Baburaj K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 CRL.MC NO. 483 OF 2024 ``` ``` CRIME NO.1/2023 OF VACB, KASARAGOD, Kasargod ``` ## **`PETITIONER/S:`** ``` BABURAJ K AGED 57 YEARS 'SHIVAM', NILESWAR P.O., KASARGOD, PIN - 671314 BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, VACB, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 483 of 2024 **==> picture [20 x 9] intentionally omitted <==** ## **K. BABU, J** **------------------------------------------------Crl.M.C. No. 483 of 2024 ------------------------------------------------Dated this the 11[th] day of March, 2024** ## **O R D E R** The petitioner seeks to quash the FIR in VC No.1/2023 of VACB, Kasargod. The petitioner is accused No.6 in the crime. He is alleged to have committed offences punishable under Sections 467, 468, 471, 420 and 409 of the IPC and Section 13(1)(a) r/w 13(2) of the PC Act. 2. The petitioner was the Branch Manager of the KSFE Kanhangad Branch. Accused Nos.1 to 5 were subscribers to various chitties conducted by the KSFE, Kanhangad Branch. The petitioner conspired with Accused Nos. 1 to 5 with intent to make wrongful gain and made alterations in the original title deeds of immovable properties offered as security for releasing the prized amount. Accused No.2 obtained title deed of the Crl.M.C. No. 483 of 2024 **==> picture [20 x 9] intentionally omitted <==** immovable property owned by accused No.1 through accused No.5. They entered into a criminal conspiracy with the petitioner and other accused and created a forged title deed bearing No.3234/1996 of Sub Registrar’s Office, Hosdurg in respect of 47 cents of land in Re-survey No.12/2 of Periya Village by changing the schedule of property of the original title deed. In the schedule of the deed the land at Ayampara in Periya Village was replaced with another immovable property near Periya Central University. Accused No.2 also produced forged location certificates and location sketch and used them as genuine. The petitioner accepted all these documents without any verification. A valuation team headed by the petitioner inspected the property and assessed the value of the land near the Central University at Rs.1 Crore 41 Lakh instead of the land at Ayampara which has a value of less than Rs.7 Lakhs. The landed property comprised in re-survey No.150/4B is situated at Periya Chalinkal Motta in Periya Village. One Crl.M.C. No. 483 of 2024 **==> picture [20 x 9] intentionally omitted <==** Balakrishnan Nair and Narayanan Nair were the ownersin-possession of that property. Accused No.1 does not have any land in the location in respect of which valuation was done and report was prepared by the team headed by the petitioner. 3. The Manager of the KSFE Kanjangad Branch lodged a complaint against accused Nos.1 to 3 before the SHO, Hosdurg alleging forgery and cheating. Hosdurg Police registered Crime No.194/2021 alleging offences punishable under 467, 468 and 420 of the IPC on 22.02.2021. During the course of investigation by the Hosdurg Police, the offences under Sections 409 and 471 of IPC and 13(1)(d) r/w 13(2) of the PC Act were revealed. Based on the direction of the Additional Chief Secretary (Home and Vigilance), the Director, VACB ordered further investigation in the matter and the VACB, Kasargod Unit registered V.C.No.1/2023. 4. The learned counsel for the petitioner made the following submissions:- Crl.M.C. No. 483 of 2024 **==> picture [20 x 9] intentionally omitted <==** (1)The petitioner who was the Manager of the KSFE, Kanhangad Branch only acted upon the legal opinion given by Advocate Pradeep Lal. (2)The petitioner disbursed the prized amount to the subscribers only after getting the approval from the Regional Manager of the KSFE. (3)The VACB registered the crime before conducting any preliminary enquiry as directed in _**Lalita Kumari v. Govt. of U.P.,**_ [2014 (2) SCC 1]. 5. The learned Senior Public Prosecutor submitted that the material placed before the Court _prima facie_ reveals the offences alleged. The learned Senior Public Prosecutor further submitted that preliminary enquiry is not always required for registering a crime. The learned Senior Public Prosecutor also submitted that when a prayer for quashing the FIR is made by the alleged accused and the Court, when exercising its power under Section 482 Cr.P.C., only has Crl.M.C. No. 483 of 2024 ..6.. to consider whether the allegations in the FIR disclose the commission of cognizable offence as alleged. 6. I have carefully gone through the FIR and the related documents placed before me. The FIR contains specific allegations against the petitioner that he had knowledge regarding the alleged conspiracy and in the creation of the fabricated documents. The petitioner himself visited the land with the knowledge that it was not the property actually offered as security for the mortgage and prepared Annexure A8 report. It was the valuation team headed by the petitioner assessed the value of the land which was not the land described and scheduled in the title deed relied on by the guarantors. The team assessed the value of the property at Rs.1 Crore 41 Lakh instead of the land originally scheduled in the title deed which is in a different place. Therefore, the contention of the petitioner that he accepted the title deeds as security based on the legal opinion and disbursed the prized amount as per the approval of the Crl.M.C. No. 483 of 2024 **==> picture [20 x 9] intentionally omitted <==** Regional office has no basis. The FIR clearly reveals the offences alleged. This is a premature stage to record any other conclusion. 7. 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]}. 