 and A4 thereby abused their position and sent the proposal
to the Director of Town and Country Planning for plan approval. The
Director of Town and Country Planning directed A5 and A6 to send a
revised plan with rectification of building space, site open space, rear side
open space, ramp, etc. A3 obtained a revised plan from A5 and A6 and
forwarded the same to DTCP suppressing the material fact of existing
construction. A3 received the technical permission from DTCP. Pursuant
to the technical permission, A4 fixed the Special Building charge of
Rs.190/- per sq.m. instead of MSB rate of Rs.375/- per sq.m. The actual
measurement of the construction area was 2839.87 sq.m. Thus wrongful
loss caused to the Government to the tune of Rs.5,32,900/-, correspondingly
wrongful gain made by A5 and A6. In the course of the above transaction
A1, A3 and A4 without adhering to the rules collected the fee for a
commercial building instead of MSB.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
6.In pursuance of the approval, A5 and A6 continued further
construction, more than plan approval dated 29.10.2010. To suppress the
same they submitted two revised plans with false information on 14.12.2010
and 20.12.2010, for construction of retail business store of 1536.34 sq.m.
On receipt of the revised plan, A2/then Member Secretary inspected the
building on 03.01.2011, pointed out minor discrepancy in parking, but
suppressed the measurement of building and its height. A4 again prepared a
note file with revised plan and submitted the same to A1 since A2 was on a
training programme at Hyderabad. In the meanwhile, a revised plan was
submitted to the extent of 1830.86 sq.m. on 10.01.2011 by A5 and A6, due
to which another note file prepared. A1 thereafter sent the recommendation
to the District Collector/Chairman of LPA without spot inspection,
verifying the physical features of the building. The Chairman approved the
building plan vide 7666/2010/3 dated 22.01.2011 for the extent of 1830.86
sq.m. A2 returned from training on 22.01.2011 forwarded the approval to
the Commissioner, Coimbatore Corporation for issuance of building license
for running a Professional Consultancy office. Thus A1, A2 and A4 abused
their position, fabricated the reports relating to construction of building of
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
A5 and A6, prepared incorrect statement in the reports and used the reports
as genuine, submitted the same to the Chairman of LPA and obtained
building plan approval in favour of A5 and A6. Further, the note files for
the revised plans dated 10.01.2011 and 18.01.2011 were fabricated and
thereby caused wrongful loss of Revenue to the tune of Rs.6,86,230.70/-.
Thus, A1, A3 and A4 committed the offence punishable under Sections 167,
468, 471, 477A, 420 IPC r/w. 511 IPC and Section 13(1) r/w. 13(1)(d) of
Prevention of Corruption Act, 1988. A5 and A6 committed the offence
punishable under Sections 177, 468, 471, 420 and 109 IPC r/w. Section
13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988. A1, A2 and A4
committed the offence punishable under Sections 167, 468, 471, 477A, 420
r/w. 109 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of Corruption
Act, 1988. Along with the charge sheet, the statements of L.W.1 to L.W.35
and documents L.D.1 to L.D.49 annexed and submitted. The Trial Court on
perusal of the charge sheet, documents and materials took cognizance and
issued summons to the accused. On receipt of the summons, the accused
appeared before the Trial Court, filed discharge petitions which came to be
dismissed as stated above.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
7.In this case, it is now reported that A1/petitioner in Crl.R.C.No.272
of 2022 passed away on 30.08.2021 which is not disputed by the
respondent. Hence, the case against A1 stands abated.
8.The contention of the learned counsels is that the Inspector of
Police, Vigilance and Anti-Corruption registered FIR on 10.04.2014 on his
own. There is no complaint by any of the Department concerned or from
any individual. Further, there is no allegation of any irregularity committed.
There is a delay of more than three years in registration of FIR and the same
has been filed with ulterior motive. The charge sheet is silent with regard to
the allegations. Further there is a delay of seven years in filing the charge
sheet before the concerned Court. The process of building approval started
during the year 2010 to 21.01.2011, the file was submitted to DTCP and
Chairman, LPA [District Collector]. Both processed and approved. The
primary allegation is that instead of collecting fees for Multi-storied
Building, the fee was fixed for Special building. The distinction between
the multi-storied building and special building as contemplated under Tamil
Nadu Town and Country Planning Levy of Infrastructure and Amenities
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
Charges Rules, 2008 issued under G.O.Ms.No.22 Housing and Urban
Development Department [UD4-1] dated 25.01.2008, reads as follows:
'(f) “Multi-storeyed building” means as building having
more than 4 floors including the ground floor or if the
ground floor is used for parking under stilts, then
excluding the ground floor, whose height is 15 metres or
more;
(g) “Special Building” means a building having more than
two floors but not exceeding 4 floors inclusive of ground
floor or a building with basement or stilt floor and 4 floor
or a residential building having more than 4 dwelling units
or a building accommodating commercial or industrial or
institutional or combination of such activities with a floor
areas exceeding 300 square meters.'
9.Hence, based on the documents submitted the fees levied by the
authorities is in accordance with Act and Rules and as per G.O.Ms.No.22
Housing and Urban Development Department [UD4-1] dated 25.01.2008.
