Alex C. Joseph v. Central Bureau of Investigation

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 ``` ``` OP(CRL.) NO. 185 OF 2022 ``` ``` SEEKING TO QUASH THE CHARGE SHEET/FINAL REPORT IN RC9(E)/2014/CBI/SCB/TVPM ON THE FILE OF THE SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM ``` ## **`PETITIONER:`** ``` ALEX C. JOSEPH AGED 54 YEARS S/O JOSEPH, CHEKKATTU HOUSE, THADIYOOR P. O, THIRUVALLA, PATHANAMTHITTA, PIN – 689545 ``` ``` BY ADVS. C.S.MANU DILU JOSEPH C.A.ANUPAMAN ``` ## **`RESPONDENT:`** ``` CENTRAL BUREAU OF INVESTIGATION (CBI), SCB, OCR COMPLEX, VALLAKADAVU ROAD, MUTTATHARA P.O, THIRUVANANTHAPURAM, PIN- 695008, REPRESENTED BY ITS SUPERINTENDENT OF POLICE, PIN - 695008 ``` ``` BY ADVS SRI.MANU S., ASG OF INDIA SRI. SUVIN R. MENON, CGC ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P(Crl)No.185 of 2022 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## O.P(Crl). No.185 of 2022 --------------------------------------------- Dated this the 25[th] day of July, 2022 ## **JUDGMENT** Accused No.1 in C.C.No.1 of 2016 on the file of the Special Court (SPE/CBI), Thiruvananthapuram, has filed this Original Petition (Criminal) under Article 227 of the Constitution of India with the following prayers: “(i) Quash Exhibit P1 charge sheet/final report in RC9(E)/2014/CBI/SCB/TVPM on the file of the CBI/SCB, Thiruvananthapuram and all proceedings in C.C.No.1 of 2016 on the file of the Special Court (SPE/CBI), Thiruvananthapuram; (ii) Allow cost of this proceedings to the petitioner, (ii) Grant such other and further reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case.” 2. The gist of the allegations against the petitioner/accused No.1 is as follows:- The petitioner obtained Passport No.T389522 in the name of Abey John from the Regional Passport Office, Mumbai and renewed the same on 04.10.2000 with validity upto 16.10.2004. It was further renewed on 17.10.2004 with validity upto 16.10.2005 and, thereafter from 08.05.2005 to 16.10.2014, by the Office of the ``` O.P(Crl)No.185 of 2022 ``` ``` 3 ``` Consulate General of India, Dubai. On 06.11.2011, the petitioner impersonated himself as Abey John before the Immigration Authorities at Rajiv Gandhi International Airport, Hyderabad. The petitioner used the fake passport and travelled abroad. He is a COFEPOSA warrantee. On his travel from Dubai to Hyderabad using the fake passport on 06.11.2011, he was intercepted by the Immigration Authorities when he landed at the Hyderabad International Airport. In view of the look-out circular, he was handed over to the Kerala Police on 08.11.2011. The petitioner was received by the 2[nd] accused, who was the then Inspector of Police, Thiruvalla Police Station. He was taken to Kerala for being produced before the DySP Thiruvalla and thereafter he was taken to Thiruvananthapuram, wherein he was detained under COFEPOSA. The fake passport was handed over to the 2[nd] accused along with the other documents. On the way accused Nos.1 and 2 hatched a criminal conspiracy to cause disappearance of evidence. Accused No.2 handed over the fake passport in the name of Abey John, to accused No.1 who later destroyed it. ``` O.P(Crl)No.185 of 2022 ``` ``` 4 ``` 3. Initially, the Palarivattom Police registered a crime against the petitioner and the other accused. The investigation was later taken over by the CBI. After completing the investigation the CBI submitted the final report before the Trial Court alleging offences punishable under Sections 201, 419, 420 & 204 r/w 120 B of the Indian Penal Code, Sections 12(a), (b) & (d) of the Indian Passports Act,1967 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. 4. The petitioner filed Crl.M.P.No.175/2016 under Section 239 Cr.P.C. before the Trial Court. Accused No.2 had also filed an application seeking discharge under Section 239 Cr.P.C. The Court below dismissed the applications. 5. The petitioner challenged the order of dismissal of Crl.M.P.No.175/2016, by the Trial Court, in Crl.R.P.No.743/2018 before this Court. This Court dismissed the Crimial Revision Petition as per order dated 05.03.2020 (Ext.P4). The relevant portion of Ext.P4 reads thus: “11. Prima facie, there are materials suggesting that the accused was using the passport obtained in the name of another person. Prosecution is relying on the statement of CWs.11, 12, 13, 14, 15, 16, 17, 18 and 19 to establish the fact that the first accused had landed at the International Airport, Hyderabad and was carrying the passport in the name of Abey John, the interception of the accused and the recovery of the passport from him. ``` O.P(Crl)No.185 of 2022 ``` ``` 5 ``` Prosecution is further relying on the statements of CWs.1 and CW2 to establish that, they have accompanied the second accused to Hyderabad, received the custody of the first accused and the passport, issuance of a receipt to the authorities at Hyderabad regarding the receipt of the passport, returned to Thiruvalla with the first accused, production of the first accused before the DySP, Thiruvalla and taking him to Thiruvananthapuram. Prosecution is also relying on the statements of CWs.4, 5 and 7 to establish that, they know the first accused, who was Alex C Joseph and that, he was not Abey John. Prosecution is also relying on other materials to show that, accused was moving around at different places using different names. 12. The entire facts confirm that, passport was a crucial document to establish the case of the accused. According to the prosecution, passport was a material piece of evidence for the prosecution and the second accused was not authorized to hand over the passport to the first accused. There was no direction from any authority to return the passport. In fact, passport was received by the second accused from Hyderabad after its due acknowledgment. According to the prosecution, inspite of the seriousness and the significance of the passport, second accused handed over the passport to the first accused malafide. The alleged entrustment of passport to the first accused was also not entered in the GD diary of Thiruvalla police station, it was alleged. 