Crl.MC.No. 669 of 2017 (in CRMP 716/2015 of Court of Enquiry Commissioner & Special Judge, Ernakulam at Muvattupuzha)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939** **Crl.MC.No. 669 of 2017 () --------------------------** **IN CRMP 716/2015 of COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, ERNAKULAM AT MUVATTUPUZHA DATED 25-11-2016 CRIME NO. 28/2016 OF VACB, ERNAKULAM , ERNAKULAM** **PETITIONER(S)/ACCUSED NO.9:** **--------------------------** **ADV. ELDOSE P. KUNNAPILLIL AGED 38 YEARS, KUNNAPILLIL HOUSE, SOUTH MARADY PO, MUVATTUPUZHA, ERNAKULAM** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.VIPIN NARAYAN SRI.C.JAYAKIRAN** **RESPONDENT(S)/DEFACTO COMPLAINANT/STATE:** **----------------------------------------** **1. KHALID MUNDAPILLY S/O.MUHAMMED, MUNDAPILLY HOUSE, KEEZHMADU VILLAGE, EDAYAPPURAM, ALUVA 683101** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SRI.T.R.RAJAN R2 BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** ## **Crl.MC.No. 669 of 2017 () --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **ANNEXURE A TRUE COPY OF THE FIR NO. 28/2016 OF THE VIGILANCE AND ANTI CORRUPTION UNIT, ERNAKULAM** - **ANNEXURE B TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE COURT OF SPECIAL JUDGE AND ENQUIRY COMMISSIONER, THRISSUR** - **ANNEXURE C COPY OF THE QUICK VERIFICATION REPORT DATED 26.07.2016** - **ANNEXURE D TRUE COPY OF THE ORDER IN CRL.MP.NO. 716/2015 DATED 25.11.2016 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) MUVATTUPUZHA** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 669 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of July, 2017 ## **O R D E R** The petitioner herein is the 9[th] accused in Crime No. 28 of 2016 of the Vigilance and Anti-Corruption Bureau (VACB), Ernakulam, where investigation is going on under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, and also under Sections 406, 409, 420, 463, 464 and 471 of IPC. The issue is concerning the construction of a road by the District Panchayat, Ernakulam. The petitioner herein was the President of the Panchayath at the relevant time. The first respondent herein made a complaint before the Special Court (Vigilance), Muvattupuzha, against 13 persons, including the petitioner herein. Initially, the learned trial Judge ordered a preliminary enquiry (Quick Verification). The VACB conducted an enquiry and submitted a report. The said report does not contain anything against this petitioner. Without accepting the report, the court **Crl.M.C.No. 669 of 2017** **-2-** below ordered investigation under Section 156(3) Cr.P.C.. The petitioner now seeks orders quashing the prosecution as against him under Section 482 Cr.P.C. 2. The first respondent was directed by this Court to furnish the materials in his possession, substantiating the allegations in the complaint as against the petitioner. Now there is report by the VACB that during the enquiry and investigation, no material could be collected as against the petitioner, or that there is nothing to show that he had any vicious role or involvement in the construction of the road. The construction works were taken over by a beneficiary committee. The complaint does not contain anything definite to show that the petitioner herein had derived any benefit out of the construction. Anyway, the VACB is now very definite that nothing could be collected to substantiate the allegations made against the petitioner. Of course, the trial court also did not find any material for a prosecution against the petitioner under the PC Act. **Crl.M.C.No. 669 of 2017** **-3-** 3. Para 15 of the impugned order shows that the court below directed investigation against the petitioner on the ground that the contractor was permitted to construct the road by the petitioner herein, against the Rules. If it is only a case of violation of Rules, that by itself will not come under Section 420 or 406 or 409 of IPC. In spite of the clear directions made by the Court to the first respondent to furnish the necessary materials substantiating the allegations as against the petitioner, he did not furnish any material. It is the elementary responsibility of the complainant to produce the materials before the investigating agency, substantiating the allegations in the complaint. The complaint made by the complainant must disclose an offence. Anybody can make any sort of allegations against any individual. Such a situation cannot be allowed to prevail. Any person making a complaint must have something with him to substantiate the allegations in the complaint. Then only we can say some offence is made ## **Crl.M.C.No. 669 of 2017** **-4-** out or disclosed. Anyway, in view of the report of the VACB that no material could be collected against the petitioner herein for a prosecution under the PC Act, or under Section 420 or 406 or 409 of IPC, I feel it appropriate to quash the prosecution as against him. A thorough enquiry was made by the VACB at the preliminary stage, and at that stage also the VACB reported that there is no material against the petitioner. But the court below was not inclined to