Anti Corruption & Human Rights Protection Council v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY** **& THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940** **WP(C).No. 7221 of 2012** ## **PETITIONER(S)** **THE ANTI CORRUPTION & HUMAN RIGHTS PROTECTION COUNCIL (REGISTRATION NO CA-597/6) REPRESENTED BY ITS STATE PRESIDENT, ISSAC VARGHESE, ZAM ZAM COMPLEX, METTUPALAYAM STREET, PALAKKAD-678001** **BY ADVS.SRI.MANSOOR.B.H. SRI.BABU S. NAIR** **SRI.P.A.RAJESH** ## **RESPONDENT(S):** ## **1. STATE OF KERALA** - **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT VIGILANCE(B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM** **2. THE PRINCIPAL SECRETARY TO THE GOVERNMENT, PLANNING AND ECONOMIC AFFAIRS (BPE)DEPARTMENT THIRUVANANTHAPURAM** **3. DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM** **4. SRI.JOHN MATHAI, I.A.S.(RETD),FORMERLY CHAIRMAN M/S.MALABAR CEMENTS LIMITED, MALANCHARUVIL, T.C.NO 4/1710, KAVADIYAR,THIRUVANANTHAPURAM-695003** **5. T.PADMANABHAN NAIR, FORMERLY DIRECTOR, M/S.MALABAR CEMENTS LIMITED, T.C.NO 11/381, DEVASWOM BOARD JUNCTION KAVADIYAR,THIRUVANANTHAPURAM** ## **6. N.KRISHNAKUMAR,** **FORMERLY DIRECTOR, M/S.MALABAR CEMENTS LIMITED, T.C.NO 50/1054-1, SREE KRISHNA NAGAR, THALAIL, KARAMANA THIRUVANANTHAPURAM-695002** **R4 BY ADV. SRI.ALAN PAPALI R4 BY ADV. SRI.GILBERT GEORGE CORREYA R4 BY ADV. SRI.SOJAN MICHEAL** ## **WP(C).No. 7221 of 2012** **R4 BY ADV. SRI.V.S.BOBAN R5 AND 6 BY ADV. SRI.B.RAMAN PILLAI R5 AND 6 BY ADV. SRI.R.ANIL R5 AND 6 BY ADV. SRI.SUJESH MENON V.B. R5 AND 6 BY ADV. SRI.SHYAM ARAVIND R5 AND 6 BY ADV. SRI.T.ANIL KUMAR R5 AND 6 BY ADV. SRI.MANU TOM RR. BY ADV. GOVERNMENT PLEADER RNOT A PARTY BY ADV. SRI.BINOY VASUDEVAN R BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7221 of 2012** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXHIBIT -P1 TRUE COPY OF THE JUDGMENT DATED 04.06.2007 IN W.P(C).NO.2074/2007 EXHIBIT P2-TRUE COPY OF THE JUDGMENT DATED 18.07.2008 IN W.P(C).NO.6006/2008 EXHIBIT P3- TRUE COPY OF THE JUDGMENT DATED 23.01.2009 IN W.P(C).NO.1376/2009** **EXHIBIT P4- TRUE COPY OF THE JUDGMENT DATED 21.12.2010 IN W.P(C).NO.29581/2010** **EXHIBIT P5- TRUE COPY OF THE COMMON JUDGMENT DATED 06.01.2010 IN W.P(C).NO.11502 &18783/2009** **EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BY THE CENTRAL BUREAU OF INVESTIGATION IN W.P(C).NO.11502 /2009** **EXHIBIT P7 TRUE COPY OF THE G.O(P) NO.18/97/VIG. DATED 05.04.1997** **EXHIBIT P8 TRUE COPY OF G.O(MS) NO.11/2012/VIG. DATED 22.02.2012** **EXHIBIT P9 TRUE COPY OF THE G.O(P) NO.65/92/VIG. DATED 12.05.1992** **EXHIBIT P10 TRUE COPY OF THE MASTER CIRCULAR NO.1/2011 ISSUED BY THE MINISTRY OF CORPORATE AFFAIRS DATED 29.07.2011** **EXHIBIT P11 TRUE COPY OF THE CIRCULAR DATED 28.10.2011 ISSUED BY THE SECOND RESPONDENT** ## **RESPONDENTS EXHIBITS:** **EXHIBIT R4(A): A TRUE COPY OF THE LETTER NO.CA IV/A/12-6190/117 DATED 10.12.2009 OF THE SENIOR AUDIT OFFICER, OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL,KERALA** **EXHIBIT R4 (B): A TRUE COPY OF THE SUPPLY DETAILS OF LIME STONE BY M/S.PRAVEEN MINES WITH MALABAR CEMENTS LTD.** **EXHIBIT R4 (c):A TRUE COPY OF THE ABSTRACT OF THE MINUTES OF THE 147TH MEETING OF THE BOARD DIRECTORS OF MALABAR CEMENTS LTD.** **EXHIBIT R4(D): A TRUE COPY OF THE RELEVANT PARA OF THE INSPECTION REPORT OF THE COMPTROLLER AND AUDITOR GENERAL OF INDIA FOR THE YEAR 2009-2010** **//TRUE COPY//** **P.A TO JUDGE** ## **HRISHIKESH ROY, Ag.C.J. & A.K.JAYASANKARAN NAMBIAR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(C). No. 7221 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of August, 2018** ## **J U D G M E N T** ## **A.K.Jayasankaran Nambiar, J.** This writ petition is filed by the Anti Corruption and Human Rights Protection Council challenging Ext.P8 Government order dated 22.02.2012, by which the Government ordered the withdrawal of prosecution, in vigilance case Nos.C.C.No.32/2010, C.C.No.2/2011 and C.C.No.22/2011 in the Court of Enquiry Commissioner and Special Judge, Thrissur, against Sri.John Mathai I.A.S (Retired) former Ex-officio Chairman, Malabar Cements Limited, and Sri.T.Padmanabhan Nair and Sri.N.Krishnakumar both former Ex-officio Directors of Malabar Cements Limited. The aforesaid persons were Government Nominees on the Board of Directors of M/s.Malabar Cements Limited, and the vigilance cases referred above were registered consequent to allegations of corruption against the Company officials in the matter of procurement of high grade limestone as also dry fly ash and transportation of the same. The vigilance cases alleged the commission of offences under Section 13(2) and 13(1) (d) of the Prevention of Corruption Act read with Section 409, 420 read with 120-B of Indian Penal Code. The case of the petitioner in the writ petition, in its challenge against Ext.P8 is premised on the contention that, the decision of the Government with regard to withdrawal of prosecution is one that has to be exercised keeping in mind the principles laid down in the decision of the Supreme Court in Sheonandan Paswan v. State of Bihar and Others [1987 (1) SCC **W.P(C). No. 7221 of 2012** 2 288]. It is pointed out, based on the judgment of the Supreme Court in Sheonandan