Bijo Alexander v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944** **CRL.MC NO. 4879 OF 2021** **AGAINST CRIME NO.VC.14/2016/SCE PENDING AS CC 21/2020 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, MUVATTUPUZHA PETITIONER/ACCUSED:** BIJO ALEXANDER AGED 51 YEARS S/O.K.M.ALEXANDER, DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH, THRISSUR, RAMAVARMAPURAM, THRISSUR,-PIN-680631, RESIDENT OF HOUSE NO.19/351/D OF TRIPUNITHURA MUNICIPALITY, VALLIALIL KALLUKATTIL HOUSE, NADAMA VILLAGE, TRIPUNITHURA.P.O,ERNAKULAM DISTRICT,PIN-682301. BY ADVS.S.SREEKUMAR (SR.) C.S.MANU,C.A.ANUPAMAN T.B.SIVAPRASAD,C.Y.VIJAY KUMAR MANJU E.R.,MIDHUN M.SURESH ANANDHU SATHEESH,ALINT JOSEPH PAUL JOSE ## **RESPONDENTS/RESPONDENT AND THE DE FACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI-CORRUPTION BUREAU, SPECIAL CELL 38/2871,CBI ROAD, NEAR CBI OFFICE, KATHRIKADAVU, KALOOR, ERNAKULAM, PIN-682017. SRI.A.RAJESH SPL.P.P VACB,SMT.S.REKHA.SR.P.P. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON 6.03.2023 PASSED THE FOLLOWING: Crl.M.C.No.4879/2021 ## -:2:- O R D E R Dated this the 6[th ] day of March, 2023 This Crl.M.C has been filed under section 482 of Cr.P.C to quash Annexure A5 final report in Crime No.VC.14/2016/SCE pending as CC No.21/2020 on the file of the Court of Enquiry Commissioner and Special Judge, Muvattupuzha (for short, 'the court below'). 2. The petitioner is the sole accused in CC No.21/2020. The offence alleged against him are punishable under section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act'). 3. The prosecution allegation is that the petitioner, while working as a public servant in various capacities at the Kerala Police Department from 1/1/2011 to 31/12/2015, amassed wealth of `33,38,126/- which is disproportionate to his known source of income. 4. According to the petitioner, he has no disproportionate asset/wealth if his entire income during the relevant period, as Crl.M.C.No.4879/2021 -:3:- revealed from the materials produced along with the final report, is reckoned. It is alleged that the investigating officer did not consider the income and expenditure disclosed in Annexure A3 property statement in Form Nos. I to VI submitted by him before concluding the investigation and submitting Annexure A5 final report. In these circumstances, he seeks to quash Annexure A5. 5. I have heard Sri.S.Sreekumar, the learned Senior counsel for the petitioner and Sri.A.Rajesh, the learned Special Public Prosecutor appearing for the VACB. 6. It is trite that jurisdiction under Section 482 Cr. P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, must be exercised with great care and caution. The Apex Court has repeatedly deprecated the interference by the High Court in the exercise of its inherent powers under Section 482 of Cr.P.C. in a routine manner. The scope and ambit of the power by the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India to quash the FIR/investigation has been expounded by the Apex Court in a catena of decisions. Crl.M.C.No.4879/2021 ## -:4:- 7. In _**Kurukshetra University v. State of Haryana**_ (1977 KHC 711), it was observed and held that inherent powers under Section 482 Cr.P.C. do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice; that statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. In the celebrated decision _**State of Haryana v. Bhajan Lal**_ (1992 KHC 600), the Apex Court considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, the Court identified the following cases in which FIR/complaint can be quashed: _“_ _**102.** (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused._ _(2) Where the allegations in the first information report and_ Crl.M.C.No.4879/2021 ## -:5:- _other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section155(2) of the Code._ _(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused._ _(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code._ _(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused._ _(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”_ In _**State of A.P v. Golconda Linga Swamy**_ (2004 KHC 1342), Crl.M.C.No.4879/2021 -:6:- after considering the decision in _**Bhajan Lal**_ (supra) and other decisions on the exercise of inherent powers by the High Court under section 482 Cr.P.C., it was held that exercise of power under section 482 of the Code is the exception and not the rule. In _**Rashmi Kumar v. Mahesh Kumar Bhada**_ [(1997) 2 SCC 397], the Apex Court sounded a word of caution and stated that power under section 482 of Cr.P.C should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. The Court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole. In _**M/s.Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra**_ (AIR 2021 SC 1918), it was held that when a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose the commission of a cognizable offence or not. It was observed that the court is not required to consider whether the merits of the allegations make out a cognizable offence. Recently in _**Central Bureau of Investigation (CBI) and**_ Crl.M.C.No.4879/2021 -:7:- _**Another v. Thommandru Hannah**_ (2021 KHC 6612) while dealing with a case under the PC Act, the Apex Court observed that the court cannot conduct a mini-trial at the stage of quashing of proceedings. 8. A careful reading of the above-noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose the commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or where a criminal proceeding is manifestly attended with malafides or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. 9. One of the main contentions canvassed by the petitioner is that the investigating officer did not consider the Crl.M.C.No.4879/2021 -:8:- special property statements submitted by him in Form Nos.I to VI. The records would show that the petitioner had approached this court earlier by filing WP(C) No. 18664/2020 seeking direction to consider I to VI statements which were submitted belatedly by him. A perusal of the final report would show that the investigating officer, before submitting the final report, scrutinised and considered the special property statements submitted by the petitioner. That apart, the investigating officer questioned and recorded the petitioner’s statement twice. Thus, the petitioner was given ample opportunity to explain his contentions. 10. The learned Senior learned counsel submitted that in Annexure A3 property statement relating to the check period, the petitioner gave details of the assets he possessed, income obtained during the check period and expenditures incurred by him. However, the investigating officer did not consider the income and expenditure he disclosed in Annexure A3 and the explanation he offered. The learned Senior counsel further submitted that even though the prosecution admitted that the petitioner had an agricultural income of `20,93,800/- during the Crl.M.C.No.4879/2021 -:9:- check period, that was not included as income on the allegation that the petitioner has not paid income tax for the said period under section 2(1A) of the Income Tax Act, 1961. Similarly, an amount of `3,50,000/- received by the petitioner from his brotherin-law Sri. Tom Joseph through the bank was not taken into account since no property statement was filed for the year 2015. The counsel added that admittedly before the commencement of the check period, the gold ornaments owned by the petitioner’s wife were 73 sovereigns. Out of the said 73 sovereigns of gold, the petitioner has sold 33 sovereigns of gold ornaments for `6,00,000/- to M/s S.S Jewellery, as evident from the invoices. The petitioner has declared `6,00,000/- as the income from the sale proceeds of gold ornaments in the property statement of 2014. However, the investigating officer rejected the claim of `6,00,000/- stating that the invoices are fake and without authenticity. According to the learned senior counsel, if the agricultural income of `20,93,800/-, the amount of `3,50,000/received from the brother-in-law and `6,00,000/- received by way of sale of gold ornaments have been treated as income of the petitioner during the check period, the assets possessed by him Crl.M.C.No.4879/2021 -:10:- during the entire check period would be