Further the allegation is that the building plan approval to A5 and A6 was
issued on 29.10.2010 and at that time, the officials failed to show absolute
integrity and devotion in discharge of official duty is denied as false. Even
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
if the allegation is taken on its face value, the same would not attract any
criminal prosecution, more so under Prevention of Corruption Act, utmost it
can be a dereliction of duty attracting disciplinary action, as per the Service
and Conduct Rules. None of the document annexed in the charge sheet
would reveal that there is any fabrication by the officials by abusing their
position. In this case, the alleged occurrence is said to have taken place
from 27.05.2010 to 07.02.2022, FIR came to be registered on 10.04.2014,
sanction for prosecution was obtained on 29.04.2019. Though charge sheet
shown to be made ready on 15.07.2019, the same was filed before the Trial
Court on 03.05.2021. The statement of witnesses would reveal that there is
no offence committed by any of the petitioners. There is no reason given as
to why there have been delay of seven years in filing the final report in this
case. From the statement and documents annexed, it is seen that there is no
specific allegation in the charge sheet, who are the accused who created or
signed any forged document in this case. The Tamil Nadu Town and
Country Planning Act is a self-contained Act and in the event of any
violation of the Act, there is specific provision under Section 89 to take
cognizance of offences.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
10.The contention of learned counsel for A2 is that if there is
deviation or violation of Tamil Nadu Town and Country Planning Act,
provisions are there to file revised plan and to rectify the defects. In the
event of no post approval or condonation, violation of building would
attract, building to be demolished and removed. In view of the same there is
no necessity for the respondent to travel beyond the Act and implicate the
petitioner/A2 in a criminal case, more so under Prevention of Corruption
Act when there is no statement or any material to show that there was any
misconduct, enrichment by the petitioner in any manner. The petitioner/A2
advised the building owners, namely, A5 and A6 to rectify the defects and
to file a revised plan, in the meanwhile he attended the Seminar at
Hyderabad and in his absence, file processed, sent to DTCP and Chairman,
LPA, A2 is not aware of the same. Further, the Director of Town and
Country Planning issued Circular No.2694/2010/LA2 dated 20.12.2010
which was received by the Local Planning Authority after 03.01.2011
wherein power delegated to approve commercial building to maximum
height of 15 meters with a floor area of 2500 sq.m. On the proposal sent by
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
the Local Planning Authority on 21.01.2011 the Chairman/District Collector
gave his approval on 22.01.2011, during this period the petitioner/A2 was
attending the Seminar and only after getting approval from the
Chairman/District Collector, the file was placed before A2. The petitioner
again thereafter scrutinized the proposal, re-examined the plans and released
the approval after collecting necessary fees. On the approval dated
03.01.2011 the construction of the building was not completed, pillars were
raised upto 4 floors, no external or internal walls constructed and hence, the
height of the building which was under construction could not be measured.
11.The plan approval was issued to building on the Development
Control Regulations for Coimbatore [DCR] issued vide G.O.Ms.No.130
Housing and Urban Development [UD 4-1] dated 14.06.2010. Regulation
No.5 of the said DCR relates to Multi-storeyed Building which defines
“Multi-storeyed Building is a building having more than four floors with a
height of 15 meters or more, then only it can be stated as Multi-storeyed
building. In the case on hand, building was constructed only with four
floors and hence, it cannot be termed as Multi-storeyed Building.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
Regulation 5(6) of the Development Control Rules for Coimbatore
stiuplates MSB should conform to the National Building of India. The
petitioner did not frame any incorrect documents. The application
submitted by A5 and A6 was processed as per the Rules and Regulations. It
is well settled in law that charge of forgery cannot be based on mere
suspicion or doubt. The petitioner had not approved the building plan and
there is no role on the part of the petitioner/A2 in sanctioning of building
approval. The petitioner/A2 served only for limited period as Assistant
Director/Member Secretary of LPA. The No Objection Certificate dated
20.07.2010 of the Fire Service Department and the No Objection Certificate
dated 30.08.2010 of the Divisional Engineer, Highways, would clearly
prove that there is no case made against the petitioner/A2 and the
allegations are false and untrue.
12.The contention of the learned counsel for petitioner/A3 is that A3
was the Assistant Director/Member Secretary of LPA during the period
12.04.2010 to 26.10.2010. A6 in this case given a representation to the
Director of Town and Country Planning through Member Secretary on
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
27.05.2010. The Member Secretary inspected the land on 16.06.2010 and
on 20.07.2010, No Objection Certificate was given by the Fire Service
Department and the Divisional Engineer, Highways, on 20.07.2010 and
30.08.2010. Additional details sought from A5 and A6 vide letter dated
09.08.2010, revised plan dated 30.09.2010 was received as per the
directions from DTCP. The Director of Town and Country Planning
approved the building construction on 21.10.2010, Chairman, LPA
approved, thereafter on 26.10.2010 A5 and A6 permitted to pay the building
fees. The above dates would clearly show that the petitioner/A3 is no way
connected with any of the allegations raised by the prosecution. The
petitioner/A3 permitted collection of fees for commercial building as per the
Departmental norms.
13.The petitioner/A3 on receipt of the proposal from A5 and A6
forwarded the same to the Director of Town and Country Planning, on
direction, sought revised plan with rectification of building space, site open
space, rear side open space, ramp, etc. The revised plan from the applicant
was forwarded to the Director of Town and Country Planning, the Director
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
given technical permission. Following the technical permission and
approval from Chairman, LPA the charges were fixed as applicable to the
special building. It is not mandated in the rules and regulations that each
time when the revised plan is submitted, fresh inspection to be conducted.
