A.M. Naseer, S.M. Sherief and S.B. Basheer v. S. Sajimon and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Crl.MC.No. 2328 of 2008() ------------------------CRMP.128/2008 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... PETITIONER(S): --------------- 1. A.M.NASEER, AGED 44 YEARS, S/O ABDULLA KOYA, FIRDOUZ, ZACHARIA BAZAR, ALAPPUZHA. 2. S.M.SHERIEF, AGED 54 YEARS, S/O P.M. SULAIMAN,COIR HOUSE, ZACHARIA BAZAR, ALAPPUZHA. 3. S.B.BASHEER, AGED 56 YEARS, S/O BAVA MOOPPEN, FAIZAL MANZIL,LAJNATH WARD, ALAPPUZHA. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN ABRAHAM M.GEORGE SRI.P.G.PRAMOD RESPONDENT(S): --------------- 1. S.SAJIMON, AGED 32 YEARS, S/O E.SAIDU MUHAMMED, BISMI LAND, VATTAYAL WARD, ALAPPUZHA -2. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No. 2328 of 2008 ------------------------------------------------Dated this the 10[th] day of November, 2008** ## **ORDER** The petitioners are accused 1 to 3 in a complaint filed by the 1[st] respondent before the Special Judge and Enquiry Commissioner (Vigilance), Trivandrum. In the said complaint it was alleged that the petitioners and another had committed the offences punishable under Secs.7 and 13 of the Prevention of Corruption Act as also offences under Secs.406, 409, 468 and 471 read with Sec.120B IPC. On receipt of the said complaint, the learned Special Judge by Annexure-A7 order referred the matter to the Director, Vigilance and Anti Corruption Bureau with the direction to conduct a vigilance enquiry into the allegations raised in the complaint. 2. The petitioners contend that they are the office ## **Crl.M.C. No. 2328 of 2008** -: 2 :- bearers of an organization by name “Lajnathil Muhammadiya”. The allegation in the complaint is that the said entity is a Wakf institution. The petitioners stoutly contest this assertion. They submit that by Annexure-A2 judgment and Annexure-A3 decree it has been settled beyond the trace of controversy that Lajnathil Muhammadiya is not a Wakf. In the light of the said decision it cannot be accepted that the said Lajnathil Muhammadiya of which the petitioners are the office bearers is a Wakf. Therefore the assertion that Lajnathil Muhammadiya is a Wakf and hence the petitioners are the public servants is not correct and should not be accepted. At any rate, the Special Judge appears to have lightly sailed to the conclusion that the said Lajnathil Muhammadiya is a Wakf and consequently the petitioners are public servants. No application of mind had at all taken place and for reasons not decipherable, the Special Judge assumed that Lajnathil Muhammadiya is a Wakf. Annexures-A2 and A3 were not brought to the notice of the learned Judge and this had led to doubts and confusion on the aspect, submits the learned counsel for the petitioners. 3. The respondent/complainant, on the contrary, asserts that though Annexures-A2 and A3 are not denied, long later, in 1992, there has been the registration of Lajnathil Muhammadiya ## **Crl.M.C. No. 2328 of 2008** -: 3 :- as a Wakf. The learned counsel submits that the learned Special Judge has committed no error in proceeding on the assumption that Lajnathil Muhammadiya is a Wakf. 4. In the light Annexures-A2 and A3, I have no hesitation to agree that the learned Special Judge must have pointedly considered the question whether Lajnathil Muhammadiya is a Wakf or not. That having not been considered, I find the assumption that the petitioners are the officer bearers of the Wakf and consequently public servants cannot on the face of it be accepted. 5. The learned counsel for the respondent/complainant submits that given an opportunity it shall be possible for the complainant to establish beyond any trace of doubt that Lajnathil Muhammadiya, notwithstanding AnnexuresA2 and A3 is a Wakf and is registered as such Wakf. The learned counsel prays that an opportunity may be granted, if this Court were not satisfied with Annexure-A7 order passed by the learned Special Judge, to the complaint to produce all necessary documents to instill the requisite satisfaction in the mind of the learned Special Judge. 