Abdunnasar T.S. and Sanal Kumar A.P. v. State of Kerala and Deputy Superintendent of Police, VACB, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942 Crl.MC.No.4835 OF 2017(D)** **CRIME NO.18/2016 OF VACB, KOZHIKODE , Kozhikode** ## **PETITIONERS/ACCUSED 1 & 2:** **1 ABDUNNASAR T S/O.AMMAD, AGED 47 YEARS,PILASSERY HOUSE, KANNADIKKAL, VENGERI P.O., KOZHIKODE - 673 010. 2 SANAL KUMAR.A.P. S/O.GANGADHARAN, AGED 40 YEARS,'SUDARSANAM', PANOLI, MARIKUNNU P.O.,KOZHIKODE - 673 012. BY ADVS. SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV SRI.T.R.HARIKUMAR** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, KOCHI - 682 031.** - **2 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU UNIT,KOZHIKODE - 673 001. R1 BY ADV. PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI B JAYASURYA -SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.02.2021, THE COURT ON 04.02.2021,PASSED THE FOLLOWING:** **Crl.M.C.No.4835/2017** 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.4835 of 2017 --------------------------------------------Dated this the 4[th] day of February, 2021 ## **O R D E R** The petitioners are the first and the second accused in the case registered as V.C.No.18/2016 by the Vigilance and AntiCorruption Bureau (VACB), Kozhikode. 2. The offences alleged against the petitioners in Annexure -I FIR are under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Section 120B of the Indian Penal Code. 3. The prosecution case is that, the first and the second accused, who were officiating as Secretaries of the Feroke Grama Panchayat during the period from 01.01.2012 to 02.07.2013 and 30.07.2014 to 31.07.2015 respectively, hatched a criminal conspiracy with the third accused and pursuant to such conspiracy, they abused their official position and granted building permit, without the approval of the Town Planning **Crl.M.C.No.4835/2017** 3 Officer, to the third accused in respect of a building constructed in wet land and that they did not impose building tax at threefold rate of the normal rate which should have been imposed and thereby caused huge loss to the Government and corresponding pecuniary gain to the third accused. 4. The case against the petitioners was registered after conducting a preliminary enquiry by the VACB on the basis of the facts revealed in a surprise check. 5. This petition is filed under Section 482 of the Code of Criminal Procedure (for short 'the Code') by the petitioners for quashing Anneuxre-I FIR. 6. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 7. In **Amish Devgan v. Union of India : (2021) 1 SCC** ## **1** , the Apex Court has held as follows: _“The FIR is not an encyclopaedia disclosing all facts and details relating to the offence. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. He need not necessarily be an eye-witness. What is essential is that the information must disclose the commission of a cognizable offence_ **Crl.M.C.No.4835/2017** 4 _and the information must provide basis for the police officer to suspect commission of the offence. Thus, at this stage, it is enough if the police officer on the information given suspects--though he may not be convinced or satisfied--that a cognizable offence has been committed. Truthfulness of the information would be a matter of investigation and only thereupon the police will be able to report on the truthfulness or otherwise. .......... even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence. Thus, the information disclosing commission of a cognizable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law. The true test for a valid FIR, ...... is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Code of Criminal Procedure to investigate. The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognizable offence”._ (emphasis supplied) **Crl.M.C.No.4835/2017** 5 8. Keeping in mind the above principles, at the time of hearing, this Court expressed the view that the allegations in Anneuxre-I FIR, if taken on their face value, disclose commission of the offences alleged against the petitioners and therefore, it would not be proper for this Court to quash the FIR. When the case came up for hearing on 08.07.2020, the learned Public Prosecutor had submitted before this Court that the investigation of the case has reached the final stage. In view of this fact, this Court also expressed the view that, when the investigation of the case had reached the final stage, it should be allowed to reach its logical end. In the aforesaid situation, learned counsel for the petitioners submitted that, if the Court is not inclined to quash the FIR, the benefit of the interim order passed by this Court may be allowed to the petitioners till the date of filing the final report in the case. 9. In the interim order dated 14.7.2017 passed by this Court, it has been stated as follows:- “It is clarified and ordered that pendency of a crime shall not be reckoned for anything against the service matters of the petitioners including their due promotion and other benefits.” **Crl.M.C.No.4835/2017** 6 10. On finding that the FIR against the petitioners cannot be quashed, this Court feels that the benefit of the above interim order has to be given to the petitioners till the investigating officer files final report in the case. 11. Consequently, the prayer for quashing Annexure-I FIR is rejected and the petition is dismissed. However, it is made clear that the benefit granted to the petitioners as per the interim order dated 14.07.2017 passed by this Court in this Crl.M.C shall be available to them till the date of filing the final report in the case. The petitioners are at liberty to challenge the final report at the appropriate stage, if so advised. Sd/- **R.NARAYANA PISHARADI, JUDGE** al/- **Crl.M.C.No.4835/2017** 7 ## **APPENDIX** ## **PETITIONERS EXHIBITS :** **ANNEXURE-I: CERTIFIED COPY OF THE FIR DATED 03.10.2016 IN CRIME NO.18/2016 OF THE VACB, KOZHIKODE. ANNEXURE-II: A TRUE COPY OF THE APPLICATION DATED 24.11.2011, SUBMITTED BY THE 3RD ACCUSED CONTAINING THE RECOMMENDATION OF THE AE, LSGD, FEROKE.** - **ANNEXURE-III: A TRUE COPY OF THE BUILDING PERMIT NO.A4-18712/11 DATED 06.03.2012 ISSUED BY THE FEROKE GRAMA PANCHAYAT.** - **ANNEXURE-IV: A TRUE COPY OF THE INTERIM ORDER DATED 10.10.2012 IN I.A.NO.13685/2012 IN WP(C) NO.23435 OF 2012.** - **ANNEXURE-V: A TRUE COPY OF THE COMMISSION REPORT DATED 30.10.2012 FILE IN I.A.NO.13685/2012 IN WP(C) NO.23435 OF 2012.** **ANNEXURE-VI: A TRUE COPY OF THE JUDGMENT DATED 11.12.2013 IN WP(C) NO.23435 OF 2012. ANNEXURE-VII: A TRUE COPY OF THE BUILDING PERMIT DATED 06.03.2012, CONTAINING THE CHANGE OF OCCUPANCY ISSUED BY THE FEROKE GRAMA PANCHAYAT.** **ANNEXURE-VIII: A TRUE COPY OF THE LETTER DATED 18.03.2014, ISSUED BY THE FEROKE GRAMA PANCHAYAT. ANNEXURE-IX: A TRUE COPY OF THE LETTER DATED 23.07.2014, ISSUED BY THE DISTRICT TOWN PLANNER, KOZHIKODE.** **Crl.M.C.No.4835/2017** 8 **ANNEXURE-X: A TRUE COPY OF THE INTERIM ORDER DATED 26.05.2015 IN WP(C) NO.15333 OF 2015. ANNEXURE-XI: A TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 08.06.2015, ISSUED BY THE SECRETARY, FEROKE GRAMA PANCHAYAT.** **ANNEXURE-XII: A TRUE COPY OF THE RELEVANT PAGE OF THE ADANGAL REGISTER MAINTAINED AT THE FEROKE VILLAGE OFFICE.** ## **RESPONDENTS EXHIBITS : NIL** **TRUE COPY** **P.S TO JUDGE** **AL/-**