It is not a fresh application.
14.The contention of learned senior counsel for petitioners/A5 and
A6, namely, the building owners is that in pursuance of the technical
permission from the Director of Town and Country Planning, the
petitioner/A4 fixed the charges applicable to special building and the same
was paid. Now it is projected that building comes under MSB and lesser fee
has been remitted instead of fee for MSB thereby causing loss to the
Government. Further allegation is that the construction continued with
deviations more than the approved plan dated 29.10.2010, forgetting for a
moment revised plans dated 14.12.2010 and 20.12.2010 letter submitted,
thereafter another revised plans dated 10.01.2011 and 18.01.2011 were
submitted, on the instructions of the Director of Town and Country
Planning, forwarded by the Local Planning Authority. On receipt of the
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
revised plans, inspection was carried out and it is recorded that the building
was in Skeleton shape. When the first application was submitted, the same
was returned for want of documents and prior to it, site inspection
conducted. Thereafter, second application with requisite documents along
with No Objection Certificate was submitted on 27.07.2010. Since earlier
the property was inspected which is primarily to confirm the are and
dimension of the site, inspection report was used for further processing of
the plan which is now blown out of proportion and projected as though
without inspection, plan approval has been forwarded. Likewise, when the
revised application was submitted, the officials from LPA had inspected and
given instructions to rectify certain of the defects, thereafter only revised
application was submitted. At each stage the application was submitted to
LPA forwarded to DTCP, who gave technical approval, thereafter
construction progressed. During the on going construction, revised plan
was submitted, the approved plan was forwarded for building license
approval, the Corporation officials proceeded on a wrong premise that
already the construction of building completed.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
15.As regards the Corporation inspection is concerned, their role is
limited to give approval for building as per the plan which has been
approved by the DTCP and LPA. In this case, the planning permission and
revised plan approval was obtained in the year 2010 and in the first month
of 2011 and the preparatory construction was in progress. At the first
instance planning permission was accorded, later it was rejected.
Thereafter, appeal filed with the Secretary which is pending. Further, the
petitioner/A6 filed W.P.No.3892 of 2012 and the First Bench of this Court
by order dated 21.02.2012 directed the authorities to pass final orders on the
pending appeal, further gave prohibitory order to the Commissioner,
Coimbatore City Municipal Corporation not to demolish the superstructure
of the petitioners/A5 and A6, with caveat not to put up further construction.
Thereafter, Municipal authorities not assessed the property for tax purpose.
Hence, W.P.No.7892 of 2012 was filed seeking direction to assess the
property for tax purpose and to provide water and drainage connection and
the property assessed. Further, W.P.No.25796 of 2012 filed seeking
direction against the Corporation not to interfere with the business of the
petitioners/A5 and A6 in the said premises and later the said writ petition
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
was withdrawn on 18.12.2012. The Coimbatore Corporation issued notiece
to keep the building under lock and seal. The First Bench of this Court in
W.P.No.15734 of 2013 by order dated 28.06.2013 referring to the earlier
order of the First Bench in W.P.No.3892 of 2012 directed the authorities to
remove the lock and seal put up by the Corporation officials giving liberty
to the officials to take action in accordance with law subject to the result of
the appeal pending before the Government. In this case, admittedly the
appeal filed by the petitioners/A5 and A6 is still pending. This being so, in
the year 2014 FIR registered on source information by the respondent
police, seven years thereafter charge sheet filed in the year 2021 which is in
gross violation to the orders passed by the First Bench of this Court in
W.P.No.3892 of 2012 dated 21.12.2012 and W.P.No.15734 of 2013 dated
28.06.2013. He further submitted that registration of criminal case for civil
wrong is nothing but a abuse of process, indirectly blotting the petitioner's
legal right of appeal pending before the concerned authorities. Apart from
that, the learned senior counsel further submitted that in this case utmost, it
is deviation in the planning permission, there are several earlier instances
wherein the concerned authorities/Government have given appropriate
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
directions to rectify the defects and granted approval or in some cases
exemption given as per the rules and regulations. In some cases demolition
to the extent of deviation ordered. In such circumstances, slapping a
criminal case against the petitioners is nothing but a persecution.