accept it. I find that investigation was wrongly ordered against the petitioner. In the result, the petition is allowed. The FIR and further proceedings as against the petitioner herein in Crime No. 28 of 2016 of the VACB, Ernakulam will stand quashed under Section 482 Cr.P.C. Sd/- **P.UBAID JUDGE** ds 24.07.2017 **Crl.M.C.No. 669 of 2017** **-5-** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 669 of 2017 & Crl.M.A.No.895 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 07[th] day of April, 2017 ## **O R D E R** ## Crl.M.C.No. 669 of 2017 ## Await return of notice to the first respondent. The VACB has filed a statement of objection. It does not contain the materials required by the court as per the order dated 25.01.2017. It appears that the Investigating Officer requires some more time to file necessary report with necessary details as required by the court. Post after vacation for hearing on admission. ## Crl.M.A.No.895 of 2017 ## Heard both sides. The petitioner herein is one of the 12 persons arraigned as accused in a complaint brought before the **Crl.M.C.No. 669 of 2017** **-6-** Enquiry Commissioner and Special Judge, Muvattupuzha, alleging some irregularities in the construction of a road, at the instance of the District Panchayat. The petitioner is presently a Member of the Kerala State Legislative Assembly. At the relevant time, he was the President of the District Panchayat. Finding it not possible to proceed immediately on the complaint, the learned Trial Judge required some more materials, and accordingly, directed a preliminary enquiry. The VACB conducted a preliminary enquiry, and submitted a report that as against some of the respondents arraigned in the complaint, there is no material for a prosecution under the Prevention of Corruption Act, or under the Indian Penal Code, as the complainant would allege. The petitioner herein is one of those persons against whom there is no recommendation for prosecution. The learned Trial Judge was not inclined to accept the report. Without requiring the complainant to produce supporting materials, the learned Trial Judge made his own assessment of things, **-7-** ## **Crl.M.C.No. 669 of 2017** and found out that as against some of them, including the petitioner herein, there are materials for a prosecution under Section 406, 409 and 420 of IPC. As against 3 of the 13 respondents, the learned Trial Judge did not find any material for a prosecution. Accordingly, the learned Trial Judge forwarded the complaint for investigation under Section 156 (3) Cr.P.C. against the respondents 2 to 9, 12 and 13. It is submitted by the learned counsel that dismissal of the complaint as against 3 of the 13, and ordering investigation as against the others is not permissible in view of the decision of this Court in **Balasubramanian K.S.** v. **Biju Kochupaul and Another** (2016 (3) KHC 794). This is not a case where the said decision can be applied. This is a case where the complaint was partly rejected at the preliminary stage, and not a case where the complaint as against some of the accused was dismissed after the procedure under Section 200 Cr.P.C.. Of course, in a case where the court has acted on a complaint, and has entered the area of enquiry **Crl.M.C.No. 669 of 2017** **-8-** under Section 200 of Cr.P.C., the court cannot revert back, and direct investigation under Section 156(3) Cr.P.C. This is what the Honourable Supreme Court has settled, and this must be the spirit of the cited decision also. The case will have to be distinguished on facts. Anyway, I am not entering a detailed discussion on the legal issue as to whether the cited decision is applicable or not. The operative portion of the impugned order shows that the complaint as against 3 of the respondents stands rejected at the very preliminary stage, even before the court decided to act under Section 156(3) of Cr.P.C.. Anyway, the QVR is in favour of the petitioner. What is found out by the trial court against the petitioner is some involvement in the offence of breach of trust or cheating, on the ground that some contractors were allowed to carry out the required work disregarding the Beneficiary Committee. It is submitted that the contract was in fact executed between the Convener of the Beneficiary Committee and the Executive Engineer of ## **Crl.M.C.No. 669 of 2017** **-9-** the District Panchayat. If so, it is not known how it could be said that the Beneficiary Committee was disregarded, or neglected, or bypassed, or how the committee was cheated by the others. This requires thorough probe. I have gone through the clause No.2 in the said agreement. It appears that the learned trial Judge took decision as against this petitioner and some others without perusing the relevant materials concerning the alleged road construction. In the above circumstances, I am inclined to direct the VACB not to make investigation as against the petitioner herein, till further directions are made by the Court. It is accordingly ordered. Furnish a copy of this order to the learned Public Prosecutor for necessary action. **P.UBAID JUDGE** ds