Paswan v. State of Bihar and Others [(1987) 1 SCC 288] as also Bairam Muralidhar v. State of Andhra Pradesh [(2014) 10 SCC 380] that a decision as regards withdrawal from prosecution can be taken only in cases where such action is essential to sub-serve the cause of public interest. In the instant case, it is contended, while it may be a fact that the impugned Government order would not, by itself, result in a withdrawal from prosecution against the three person aforementioned, and the decision as to whether or not an application for withdrawal of prosecution should be submitted before the criminal court is one that has to be arrived at by the Public Prosecutor concerned after due application of mind on the principles aforesaid, and further, the withdrawal from prosecution can only be after a consent for the same is granted by the criminal court concerned on the application submitted by the Prosecutor, since the persons concerned are erstwhile Government Nominees to the Director Board of a Government company, there is an apprehension that the application for withdrawal of prosecution would be mechanically submitted by the Public Prosecutor before the criminal court concerned. It is with a view to prevent such an application from being filed, in a matter of public interest, that the petitioner chooses to impugn Ext.P8 order before this Court in these proceedings under Article 226 of the Constitution of India. **W.P(C). No. 7221 of 2012** 3 3. We heard Sri.Babu S.Nair, the learned counsel appearing for the petitioner, Sri.K.V.Sohan, the State Attorney appearing for respondents 1 to 3, Sri.Gilbert George Correya, the learned counsel appearing for the 4[th] respondent, Sri.B.Raman Pillai, the learned Senior counsel appearing for respondents 5 and 6 and also Sri.P.Santhosh Kumar, the learned Special Government Pleader appearing for the official respondents of the State. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, we find that, by the judgment dated 06.08.2018 in W.P(C).No.15794 of 2015 we had, in a writ petition filed by the very same petitioner, seeking a direction to the State Vigilance Authority to seek permission for further investigation in the vigilance cases, directed the petitioner to approach the criminal court concerned with a request for directing further investigation in the cases pending before the said court. The present writ petition, where the petitioner apprehends that a consent will be granted by the court concerned, to any application submitted by the Prosecutor for withdrawal of prosecution in respect of the three persons referred above, is also in respect of the same vigilance cases in respect of which we had issued the directions in W.P(C).No.15794 of 2015. We are of the view that, any objection that the petitioner has, in respect of any application for withdrawal from prosecution that is presented before the criminal court by the Public Prosecutor, will necessarily have to be considered by the said court in the **W.P(C). No. 7221 of 2012** 4 light of the directions issued in W.P(C).No.15794 of 2015. We therefore feel that, an interference with the Government order impugned in the writ petition (Ext.P8) at this stage may not be necessary, as it is settled law that, pursuant to the Government order, there would have to be an application of mind by the Public Prosecutor on the issue of whether or not an application should be filed for withdrawing prosecution against the three persons aforementioned, and thereafter, it will be for the criminal court concerned to consider the issue of whether or not consent should be granted to the application for withdrawal from prosecution. As sufficient safeguards exist, to protect the interests of the petitioner against the grant of any arbitrary consent, to the withdrawal of prosecution against the three ex-officio Directors of Malabar Cements Limited, we refrain from interfering with Ext.P8 Government order at this stage. ## 5. Taking note of the apprehension of the petitioner, that his objections may not be considered by the criminal court while considering the application, if any filed, seeking withdrawal of prosecution, we make it clear that, in the event of the Public Prosecutor preferring any application for withdrawal of prosecution against the three persons aforesaid, in the vigilance cases pending before the criminal court, then any objection submitted by the petitioners to such application shall also be heard by the criminal court before a decision is taken by the said court to either grant or refuse consent to the said application filed by the Public Prosecutor. As **W.P(C). No. 7221 of 2012** 5 already noted above, the decision on any application for withdrawal from prosecution, shall be taken simultaneously with the decision on the applications, if any preferred for further investigation in the Vigilance cases, pursuant to the directions in W.P(C).No.15794 of 2015. Further, before passing any orders as directed, the criminal court shall offer an opportunity of hearing to the accused also. The writ petition is disposed as above. Sd/- **HRISHIKESH ROY ACTING CHIEF JUSTICE** Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns **W.P(C). No. 7221 of 2012** 6