16.It is further submitted, as regards the sanction for prosecution
issued under Section 19 of Prevention of Corruption Act in G.O(3D)No.30
Housing and Urban Development [UD2(1)] Department dated 29.04.2019
against A1 to A3, it is an erroneous order, invalid in eye of law and issued
without application of mind. It is further submitted that in the sanction
order though sanction accorded to A1 to A3. It is submitted that in this case
A5/Viswanathan has been referred to as A4 and A6/Poonghuzali has been
referred to A5 in the sanction order. This mistake is not in one place but in
the entire sanction order. Likewise, A4/Viswam is referred to as A7, in the
charge sheet there are only six accused in this case. Added to it, the
sanction for prosecution for A1 to A3 accorded finding that they have
committed offences punishable under Sections 109, 120B of IPC r/w. 177,
202, 420 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of Corruption
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
Act. The charge sheet is filed for the offence under Sections- 109, 166, 167,
177, 420 IPC r/w. Section 13(2) r/w. 13(1)(d) of Prevention of Corruption
Act alternatively charged under Sections 167, 177, 468, 471, 477A, 420,
109 r/w. 511 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of
Corruption Act, 1988 which proves that either the Investigating Officer not
produced all statements and documents to the Sanctioning Authority or the
Sanctioning Authority not gone into all statements and documents,
independently applied his mind. Thus arrival of subjective satisfaction in
according sanction, confirms non-application of mind. It was further
submitted that taking into consideration the statements, documents and
materials produced nowhere it is seen that there is any misconduct
committed in any manner by any of the Public Servant, utmost it is only a
mistake of fact and not mistake of law, falls under misfeasance, for which
the answer is not a criminal prosecution under various Provisions of IPC,
more so, under Prevention of Corruption Act. The sanction is invalid,
improper sanction and causing prejudice to the accused. Hence, prayed for
setting aside the dismissal of the discharge petitions and consequently,
quash the charge sheet.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
17.The petitioners in support of their contentions relied on the
following judgments:
1.State Through Central Bureau of Investigation vs.
Dr.Anup Kumar Srivastava [Crl.A.No.1336 of 2017]
2.Ramakrishna vs. State of Bihar and another
reported in 1964 SCR (1) 897.
3.Sri Hari vs. State rep. by the Additional
Superintendent of Police, CBI(ACB), Chennai reported in
(2021) 2 MLJ(Crl.) 530
4.Sharat Babu Digumarti vs. Government [NCT of
Delhi) reported in (2017) 2 SCC 18
5.Suresh Nanda vs. Central Bureau of Investigation
reported in (2008) 3 SCC 674
6.M/s.ACC Ltd. and another vs. State of Jharkhand
[Crl.M.P.No.152 of 2016 dated 27.07.2021]
7.J.Jayalalitha and four others vs. State rep. by
Director of Vigilance and Anti-Corruption, Chennai
reported in 2001 (Suppl.) 112.
18.Learned Government Advocate [Crl. Side] appearing for the
respondent filed his counter and submitted that A1 to A4 all are public
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
servants. He submitted that recognized principle of criminal jurisprudence
is that anyone can set or put the criminal law into motion except where the
statute enacting or creating an offence indicates to the contrary. A1 to A3
worked as Assistant Director Incharge of Member Secretary, Local Planning
Authority, they being the public servants are legally bound to furnish true
and correct information of measurements of the building, its height, set back
measurements and other particulars. FIR in this case was registered after
conducting preliminary and detailed enquiry, hence some time had taken in
registering the FIR. Delay in all cases is not fatal and in this case, delay
occurred due to preliminary and detailed enquiries. FIR is not an
encyclopedia, the veracity of the witnesses statement and the documents
have to be tested, gone through only during trial and cannot be decided at
this stage. The offences charged against the petitioners are punishable upto
seven years and hence there is no time limit and the limitation as per Section
468 Cr.P.C. does not arise. The Chairman, Local Planning
Authority/District Collector on 21.01.2011 recommended for the planning
permission, based on the Member Secretary recommendatory note, Member
Secretary without inspecting the site purposefully suppressed the
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
measurement of the buildings, which shows that the accused colluded with
each other.
19.The collusion of the petitioners with each other are clearly spoken
to by Ravichandran/L.W.12, Town Planning Officer, Isac Arthur/L.W.13,
Junior Engineer, M.Soundararajan/L.W.21, Town Planning Officer and
S.Chandrasekaran/L.W.31. The public servants being duty bound officers
failed to mention the measurements of the construction made and
purposefully failed to inspect the spot. The report filed by the Coimbatore
Corporation officials disclose the building was constructed to the extent of 4
floors and measurements of the building not provided. Further, the building
was more than 15 meters height and hence it comes under MSB, on the
other hand it had been shown as special building, lesser amount collected as
charges, thereby causing loss to the Government. The act of the accused is
nothing but abuse of official position, which would fall under criminal
misconduct within the ambit of Section 13(2) r/w. 13(1)(d) of Prevention of
Corruption Act, 1988. The public servants were charged for abetting the
building owners to fabricate the document with suppression of facts. The
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
statement of witnesses and documents speaks about the fraudulent act
committed by the petitioners. As per Section 28 of the Prevention of
Corruption Act, the provision of this Act shall be in addition to and not in
derogation of any other law for the time being in force. He further
submitted that the probative value of the documents and statements cannot
be assessed and looked into at this stage. A1 to A4 concealed the
measurements along with the height of the building to do illegal favour to
A5 and A6. A3 in this case conducted a site inspection on 16.06.2010,
thereafter fresh application was submitted by the applicants on 27.07.2010
and 02.09.2010 but no spot inspection thereafter conducted. A report has
been sent to the Director of Town and Country Planning with suppression of
fact about construction of three floors with two basements already available
as 19.07.2010.
20.L.W.9/Nandakumar from the Fire Service Department gave a
report on 20.07.2010 stating the building was with three floors and with this
remark he has given No Objection Certificate. Likewise, L.W.12, Assistant
Engineer, P.W.D. in his report has stated that on 25.08.2010 when he
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
inspected he found construction to the extent of 3 to 4 floors. The learned
Government Government [Crl. Side] submitted that A1 to A4 who are
public servants failed to inspect the construction of building stage by stage,
they connived with A5 and A6, made incorrect statement in the official
records to favour them. A1 to A4 failed to initiate appropriate legal action
against the builders, A5 and A6, which they ought to have taken as per
Tamil Nadu Town and Country Planning Act. A3 and A4 purposely
collected lesser amount from A5 and A6 in order to cheat the Government.
