Abdul Nazar v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` CRL.MC NO. 5978 OF 2023 ``` ``` CRIME NO.VC1/2019 OF VACB, MALAPPURAM, Malappuram AGAINST THE ORDER/JUDGMENT CC 10/2023 OF ENQUIRY COMR.& SPECIAL ``` ``` JUDGE,KZD. ``` ## **`PETITIONER:`** ``` ABDUL NAZAR AGED 42 YEARS S/O. MUHAMMEDKUTTY, VALIYIL HOUSE, PUNNATHALA P.O. , TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676552 BY ADVS. ESM.KABEER C.SHEEBA ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI{ORRUPTION BUREAU, MUNDUPARAMBA, MALAPPURAM., PIN - 676509 3MANZOOR C.P S/O. HAMSA C.P., CHITTEPURATHU HOUSE, KATTAMKUNNU, KURUMBATHUR P.O. , MALAPPURAM, PIN - 676301 ``` ## **`OTHER PRESENT:`** ``` RAJESH A,SPL GP VIGILANCE,REKHA,SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5978 OF 2023 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## Crl.M.C.No.5978 of 2023 --------------------------------------- Dated this the 22[nd ] day of December, 2023 ## **O R D E R** The petitioner challenges the final report and all further proceedings initiated against him in C.C.No.10 of 2023 on the file of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Kozhikode. The petitioner faces charge under Section 7 of the Prevention of Corruption Act 1988. 2. The prosecution case is as follows:- Respondent No.3, the defacto complainant, is a licensed building Supervisor registered under the provisions of the Kerala Municipality Building Rules 1999. He prepared drawings for the construction of a residential building for his cousin Sri.Abdul Majeed at Mannekkara in Athavanadu Grama Panchayath and submitted along with the application for obtaining building permit before the Athavanadu Grama Panchayath on 29.05.2018. After a week, the defacto complainant contacted the petitioner, who was employed as Overseer of the Grama Panchayath for processing the ``` CRL.MC NO. 5978 OF 2023 ``` ``` 3 ``` application. The petitioner visited the site and informed respondent No.3 that the work was not being carried out as per the Kerala Municipality Building Rules. He insisted for altering the plan. After a week the defacto complainant submitted a rectified plan. He approached the petitioner seeking permit. The petitioner demanded Rs. 2,000/- for submitting a favourable report before the Local Authority. Respondent No.3 approached the Deputy Superintendent of Police, VACB, Malappuram on 22.01.2019 and lodged a complaint. Based on the complaint submitted by the defacto complainant, the Vigilance and Anti Corruption Bureau registered FIR as VC.01/2019/MPM under Section 7 of the PC Act. The VACB laid a trap. Four currency notes of Rs.500/- denomination were presented by the defacto complainant, and the VACB instructed the defacto complainant to hand over the money smeared with phenolphthalein powder to the petitioner if he demanded. The VACB team, along with the defacto complainant, reached the office of Athavanad Grama Panchayath. The defacto complainant approached the petitioner at his office. He demanded the bribe money. The defacto complainant handed over the currency notes to the petitioner. The petitioner ``` CRL.MC NO. 5978 OF 2023 ``` ``` 4 ``` accepted the same. He indicated the signal that the petitioner received the money to the Detecting Officer, who along with the officials rushed to the office of the Local Authority, conducted phenolphthalein test on the hands of the petitioner which turned positive. The Detecting Officer questioned the petitioner as to whether he accepted the bribe money from the defacto complainant. He revealed to the Detecting Officer that the he handed over the money to one Hussain Kambath, a contractor who was also in the office. The Detecting Officer recovered the tainted currency notes from the possession of Sri.Hussain Kambath, who was present in the office. Phenolphthalein test conducted on the left hand of Sri.Hussain Kambath was also positive. Later, on interrogation, the VACB assertained that the petitioner entrusted the money to Sri. Hussain Kambath for handing it over to a shop owner near the Panchayath Office with the intend to hide the same. As the narration of Sri. Hussain Kambath was found to be genuine he was not arrayed as an accused. 