6. There is another contention that Lajnathil Muhammadiya is running a Higher Secondary School and in the capacity as an ## **Crl.M.C. No. 2328 of 2008** -: 4 :- institution running the Higher Secondary School which, in turn, receives aids from the Government, the office bearers of such Lajnathil Muhammadiya running a Higher Secondary School must be deemed to be public servants. There is no serious dispute on this aspect. But a contention is raised that even if the petitioners were reckoned as public servants in their capacity as the office bearers of the entity running the Higher Secondary School, there is absolutely nothing to assume that any contumacious or culpable conduct has been indulged in by the petitioners. The learned counsel relies on the circumstance that no specific allegation has been raised of any student making payment of any illicit gratification to any of the petitioners or othersto justify an allegation of misappropriation or the offence under the P.C. Act. 7. I have been taken through the complaint. I find merit in that contention of the petitioners. Sweeping allegations have been raised; but no specific and tangible allegation of any instance of illegal gratification to enable any students to secure admission to the school is seen alleged or substantiated. 8. The learned counsel for the respondent/complaint submits that on this aspect also, if an opportunity were granted, ## **Crl.M.C. No. 2328 of 2008** -: 5 :- specific materials can be placed before the learned Special Judge. 9. I am, in these circumstances, satisfied that Annexure-A7 order suffers from the vice of the learned Judge not pointedly adverting to the above two aspects specifically referred to. I am satisfied that Annexure-A7 order deserves to be set aside and the matter deserves to be sent back to the Special Judge for fresh consideration of the complaint. 10. It is not necessary to advert to the nature of the jurisdiction of the learned Special Judge at the threshold or the precedents on the point. The learned Special Judge must take an informed decision as to whether the matter deserves to be referred for enquiry/investigation under Sec.156(3) Cr.P.C. to the police (VACB). An informed decision has to be taken in the matter and the mere fact that the allegations have been raised cannot ipso facto lead to mechanical reference of the complaint to the police under Section 156(3) Cr.P.C. A roving enquiry/investigation by the police/VACB as to whether any offence has been committed by the petitioners in the course of their functioning as office bearers of the entity running the Higher Secondary School is certainly not justified. Mind has to be applied by the learned Special Judge to decide whether the ## **Crl.M.C. No. 2328 of 2008** -: 6 :- matter deserves to be referred under Sec.156(3) Cr.P.C. The consequences which the persons arrayed as accused will have endure if an undeserved reference were made will have to be borne in mind. The learned counsel for the petitioners rightly relies on the decision in **Divine Retreat Centre v. State of Kerala** (2008 (1) KLT 1042 (SC)) in support of his contention that a roving and general enquiry into the affairs of a society cannot and should not be directed under Sec.156(3) Cr.P.C. The learned counsel for the petitioners is correct in his submission that if sufficient materials to induce the satisfaction under Sec.156(3) Cr.P.C. are not made available, the learned Judge must proceed to take cognizance by conducting an enquiry under Sec.200 and Sec.202 Cr.P.C. At the stage of Sec.202 Cr.P.C., if the learned Special Judge feels the necessity, investigation can also be directed to be held, to collect further materials to decide whether initiation of the proceedings and issue of processes under Sec.204 Cr.P.C. is necessary. 11. I do not intend to come to any final conclusion. I need only mention that the learned Special Judge must apply his mind afresh to the materials produced and consider whether the matter deserves to be referred to the police under Sec.156(3) Cr.P.C. In the alternative, the learned Special Judge must ## **Crl.M.C. No. 2328 of 2008** -: 7 :- consider whether enquiry deserves to be conducted under Sec.200/202 Cr.P.C. and whether at that stage investigation deserves to be directed by appropriate persons/police official. 12. With the above observations, this Crl.M.C. is allowed and the impugned order Annexure-A7 is set aside. The learned Special Judge shall consider the matter afresh and take appropriate decision. ## **(R. BASANT, JUDGE)** **Nan/**