Thus, A1 to A4 abused their official position and committed criminal
misconduct. Further, submitted that Section 84 of Tamil Nadu Town and
Country Planning Act is for willful disobedience committed for not
responding to notice or summons sent to Builder or occupier. In this case,
no notice or summons sent by A1 to A4 and there is no private complaint.
As regards A5 and A6, the building owners, the respondent submitted that
they put up construction even before submitting the application for planning
permission. When the planning permission application was pending with
the Local Planning Authority, construction was in progress. After getting
permission from the DTCP and from LPA without getting building
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
permission from the Coimbatore Corporation, building construction
continued. This is in clear violation of the plan approval, A5 and A6
thereafter attempted to cover up the same, filed revised plans on two
occasions which were rejected.
21.Despite the fact that the building consists of four floors, which is
more than 15 meters of height, squarely comes under MSB and the charges
to be paid at Rs.375/- per sq.m., by suppressing the materials facts they paid
the charges as Special building and paid Rs.190/- per sq.m. thereby caused
loss to the Government and made unlawful gain. The officials in collusion
helped the builders A5 and A6 in this regard. The Corporation officials
who inspected the building, given a report about existence of four floors.
He further submitted that the writ petitions filed earlier has nothing to do
with the criminal proceedings. It was filed for the purpose of assessing the
property, providing water and sewage connection and to remove the lock
and seal. The rejection order of planning permission was served to A5 and
A6, they have filed an appeal and the same is still pending. Further, filing
of appeal would not absolve them of their criminal act. As regards final
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
opportunity notice not given, in case of disproportionate assets, final
opportunity notice is issued to seek explanation and not in the case under
Section 13(2) r/w. 13(1)(d) of Prevention of Corruption Act.
22.Further, in the case of Duraimurugan vs. State rep. by Deputy
Superintendent of Police, Vigilance and Anti-Corruption, Vellore reported
in 2013 (1) CWC 136 and G.Mohanasundaram vs. State rep. by Inspector
of Police, Directorate of Vigilance and Anti-corruption
[Crl.O.P.No.20882 of 2014], this Court held that non following of the
procedures laid down n DVAC manual is not fatal. In the case of State of
Orissa vs. Dependranathpathi reported in AIR 2005 SC 359, it is observed
that at the time of framing charge or discharge, Court cannot conduct a mini
trial. In the case of Sivalingamoorthy vs. CBI, Bengaluru reported in AIR
2020 SC 331, it is stated that the defence of the accused, not to be looked
into at the stage when the accused seeks discharge. In the case of Union of
India vs. Prafulla Kumar Samal reported in AIR 1979 SC 366, it is
observed that charges can be framed if there is a prima facie case made out
to proceed against the accused. Further, learned Government Advocate
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
[Crl. Side] relied upon the following decisions:
1.R.S.Naik vs. A.R.Antulay reported in AIR 1986
SC 2045
2.State of Himachal Pradesh vs. Krishan Lal
Pradhan reported in AIR 1987 SC 773
3.State of Delhi vs. Gyan Devi reported in AIR 2001
SC 40
4.Mauvin Godinho vs. State of Goa reported in AIR
2018 SC 748.
Thus it is submitted that the points raised by the petitioner are in their
defence which ought to be look into during trial. There are enough and
sufficient materials against the accused by way of statements and
documents. He further submitted that mere error, omission or irregularity in
the sanction order is not fatal. The petitioners have not shown that the error
has resulted in failure of justice. Thus the points raised by the petitioners
are to be decided during trial. Hence prayed for dismissal of these revision
petitions.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
23.Considering the submissions made and on perusal of the materials,
it is not in dispute that the first application for plan approval filed by A5 and
A6 prior to 16.06.2010 for 1204.31 sq.m., A3 conducted site inspection on
16.06.2010 and rejected the application for want of documents. Thereafter,
A5 and A6 resubmitted the application on 27.07.2010 and this time for
construction of 1950.35 sq.m. A4 prepared the note file based on the
available inspection report and A3 approved the note on 17.09.2010.
Another application dated 02.09.2010 was submitted giving clarifications.
Thereafter, this proposal was forwarded to the Director of Town and
Country Planning who sought for further clarifications and gave direction
to file a revised plan. The clarifications are with regard to building space,
open space, ramp, etc. With this rectification, A3 received the revised plan
and forwarded to the DTCP, who in turn given approval for Special
Building. Thereafter, Special building charges collected and the District
Collector/Chairman of LPA gave his approval. A6 paid the Government, an
amount of Rs.5,32,900/-. Since the actual construction was 2839.87 sq.m,
A1, A3 and A4 issued building plan approval on 29.10.2010. A5 and A6
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
again filed revised plans on 14.12.2010 and 20.12.2010. After receipt of the
revised plans, A2 inspected the building on 03.01.2011 and pointed out
certain discrepancy in parking area. This inspection report was without
actual measurement of the building and its height. A2 had gone for a
training to Hyderabad from 15.01.2011 to 21.01.2011. During this period,
A1 and A4 prepared a note for revised plan for automobile retail business
for 1830.86 sq.m. and another revised plan was submitted on 10.01.2011
and 18.01.2011. A1 sent the recommendation to the District
Collector/Chairman of LPA without spot inspection report and
measurement. The District Collector gave his approval on 22.01.2011, by
then A2 returned from training forwarded the approval to Coimbatore
Corporation for building license for Professional Consultancy Office, the
Corporation Officials inspected the building and rejected the permission
with a report.