13. It is in the above background, the prosecution alleges that, accused nos.1 and 2 entered into a criminal conspiracy to protect the first accused from criminal prosecution and to destroy or conceal the material piece of evidence. Being a pubic servant, the allegation against the second accused is one within the realms of PC Act. The second accused is prosecuted along with the first accused for the above offences under the PC Act with provisions under the IPC. The first accused is prosecuted independently for the provisions under the Passport Act. 14. It seems that DRI launched the criminal proceedings by lodging the FIR at Palarivattom. Thereafter, investigation was taken over by the CBI and the FIR was re-registered. After completion of investigation, final report was laid before the competent court within whose jurisdiction a part of the entire offence took place, sometime in between 07.11.2011 and 10.11.2011 and also at the some place in between Hyderabad to Thiruvalla while on their journey and thereafter while proceeding to Thiruvananthapuram. Since the precise place at which the passport was ``` O.P(Crl)No.185 of 2022 ``` ``` 6 ``` handed over or it was reportedly destroyed or concealed is not clear, there is absolutely no jurisdictional issue. Other offences relating to obtaining forged passport was only ancillary to the main offences which include one under the PC Act. Considering the above facts, I feel that, there is no scope for any interference in the Crl.R.P.” 6. Thereafter, the petitioner filed O.P.(Crl)No.99/2022 before this Court, challenging the final report and all proceedings in the Trial Court, under Article 227 of the Constitution of India. As per judgment dated 14.03.2022, this Court dismissed the Original Petition. The petitioner is again before this Court, invoking Article 227 of the Constitution of India, to challenge the final report and all proceedings in the Trial Court. 7. The learned counsel for the petitioner submitted that the allegations levelled against the petitioner in the final report do not reveal the offence under Section 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, and therefore, the prosecution will not survive. 8. The learned Central Government Counsel submitted that the petitioner had agitated all these issues in the Crl.R.P.No.743/2018 and thereafter in O.P.(Crl.)No.99/2022. The learned Central Government Counsel contended that in view of the dismissal of the Criminal Revision Petition, the present petition filed under Article 227 of the Constitution of India is not ``` O.P(Crl)No.185 of 2022 ``` ``` 7 ``` maintainable as it would amount to misuse of the judicial proceedings. 9. Going by the order of this Court dated 05.03.2020 in Crl.R.P.No.743/2018, the relevant portion of which is extracted above, it is seen that the issues raised herein were already considered on merits. The petitioner could not bring to the notice of this Court any patent perversity in the proceedings of the Trial Court. He has not succeeded in establishing that there was gross and manifest failure of justice in the proceedings of the Court below. The petitioner has already availed the remedies available to him while challenging the order of dismissal of the Crl.M.P.No.175/2016. 10. In **K.V.S.Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that in exercise of its power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the Tribunal, only, when there has been a patent perversity in the orders of Tribunal and Courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. ## 11. In **Sobhana Nair K.N. v. Shaji S.G.Nair (2016 (1)** ``` O.P(Crl)No.185 of 2022 ``` ``` 8 ``` **KHC 1 : ILR 2016 (1) Kerala 537)** a Division Bench of this Court held that the law is well settled by a catena of decisions of the Apex Court that, in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower Court or Tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate Court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower Court or Tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower Court or Tribunal is in direct conflict with settled principles of law. ## 12. In **M/s.Garment Craft v. Prakash Chand Goel [(2022) 4** ## **SCC 181]** the Apex Court held thus:- “18. …..The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can ``` O.P(Crl)No.185 of 2022 ``` ``` 9 ``` possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice……....” 13. Viewed in the light of the principles discussed above, this Court finds no reason to interfere with the final report in C.C.No.1/2016 on the file of the Special Court (SPE/CBI), Thiruvananthapuram. The Original Petition lacks merits and is dismissed. ``` Sd/- K.BABU JUDGE ``` VPK ``` O.P(Crl)No.185 of 2022 ``` ``` 10 ``` ## **`APPENDIX OF OP(CRL.) 185/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P-1 ``` - `TRUE COPY OF THE CHARGE SHEET / FINAL REPORT NO. RC9(E)/ 2014/CBI/SCB/TVPM ON THE FILE OF THE CBI/SCB, THIRUVANANTHAPURAM` ``` Exhibit P-2TRUE COPY OF THE REPORT SUBMITTED BY THE SUPERINTENDENT OF POLICE, THIRUVALLA TO THE DISTRICT POLICE CHIEF, PATHANAMTHITTA ON 9-12-2011 ``` ``` Exhibit P-3TRUE COPY OF THE REPORT DATED 24-12-2011 SUBMITTED BY THE DISTRICT POLICE CHIEF, PATHANAMTHITTA ON 24-12-2011 TO THE JOINT DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, KOCHI REGIONAL UNIT AND PRODUCED AS DOCUMENT NO.67 BY THE ``` - `RESPONDENT ALONG WITH EXHIBIT P-1 FINAL REPORT` - `Exhibit P-4 TRUE COPY OF THE ORDER DATED 5-3-2020 IN CRL. REV. PET. NO. 743 OF 2018 PASSED BY THIS HON'BLE COURT` - `Exhibit P-5 TRUE COPY OF THE JUDGEMENT DATED 14-3-2022 IN OP(CRL.) 99 OF 2022 PASSED BY THIS HON'BLE COURT`