3. After completing the investigation, the VACB submitted final report alleging offence punishable under Section 7 of the PC Act. ``` CRL.MC NO. 5978 OF 2023 ``` ``` 5 ``` 4. Heard the learned counsel for the petitioner Sri.Muhammed Kabeer and the learned Special Government Pleader (Vigilance) Sri.A.Rajesh. 5. The learned counsel for the petitioner challenges the final report on the following grounds:- - a) The petitioner was not a public servant at the relevant time. - b) The Detecting Officer seized the tainted currency notes from a stranger. - c) The delay in obtaining sanction to prosecute the petitioner vitiates the entire proceedings. 6. The learned Special Government Pleader contended that the prosecution could place materials sufficient to attract the offences alleged. It is further submitted that the contentions raised by the petitioner are matters to be agitated during trial and the grounds raised by the petitioner are not sufficient to terminate the proceedings at this stage. 7. The principal challenge of the petitioner is that he was not a public servant at the relevant time. The prosecution case, especially based on the complaint preferred by the defacto complainant, is that the defacto complainant ``` CRL.MC NO. 5978 OF 2023 ``` ``` 6 ``` approached the petitioner for getting a permit for the construction of a building for which he submitted an application before the Local Authority. The case of the prosecution is that the petitioner was employed as an Overseer on temporary basis in the Local Authority. It is the case of the defacto complainant that when he approached the petitioner, he demanded money for submitting a favourable report. According to the defacto complainant, the petitioner demanded a sum of Rs.2,000/- as bribe for processing the papers relating to the the permit on 14.11.2018, 21.11.2018 18.12.2018 and on 22.01.2019. 8. The learned counsel for the petitioner submitted that, even according to the prosecution, in the month of January 2019, the petitioner had not put his initials in the attendance register which would show that he was not employed as an Overseer in the Local Authority at the relevant time. The prosecution records would revel that the petitioner was employed as an Overseer on temporary basis and that he received salary till 31.12.2018. 9. The learned Special Government Pleader submitted that the Investigating Officer could collect materials to show ``` CRL.MC NO. 5978 OF 2023 ``` ``` 7 ``` that though the petitioner was employed on daily wages, the practice was to disburse his salary at the end of the month. 10. The learned Special Government Pleader further submitted that the Officials of the Grama Panchayath cited as witnesses, deposed that the petitioner was present in the office on the relevant day and was discharging official duties there. The fact that he did not affix his initials in the attendance register, is not a ground to show that he was not employed there, and moreover, there is evidence to show that he demanded money from the defacto complainant on three other previous occasions. Referring to the definition of ‘public servant’ as contained in Section 2 (c) of the PC Act, the learned counsel for the petitioner submitted that the petitioner cannot be treated as a ‘public servant’ as on the date of the trap that is, on 22.01.2019. A ‘public servant’ as per Section 2(C) (ii) of the PC Act is any person in the service or pay of a local authority. The prosecution could produce materials to show that the petitioner was engaged on temporary basis as an Overseer and that he has been receiving remuneration from the Local Authority. Therefore, it is to be concluded that the materials produced by the prosecution would prima facie ``` CRL.MC NO. 5978 OF 2023 ``` ``` 8 ``` establish that he was in the service on the pay of the local authority at the relevant time. 11. The second ground urged by the learned counsel for the petitioner is that the trap money was recovered from the posession of one Hussain Kambath, another contractor, which, according to the learned counsel for petitioner, would defeat the prosecution case. The