24.In this case, L.W.2, L.W.3, L.W.13, L.W.16, L.W.16, L.W.19,
L.W.22, L.W.28, L.W.32, L.W.33 and L.W.34 are the officials from the
Local Planning Authority, of which L.W.2, L.W.3 and L.W.32 are the
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
Assistant Director/Member Secretary [Incharge] who state about the office
procedures. L.W.4, L.W.5, L.W.6, L.W.7, L.W.14, L.W.15, L.W.17,
L.W.18, L.W.20, L.W.31, L.W.24 and L.W.30 are from the Coimbatore
Corporation who state about subsequent happening after the approval by the
DTCP and LPA, visiting the site finding the on going construction and with
regard to assessment of tax and other particulars. L.W.9 and L.W.31 are
from the Fire Service Department, L.W.10 from Highways Department,
L.W.11, L.W.12 and L.W.35 are from the Public Works Department.
Except L.W.35, these witnesses state about the No Objection Certificate
issued for construction of building and on the day of inspection, they found
the building with 3 to 4 floors. L.W.35 speaks about various stages of
construction and the time taken for the same. L.W.1 is the sanctioning
authority, L.W.36 to L.W.38 are the Investigating Officer and other
witnesses are private persons. On the statements from LPA, it is seen that
all the witnesses have stated about the application made by A5 and A6
seeking plan approval and building permission, forwarding the plan
proposed to DTCP, again submitting revised plan, getting approval from the
Chairman of LPA, subsequent to it another revised plan submitted both to
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
the LPA as well as Coimbatore Corporation, again inspection conducted,
finding some shortcomings and discrepancy, the builders were advised to
submit a revised plan which was again forwarded to the DTCP, by then a
Government Order authorizing Local Planning Authority following the
circular of DTCP in No.2694/2010/LA2 dated 20.12.2010 and
G.O.Ms.No.130 Housing and Urban Development [UD 4-1] dated
14.06.2010 issued, No Objection Certificates from the Fire Service
Department and Highways Department submitted the file got processed and
forwarded to the Chairman of LPA who gave his approval. These incidents
happened during the year 2010 to January 2011. In this case, the
Collector/Chairman of LPA not conducted any site inspection, no reason or
statement recorded why and for what reason, such exercise not followed.
Instead the entire blame are focused against the Member Secretary, namely,
A1 to A3 and A4.
25.The officials of Coimbatore Corporation conducted inspection and
rejected the application for building license, against which appeal has been
filed by the builders on 27.07.2011, Auto-DCR submitted. In this case,
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
initially inspection was conducted on 16.06.2010, thereafter on
re-submission of application on 27.07.2010 the same was processed and
subsequently, the Corporation officials conducted inspection on 18.11.2010
found violation, again revised application submitted and inspection
conducted on 03.01.2011, proposal forwarded to DTCP and approval was
given by the District Collector/Chairman of LPA on 22.01.2011. It is seen
that digital survey made by the then Member Secretary of LPA
S.Chandrasekaran who submitted the same to the Director of Town and
Country Planning. The revision of building plan, change of business and
violations are now projected as though the LPA officials joined with the
builder, abetted and committed misconduct and other offences. The
violations found is that two basements available affecting the drive way.
Likewise, ground floor, first floor, second floor and third floor are for
commercial purpose and construction is in violation of the approved plan.
The fourth floor is an additional construction and the head room is more
than the prescribed height. L.W.13 state about the violations in basement
and construction of fourth floor unapproved, also found excess construction
of few meters in each floors than the approved plan. But all the witnesses
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
have stated that for the violations and deviations found, they advised the
builders to submit revised plan, based on which the builder filed revised
plan in the year 2010 and 2011 [two occasions each] on 14.12.2010,
20.12.2010, 10.01.2011 and 18.01.2011 which were all processed,
considered by both LPA and DTCP and thereafter, approval has been given
by DTCP and the Chairman of LPA, who is the appropriate authority. It is
not in dispute, revised plans submission and thereafter processed and
approved, thereby confirming that at the first instance plan submitted and
scrutinized. Hence, the question of construction without planning
permission does not arise. It can be constructively held to be an act of
misfeasance.
26.It is not in dispute that notice was issued with regard to refusal of
planning permission and against which, A5 and A6 filed an appeal before
the concerned authorities on 27.07.2011 which is still pending. In the
meanwhile, the said notice was challenged and the First Bench of this Court
in W.P.No.3892 of 2012 by order dated 21.02.2012 directed the concerned
authorities to dispose of the appeal as expeditiously as possible within a
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
period of four weeks from the date of receipt of a copy of the order.