much less than the income acquired by him. 11. The final report reveals that during the investigation, the petitioner claimed that he has been receiving agricultural income from his joint family property owned by him, his father and his mother. At the request of the investigating officer, the District Collector, Pathanamthitta calculated agricultural income from the joint family property of the petitioner for the check period of five years as `20,93,800/-. But the said agricultural income was not taken for computation by the investigating officer because there was no documentary evidence to prove the receipt of the said income by the petitioner. The petitioner did not intimate the agricultural income to the income tax authorities as well. In so far as `6,00,000/- allegedly received from the sale of gold is concerned, the investigating agency found that the bills produced by the petitioner to substantiate the same were fake and hence it was not taken for computation. The petitioner has also claimed that he has received `2,00,000/- on 12/3/2015 and `1,50,000/- on 10/4/2015 totalling `3,50,000/- from his brother-inlaw Sri.Tom Joseph. However, the receipt of the said income was Crl.M.C.No.4879/2021 -:11:- not intimated by filing annual property statement for the year 2015. Hence, the said amount was also not taken for computation. The question whether the income claimed by the petitioner under the above three heads could have been included as the income of the petitioner is a matter of evidence. Such a disputed fact cannot be decided in a proceeding under section 482 of Cr.P.C. The exercise of power under section 482 of Cr.P.C in case of this nature is an exception and not the rule. It is settled that the High Court cannot appreciate the evidence or adjudicate disputed facts while exercising the jurisdiction under section 482 of Cr.P.C. For the reasons stated above, I hold that this is not a fit case where the extraordinary jurisdiction vested with this court under section 482 of Cr.P.C could be invoked. Accordingly, Crl.M.C is dismissed. However, this order will not preclude the petitioner from filing a petition for discharge before the court below. ## **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** Crl.M.C.No.4879/2021 ## -:12:- ## **APPENDIX OF CRL.MC 4879/2021** ## PETITIONER ANNEXURES |Annexure A-1|CERTIFIED COPY OF FIR IN CRIME NO.VC-| |---|---| ||14/2016/SCE ON THE FILES OF THE VACB| ||SPECIAL CELL, ERNAKULAM| |Annexure A-2|TRUE COPY OF THE LETTER NO.N2-| ||156638/2016/PHQ DATED 30-9-2016 ISSUED| ||BY THE 2ND RESPONDENT TO THE| ||SUPERINTENDENT OF POLICE(N/C) OCW-II, CB| ||CID, ERNAKULAM| |Annexure A-2(A)|TRUE COPY OF THE COMMUNICATION BEARING| ||ENDORSEMENT NO.G2-4848/2018/W DATED 2-2-| ||2018 ISSUED BY DISTRICT POLICE CHIEF,| ||WAYANAD TO DEPUTY SUPERINTENDENT OF| ||POLICE, SPECIAL BRANCH.| |Annexure A-2(B)|TRUE COPY OF THE REPRESENTATION DATED| ||20-12-2017 SUBMITTED BY THE PETITIONER| ||THROUGH PROPER CHANNEL TO THE 2ND| ||RESPONDENT| |Annexure A-3|TRUE COPY OF THE PROPERTY STATEMENT IN| ||FORM NOS.1 TO VI SUBMITTED BY THE| ||PETITIONER TO THE STATE POLICE CHIEF| |Annexure A-4|TRUE COPY OF THE REPRESENTATION DATED| ||12-8-2020 SUBMITTED BY THE PETITIONER TO| ||THE STATE POLICE CHIEF REQUESTING TO| ||FORWARD THE ANNEXURE A-3 STATEMENTS TO| ||THE 3RD RESPONDENT FOR INVESTIGATION| ||PURPOSE| |Annexure A-4(A)|TRUE COPY OF LETTER NO.G2-28504/2020| ||DATED 13-8-2020 ISSUED BY THE DISTRICT| ||POLICE CHIEF,WAYANAD TO THE STATE POLICE| ||CHIEF| |Annexure A-4(B)|TRUE COPY OF REPRESENTATION DATED 12-8-| ||2020 SUBMITTED BY THE PETITIONER| ||FORWARDING ANNEXURE-A4 AND ANNEXURE-| ||A4(A) TO THE 2ND RESPONDENT| |Annexure A-5|TRUE COPY OF THE FINAL REPORT FILED BY| ||THE 2ND RESPONDENT IN CRIME NO.VC-| ||14/2016/SCE ON THE FILES OF THE VACB| ||SPECIAL CELL, ERNAKULAM| ## Crl.M.C.No.4879/2021 -:13:- Annexure A-6 TRUE COPY OF THE JUDGMENT DATED 06.07.2021 IN W.P.(C)NO.18664 OF 2020 PASSED BY THIS HON'BLE COURT Annexure A-7 TRUE COPY OF THE STATEMENT OF THE LANDED PROPERTIES SEIZED BY THE PROSECUTION AND PRODUCED BEFORE THE COURT BELOW FOR THE PERIOD 2012-2014.