specific case of the prosecution is that the defacto complainant handed over the trap money to the petitioner and that he received it and thereafter, on getting information that the Vigilance team rushed to the office, handed over the same to a contractor standing beside him to be entrusted to a near by shop owner with intend to hide. It is pertinent to note that the prosecution records would reveal that the phenolphthalein test conducted on the hands of the petitioner turned positive. The phenolphthalein test conducted on the hands of Mr. Hussain Kambath also turned positive. These materials would prima facie establish that the petitioner received money from the defacto complainant as alleged by the prosecution. 12. The learned counsel for the petitioner further challenges the final report on the ground that sanction was ``` CRL.MC NO. 5978 OF 2023 ``` ``` 9 ``` accorded to prosecute the petitioner belatedly by the sanctioning the authority. It is submitted that sanction under Section 19 of the PC Act was accorded after 3 years. 13. The learned counsel for the petitioner, relying on the third proviso to Section 19 (c) of the PC Act, submitted that the sanctioning authority ought to have accorded sanction within a period of three months from the date of receipt of the proposal requiring sanction. 14. The learned Special Government Pleader submitted that the delay in according sanction is not a ground to challenge a final report. The learned Special Government Pleader relied on the decision of the Apex Court in **Vijay Rajmohan v. Sub Inspector of Police** **[MANU/SC/1300/2022]** to substantiate his contention. In **Vijay Rajmohan v. Sub Inspector of Police,** the Apex Court held thus:- “Non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the Rule of law”. 15. I have carefully gone through the prosecution ``` CRL.MC NO. 5978 OF 2023 ``` ``` 10 ``` materials made available. The allegations made in the complaint and other prosecution records would reveal the offences alleged. 16. It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations **{Vide: State of West Bengal v. Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370]}** . 17. In **State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651],** the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In **State of U.P v. O.P.Sharma [(1996) 7 SCC 705]** , a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 ``` CRL.MC NO. 5978 OF 2023 ``` ``` 11 ``` Cr.P.C or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397], wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in **Mahendra K.C. v. State of Karnataka and Ors. (AIR 2021 SC 5711)** . 18. In the present case, the petitioner failed to convince the Court that the allegations levelled against him in the final ``` CRL.MC NO. 5978 OF 2023 ``` ``` 12 ``` report do not disclose the offence alleged. The correctness or otherwise of the allegations levelled in the final report is a matter to be tested during the course of the trial. I make it clear that I have not made any observations on the merit or otherwise of the allegations levelled in the final report. The Criminal M.C. lacks merits. It stands dismissed. Sd/- **K.BABU, JUDGE** saap ``` CRL.MC NO. 5978 OF 2023 ``` ``` 13 ``` ## **`APPENDIX OF CRL.MC 5978/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`TRUE COPY OF THE FIR 1/19/MPM DATED 22-01-`| ||`2019 FILED AGAINST THE PETITIONER`| |`Annexure A2`|`TRUE COPY OF THE FI STATEMENT DATED 22-01-`| ||`2019 AGAINST THE PETITIONER.`| |`Annexure A3`|`TRUE COPY OF THE STATEMENT SUBMITTED BY THE`| ||`2ND RESPONDENT IN CRL M.C NO.3707/2021 DATED`| ||`26-08-2021`| |`Annexure A4`|`TRUE COPY OF THE JUDGMENT IN CRL.M.C`| ||`3707/2021 DATED 06-07-2023`| |`Annexure A5`|`CERTIFIED COPY OF THE FINAL REPORT SUBMITTED`| ||`BEFORE THE HON'BLE COURT OF THE ENQUIRY`| ||`COMMISSIONER AND SPECIAL JUDGE(VIGILANCE),`| ||`KOZHIKODE DATED 27-03-2023`| |`Annexure A6`|`TRUE COPY OF THE REGISTER OF THE PANCHAYAT`| ||`ATTENDANCE TILL 31-12-2018 OF THE PETITIONER`| |`Annexure A7`|`TRUE COPY OF THE SANCTION ORDER DATED 5-12-`| ||`2022 ISSUED BY THE SECRETARY OF ATHAVANADU`| ||`GRAMA PANCHAYAT`| //True copy//PA to Judge