Thereafter, till date the appeal is kept pending and no decision taken. The
officials of Coimbatore Corporation not assessed the property for the reason
no planning approval obtained. Further water connection and sewage
connection denied. Thereafter, the building owners approached this Court
in W.P.No.7812 of 2012 to assess the property. Later the property was
assessed and all facilities provided by the Municipal authorities. In the
meanwhile, another notice dated 10.08.2012 seeking explanation for
continuing unapproved construction despite the order dated 21.02.2012 in
W.P.No.3892 of 2012 issued suitably replied informing construction of
compound wall aone and nothing more. Hence, the notice dated 10.08.2012
quashed. Further, the Municipal authorities on 18.09.2012 visited the
building and forced closure of business, directed the occupants to vacate the
building. For this action, again W.P.No.25796 of 2012 filed. In the
meanwhile, the objection and obstruction eased out and hence the writ
petition withdrawn. Not stopping with that, again a notice dated 06.06.2013
was issued to lock and seal the building. Again the builder approached this
Court in W.P.No.15734 of 2013, the First Bench of this Court by order
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
dated 28.06.2013 passed an elaborate and detailed order narrating the
sequence of events wherein it had captured the directions issued by this
Court as early as on 21.02.2012 in W.P.No.3892 of 2012 and disposed of
the writ petition with a direction to the Secretary to Government, Municipal
Administration and Water Supply Department to dispose of the appeal filed
by A5 and A6 as expeditiously as possible, with a caveat that the
respondents, namely, Municipal Administration are at liberty to initiate
further action in accordance with law subject to the result of the appeal
pending before the Government.
27.Admittedly, FIR in this case was registered on 10.04.2014. The
Investigating Officer glossed over the earlier writ petition and its orders
giving reason that Vigilance and Anti Corruption is not a party to the writ
petition and gives justification for proceeding with the criminal case, but the
witnesses clearly state about the writ petitions and the directions issued.
The admitted fact is that the statutory appeal filed by A5 and A6 seeking
regularization of planning permission is pending with the authorities. The
First Bench of this Court in W.P.No.3892 of 2012 and W.P.No.15734 of
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
2013 given specific direction. In all fairness it would be appropriate to
await the outcome of the appeal. It is seen that no steps taken by the
authorities including the Police officials in getting the appeal decided. The
respondent is well aware of the pending appeal and the outcome of the
appeal would have a direct barring. Added to it, it is common knowledge
that revised plans are either approved with direction to rectify the deviations
or revised plan rejected ordering demolition. Admittedly, none of the
witnesses L.W.1 to L.W.35 state anything with regard to receiving of any
illegal gratification by the officials or private individuals passing any
consideration. There is nothing to infer, about any of the officers acting
with malice or with corrupt motive. The refusal of planning permission is
under challenge and it can be approved, modified or even rejected.
Therefore, even if an incorrect appraisal or recommendation which is not
sustainable is made it cannot be said that the recommendation was made
with dishonest intention in the absence of any evidence to this effect.
28.The Apex Court in the case of M.Narayanan Nambiar vs. State of
Kerala reported in AIR 1963 SC 1116, held that Section 5(i)(d) of the Old
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
Act which is analogous to Section 13(1)(d) being a penal provision, shall be
strictly construed and if so construed it only take in cases of direct benefit
obtained by a public servant for himself or any other person from a third
party in the manner described therein and does not cover a case of a
wrongful loss caused to the Government by abuse of his power.
29.The Narayanan Nambiar's case has been quoted with approval by
the Apex Court in Major S.K.Kale vs. State of Maharashtra reported in
1977 (2) SCC 394 wherein it is held that abuse of position must necessarily
be dishonest on the part of the accused. Thus the judgments referred would
show that what is sought to be punishable under Section 13(1)(d) of
Prevention of Corruption Act is not mere misconduct but criminal
misconduct and for criminal misconduct, the element of mensrea is essential
and if there is no mensrea, the act does not by itself become punishable.
Further, this Court in the case of J.Jayalalitha and 4 others vs. State rep.
by Director of Vigilance and Anti-Corruption, observed in paragraph
Nos.60 and 61 reads as follows:
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
“60.The Supreme Court had an occasion in
M.Narayanan Nambiar v. State of Kerala, AIR 1963 SC
1116, to consider Section 5(i)(d) of the old Act. It was
contended before the Supreme Court that Clause (d) being a
penal provision, shall be strictly construed; and that if so
construed, it would only take in cases of direct benefit
obtained by a public servant for himself or for any other
person from a third party in the manner described therein and
does not cover a case of a wrongful loss caused to the
Government by abuse of his power. The Supreme Court held
as follows:
“First taking the phraseology used in the Clause, the case
of a public servant causing wrongful loss to the
Government by benefiting a third party squarely falls
within it. Let us look at the Clause “by otherwise abusing
the position of a public servant,” for the argument mainly
turns upon the said Clause. The phraseology is very
comprehensive. It covers acts done “otherwise” than by
corrupt or illegal means by an officer abusing his position.
