Dileep Kumar v. Sunil Kumar, Seena Jerome, Prathapachandran, T Venugopal, Syamala K, G Padmakaran, P Venugopal, Ramanan and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 24TH DAY OF MARCH 2017/3RD CHAITHRA, 1939** **Crl.MC.No. 3941 of 2013 ()** **--------------------------AGAINST THE ORDER/JUDGMENT IN CRMP 936/2011 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE,TRIVANDRUM DATED 03-06-2013** **PETITIONER(S)/PETITIONER:** **------------------------** **DILEEP KUMAR, AGED 53 S/O.PRABHAKARAN, CHAITHRAM, KAIKULANGARA NORTH, THIRUMULLAVARAM P O, KOLLAM-12** ## **BY ADVS.SRI.GEORGE MATHEWS SMT.CELINE JOSEPH** ## **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. SUNIL KUMAR** **TALUK SURVEYOR, KOLLAM TALUK OFFICE, KOLLAM-691001** **2. SMT.SEENA JEROME TECHNICAL OFFICER, KSUDP, KOLLAM CORPORATION, KOLLAM-691001** **3. PRATHAPACHANDRAN SECRETARY, KOLLAM CORPORATION, KOLLAM-691001** **4. T VENUGOPAL FORMERLY CHAIRMAN,WORKS STANDING COMMITTEE OF KOLLAM CITY CORPORATION-691001** **5. SYAMALA K** - **FORMERLY COUNCILOR, WARD NO 47, KOLLAM CORPORATION -691001** **6. G PADMAKARAN, PADMAVASANTHAM VEEDU, MELPILAMKEEZHU, RAMESWARAM NAGAR, KAIKULANGARA NORTH,WARD NO.47,KOLLAM691001** **7. P VENUGOPAL** - **VASANTHAM, MELPILAMKEEZHU, RAMESWARAM NAGAR, KAIKULANGARA NORTH , WARD NO 47, KOLLAM-691001** **8. RAMANAN** - **MELPILAMKEEZHU VEEDU, RAMESWARAM NAGAR, KAIKULANGARA NORTH , WARD NO 47, KOLLAM-691001** **9. STATE OF KERALA DEPUTY SUPERINTENDENT OF POLICE,VIGILANCE AND ANTICORRUPTION BUREAU, KOLLAM, REP BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-691001** **R4-R7 BY ADV. SRI.K.S.MANU (PUNUKKONNOOR) R2 BY ADV. SRI.M.K.CHANDRA MOHANDAS R9 BY ADV.MAYA M.N, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.1.2017, THE COURT ON 24.3.2017 PASSED THE FOLLOWING:** **Crl.MC.No. 3941 of 2013 ()** **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **AI:-TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER'S MOTHER BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, TRIVANDRUM** **28/1/2012** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **A.M.BABU, J.** ------------------------------ CRL.M.C.NO.3941 OF 2013 -----------------------------Dated 24[th] March, 2017 ## **ORDER** The Crl.M.C is filed under Sec.482 of Cr.P.C. An order dismissing a complaint is sought to be quashed. The petitioner wants the complaint to be proceeded with. 2. A person by name Janaki Devi filed a complaint before the Inquiry Commissioner and Special Judge, Thiruvananthapuram. The complaint was numbered Crl.M.P. 936/2011. It was filed against respondents 1 to 8 herein. The offences alleged were those punishable under Secs 120-B and 465 of IPC and Sec.13(2) of the Prevention of Corruption Act ('PC Act' for short). The Special Judge called for a quick verification report and it was filed. It stated that respondents 1 to 8 did illegal acts, but did not commit the offences alleged. Janaki Devi filed objection against the quick verification report. The learned Special Judge accepted the report and dismissed the complaint. The Judge observed that the grievances of the complainant could be redressed only 2 CRL.M.C.NO.3941 OF 2013 through a civil court. 3. Janaki Devi died. Her son is the petitioner. He decided to pursue the matter and proceed with the case. He therefore filed the present Crl.M.C. 4. The reliefs sought for are the following: To quash the order dismissing Crl.M.P.No.936/2011. To direct the Special Judge to proceed with the complaint filed by Janaki Devi in accordance with law. 5. Heard the learned counsel for the petitioner, learned counsel for the second respondent, learned counsel for respondents 4 to 7 and the learned Public Prosecutor. 6. Admitted facts may be stated first. Janaki Devi owned 3.32 ares of land. Her property was bounded by compound walls on all the four sides. On the eastern side of the eastern compound wall ran a sewage canal. The canal was covered with concrete slabs for use as a pathway. The Corporation of Kollam had a proposal to repair the sewage canal. The eastern compound wall of Janaki Devi's property was proposed to be demolished to do repairs to the sewage canal. She was initially not amenable for that. She was 3 CRL.M.C.NO.3941 OF 2013 invited to attend a meeting at the office of the Corporation of Kollam. Her lawyer represented her at the meeting. A solution was arrived at. The decision was to demolish a portion of the compound wall to facilitate the cleaning of the canal and the strengthening of the slabs. The above are admitted facts. 7. The petitioner contends that Janaki Devi agreed to the demolition of a portion of the compound wall as she was given an assurance by the authorities concerned. It is contended that the assurance was that the demolished portion of the compound wall would be reconstructed on the same alignment. But, according to the petitioner, the entire compound wall was demolished and it was reconstructed inside Janaki Devi's property so as to annex a portion of her property to the pathway to widen it. It is alleged that it was done by respondents 1 to 3 for the benefit of respondents 4 to 8. 8. Respondents 1 to 5 at the relevant time were respectively (i) the Taluk Surveyor of Kollam taluk, (ii) the Technical Officer of the Kerala Sustainable Urban 4 CRL.M.C.NO.3941 OF 2013 Development Project which undertook the cleaning and repairing of the sewage canal, (iii) the Secretary of Kollam Corporation, (iv) the Chairman of the works committee of Kollam Corporation and (v) the councilor who represented ward no.47 of the Corporation. Respondents 6 to 8 were the residents of the locality for whose benefit as well the pathway was allegedly widened. 