8. 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**_ Crl.M.C. No. 483 of 2024 **==> picture [20 x 9] intentionally omitted <==** [(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 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 Crl.M.C. No. 483 of 2024 ..9.. 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). 9. While dealing with the power under Section 482 Cr.P.C to quash the criminal proceedings the Apex Court in _**M/s.Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others**_ (AIR 2021 SC 1918) concluded thus in paragraph 23 of the judgment: 23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Crl.M.C. No. 483 of 2024 ..10.. Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under: ## (i) xxx xxx xxx xxx xxx xxx (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) xxx xxx xxx (xiv) xxx xxx xxx Crl.M.C. No. 483 of 2024 ..11.. (xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;” 10. In the present case, the petitioner fails to convince this Court that the allegations levelled against him in the prosecution records made available do not disclose the ingredients of the offences alleged. 11. On the requirement of the preliminary enquiry, a two Judge Bench of the Apex Court in _**State of Telangana v. Managipet Alias Mangipet Sarveshwar Reddy**_ [(2019) 19 SCC 87] observed thus:- “11.Schedule VII List II Entry 2 of the State List is the police (including railway and village police) subject to the provisions of Schedule VII List I Entry 2-A. Therefore, Crl.M.C. No. 483 of 2024 ..12.. various facets of policing in the State fall within the legislative competence of the State and the reemployment of a retired personnel who was a member of Indian Police Service, falls within the executive power of the State. As a re-employed officer, he was holding a civil post as his salary was being paid from the State Exchequer. He was discharging duties and responsibilities in the Anti-Corruption Bureau. **12.** In _P.H. Paul Manoj Pandian_ v. _P. Veldurai_ [ _P.H. Paul Manoj Pandian_ v. _P. Veldurai_ , (2011) 5 SCC 214 : (2011) 2 SCC (Civ) 681] , it has been held that the executive power of the State is coterminous with the legislative power of the State Legislature i.e. if the State Legislature has jurisdiction to make law with respect to a subject, the State Executive can make regulations and issue government orders with respect to it. This Court held as under : (SCC p. 231, para 48) “ _48_ . The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by issuing various departmental orders. The executive power of the State is coterminous with the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State Executive can make regulations and issue government orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders Crl.M.C. No. 483 of 2024 ..13.. shall be inoperative if the legislature has enacted a law with respect to the subject. Thus, the High Court was not justified [ _P.H. Paul Manoj Pandian_ v. _P. Veldurai_ , 2008 SCC OnLine Mad 1252] in brushing aside the Government Order dated 16-11-1951 on the ground that it contained administrative instructions.” **13.** In _**Bishambhar Dayal Chandra Mohan v. State of U.P.[Bishambhar Dayal Chandra Mohan v. State of U.P.,**_ (1982) 1 SCC 39 : 1982 SCC (Cri) 53] , it was held that the executive power of the State Government cannot be circumscribed if it does not go against the provisions of the Constitution or any law. The Court held as under : (SCC p. 56, para 20) “ _20_ . … In _Ram Jawaya Kapur_ v. _State of Punjab_ [ _Ram Jawaya Kapur_ v. _State of Punjab_ , AIR 1955 SC 549 : (1955) 2 SCR 225 : 1955 SCJ 504] Mukherjea, C.J., dealt with the scope of Articles 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed:‘Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.’ It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If Crl.M.C. No. 483 of 2024 ..14.. there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill.” 12. As the prosecution has made available the materials to prima facie establish that the petitioner and the other accused committed offences as alleged, the correctness or otherwise of the allegations levelled in the FIR is a matter to be tested during the course of investigation. However it is made clear that this Court has not made any observation on the merits or otherwise of the allegations levelled in the FIR. Therefore, the Crl.M.C. lacks merits and it stands dismissed. ## **K.BABU, JUDGE** kkj Crl.M.C. No. 483 of 2024 ..15.. ## **`APPENDIX OF CRL.MC 483/2024`** - **`PETITIONER ANNEXURES Annexure-1 THE TRUE COPY OF THE SALE DEED WITH NO. 3234/96 OF SRO, HOSDURG DATED 16.8.1996`** - **`Annexure-2 THE TRUE COPY OF THE TAX RECEIPT DATED 4.5.2018`** - **`Annexure-3 THE TRUE COPY OF THE POSSESSION CERTIFICATE DATED 20.3.2018`** - **`Annexure-4 THE TRUE COPY OF THE LOCATION CERTIFICATE DATED 22.3.2018`** - **`Annexure-5 THE TRUE COPY OF THE EYE SKETCH Annexure-6 THE TRUE COPY OF THE SAID ENCUMBRANCE CERTIFICATES FOR THE PERIOD FROM 1.1.1988 TO 15.3.2018 & 1.1.2018 TO 4.1.2019`** - **`Annexure-7 THE TRUE COPY OF THE LEGAL OPINION RECEIVED DATED 27.7.2018`** - **`Annexure-8 THE TRUE COPY OF THE VALUATION REPORT DATED 28.7.2018`** - **`Annexure 9 THE TRUE COPY OF THE FIR DATED 22.2.2021 IN CRIME NO. 194/2021 OF HOSDURG POLICE STATION`** - **`Annexure-10 THE TRUE COPY OF THE LETTER ISSUED BY THE ADDL. CHIEF SECRETARY, HOME AND VIGILANCE TO THE DIRECTOR, VACB DATED 5.1.2023`** - **`Annexure-11 THE TRUE COPY OF THE LETTER DATED 13.2.2023 ISSUED BY THE DIRECTOR, VACB TO THE DYSP, VACB, KASARGOD UNIT`** - **`Annexure -12 THE CERTIFIED COPY OF THE FIR DATED 14.2.2023 IN VC 1/2023 OF VACB, KASARGOD`**