The gist of the offence under this Clause is, that a public
officer abusing his position as a public servant obtains for
himself or for any other person any valuable thing or
pecuniary advantage. “Abuse” means mis-use, i.e. using
his position for something for which it is not intended. That
abuse may be by corrupt or illegal means or otherwise than
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
those means. The word 'otherwise' has wide connotation
and if no limitation is placed on it, the words, 'corrupt',
'illegal', and 'otherwise' mentioned in the clause become
surplusage, for on that construction every a buse of
position is gathered by the clause. So, some limitation will
have to be put on that word and that limitation is that it
takes colour from the preceding words along with which it
appears in the clause, that is to say, something savouring
of dishonest act on his part. The contention of the learned
counsel that if the clause is widely construed even a
recommendation made by a public servant for securing a
job for another may come within the clause and that could
not have been the intention of the Legislature. But, in our
view such innocuous acts will not be covered by the said
clause. The juxtaposition of the word 'otherwise' with the
words 'corrupt or illegal means', and the dishonesty
implicit in the word 'abuse' indicate the necessity for a
dishonest intention on his part to bring him within the
meaning of the clause. Whether he abused his position or
not depends upon the facts of each case; nor can the word
'obtains' be sought in aid to limit the express words of the
section.”
The above judgment of the Apex Court was quoted with
approval by the same court in Major S.K. Kale v. State of
Maharashtra, 1977 (2) SCC 394.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
61.The findings of the Division Bench of this Court
in the writ petitions that there was non-application of mind
on the part of Al and A2, were given after perusing the
original file and such findings were approved by the
Supreme Court and the said findings do not establish
dishonesty. Mere passing of an order, which may be even
against public interest, cannot be held culpable, as unless
dishonesty is seen in the action of a public servant in
getting a valuable thing to another person without any
public interest, every order of a public servant, which is
found to be made without application of mind and
therefore, not correct, will lead to a prosecution, This could
have never been the intention of the Legislature or
otherwise, every public servant, who passes an incorrect
order without any public interest, can be hauled before a
criminal court and it will lead to disastrous consequences.”
30.At the cost of repetition, it is seen that none of the witnesses have
stated that there is passing of any illegal gratification between the accused.
Admittedly the case proceeds for violation and deviation of approved
planning permission by A5 and A6, the statutory appeal already filed
pending is not in dispute. The answer and remedy for violation of planning
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
permission awaits decision which is pending before the statutory authorities.
In the absence of any culpability, malice and passing of any gratification,
criminal case cannot be strapped on the petitioners, more so, in this case the
alleged violation of planning permission is between the year 2010 and 2011.
Thereafter, planning permission rejected and now appeal is pending from
27.07.2011. In this case, suo motu FIR registered in the year 2014,
thereafter investigation completed charge sheet filed in the year 2019 and
the case taken on file in the year 2021. Added to it, sanction granted against
the public servants by L.W.1, from the statement and sanction order/L.D.1 it
is clear that a report received from DVAC on 24.12.2018 along with the
investigation report and case related documents, on perusal of the same, he
accorded sanction for prosecution for offence under Sections 109, 120-B,
177, 202 and 420 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of
Corruption Act. In the sanction order, A5 and A6 are referred as A4 and A5
and as regards S.P.Viswam [A4], he is referred as A7. Admittedly, in this
case, there are only six accused. Neither in the statement nor in the sanction
order, there is any reference to any of the writ petitions, more particularly,
W.P.No.3892 of 2012 and W.P.No.15734 of 2013, wherein specific
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
directions were issued by the First Bench of this Court. Further, in the
charge sheet, the petitioners are charged for the offences under Sections
166, 177, 468, 471, 477A, 420 r/w. 109 IPC and Section 13(2) r/w. 13(1)(d)
of Prevention of Corruption Act, strangely Sections 120-B and 202 IPC left
out and there are inclusion of Sections 167, 468, 471 and 477A IPC. Added
to it, though sanction has been accorded to A1/Gnanamani, A2/Mookiah
and A3/Nagarajan, from the reading of the sanction order, it is seen there is
no reference of any overt act of A3/Nagarajan. Thus, it is clear that the
sanction order reflects clear non-application of mind. The sanctioning
authority's independent application of mind is sine qua non. The sanction
order does not reflect the demonstration of fact to explicitly show
application of mind on the part of the sanctioning authority. In view of the
above narrative, this Court is inclined to allow the Criminal Revision cases.
31.Further, in this case A4 who is a Supervisor prepared the office
note, charging fee for Special Building instead of charging fee for Multi-
storied Building and collected lesser amount. A4 role is limited to prepare
office note based on the file put up to him, not vested with any field work.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
Though A4 had not filed any petition finding that he is also similarly placed
as that of the petitioners herein, A4 is also entitled to the same relief.
32.In the result, the order passed by the learned Special Judge for the
cases under Vigilance and Anti-Corruption Act, Coimbatore in
C.M.P.No.453 of 2021, C.M.P.No.343 of 2021, C.M.P.No.344 of 2021,
C.M.P.No.342 of 2021 and C.M.P.No.392 of 2021 dated 31.01.2022 is
hereby set aside, consequently the case in Spl.C.C.No.2 of 2021 against all
the accused is quashed. The petitioners and A4 are acquitted from all the
charges levelled against them. Accordingly, Criminal Revision Petitions are
allowed.
28.04.2023
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes
cse
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
To
1.The Inspector of Police,
Vigilance and Anti-Corruption,
Coimbatore.
2.The Special Judge for the cases under
Vigilance and Anti-Corruption Act,
Coimbatore.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
M.NIRMAL KUMAR, J.
cse
Pre-delivery order made in
Crl.R.C.Nos.272, 126, 127,
328 & 343 of 2022
28.04.2023
https://www.mhc.tn.gov.in/judis