9. I shall state below the allegations against respondents 1 to 8 as depicted in annex-1 complaint and the memorandum of Crl.M.C. Respondents 1 to 8 conspired to cause a wrongful loss to Janaki Devi and an unlawful gain to respondents 4 to 8. The intention was to illegally take a portion of Janaki Devi's property for widening the pathway. Respondents 1 and 2 fabricated records to make it appear that Janaki Devi's property was measured by the first respondent at the request of the third respondent. The letter of request of the third respondent was a concocted document putting a previous date to suit the fabricated report of the second respondent that there was a boundary dispute. The first respondent without measuring Janaki 5 CRL.M.C.NO.3941 OF 2013 Devi's property created a false document to the effect that he measured the property. A false file number was created without generating any such file. Respondents 1 and 2, with the aid of such false documents, reported that excess land was in the possession of Janaki Devi. A sketch of her property was accordingly prepared. Her property was trespassed upon and a portion of it was annexed to the pathway. Records were created and manipulated for that purpose. All these were done to cause a wrongful loss to Janaki Devi and give an unlawful gain to respondents 4 to 8. Janaki Devi sustained a loss of Rs.2.5 lakhs . 10. Thus, the grievance is that a portion of Janaki Devi's property was annexed to a pathway in order to widen it causing her a loss of Rs.2.5 lakhs. It is alleged that in order to do it a file number was created without generating any file, records were manipulated and documents were created. According to the petitioner, everything was the result of a conspiracy to ensure an unlawful gain to respondents 4 to 8. The question is whether the grievances, allegations and contentions of the petitioner attract the 6 CRL.M.C.NO.3941 OF 2013 provisions of the PC Act. 11. The provisions of the PC Act relevant for the present purpose are Secs 3, 4 and 13. Special Judges shall be appointed under Sec.3(1) to try offences punishable under the PC Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under the said Act. According to the petitioner, respondents 1 to 8 committed an offence under Sec.13 (2) of the PC Act read with Sec.13 (1) (d) of the said Act. 12. Sec.13, PC Act, is enacted to deal with the criminal misconduct on the part of public servants. Sec.13 (2) is the penal provision. The penal provision is attracted only if the allegation against a public servant falls within the mischief of any of the clauses of sub-sec (1) of Sec.13. Clause (d) of sub-sec (1) of Sec.13 is pressed into service by the petitioner. Thereunder, a public servant is said to commit the offence of criminal misconduct if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself 7 CRL.M.C.NO.3941 OF 2013 or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. The provision is clear that it is attracted only if a public servant for himself or for any other person obtains any valuable thing or pecuniary advantage. There is no such allegation in annex1 complaint. The allegation therein is only that the acts complained of caused a wrongful loss to Janaki Devi and an unlawful gain to respondents 4 to 8. The unlawful gain allegedly obtained by respondents 4 to 8 is a more wide pathway. Such an advantage for them is certainly not a valuable thing or a pecuniary advantage within the meaning of Sec.13 (1) (d) of the PC Act. Janaki Devi did not, and the petitioner does not, have a case under Sec.13(1) (d) of the PC Act to take for trial. 13. The learned counsel for the petitioner refers to annex-2 quick verification report. It refers to the highhanded acts of the officials in the matter of demolition and reconstruction of the compound wall. The report states that 8 CRL.M.C.NO.3941 OF 2013 there was an unholy nexus between respondents 6 to 8 and the officials of the Corporation of Kollam. It is even recommended to initiate appropriate departmental disciplinary action against respondents 1 and 2 and another. But the alleged highhanded acts of the respondents do not attract the provisions of Sec.13 (1) (d) of the PC Act. 14. The petitioner's learned counsel referred to page 477 of the book entitled 'Malik's commentary on The Prevention of Corruption Act, 1988' (3[rd] edition). It is stated therein that the words “to obtain for any other person” would mean to take an effort to enable any other person to obtain the pecuniary advantage. It is also stated that the expression does not mean that the public servant must receive the pecuniary advantage from a third party and pass it on the other person for his benefit. The learned counsel relied on the decision of the Madras High Court in **Gopalakrishnan vs. State (2002 Crl.LJ 47).** The decision holds that the words “to obtain for himself” mean the obtaining of pecuniary advantage by a public servant either by himself or through somebody else for himself. The 9 CRL.M.C.NO.3941 OF 2013 question involved in the present case is not as to when can it be said that a public servant is said to obtain a valuable thing or a pecuniary advantage for himself or for any other person. The question involved in the instant case is whether there has been any obtaining of a valuable thing or a pecuniary benefit, whoever be the recipient thereof. As already seen, there has been no allegation or material for the obtaining of any valuable thing or pecuniary advantage by anybody. The commentaries in the book referred to above and the dictum of the aforenoted decision are therefore of no help to the petitioner. 15. The offences under Secs 120B and 465 of IPC are also alleged in annex-1 complaint. There are allegations therein that official records were manipulated and forged as a result of a conspiracy among respondents 1 to 8. But the Special Judge was not expected to take cognizance of the offences under Secs 120B and 465 of IPC in view of Sec.4 of the PC Act. Sub-sec (1) of Sec.4 provides that the offences specified in Sec.3(1) shall be tried by Special Judges only. When trying any such case, a Special Judge 10 CRL.M.C.NO.3941 OF 2013 may also try any offence, other than an offence specified in Sec.3, with which the accused may be charged at the same trial under the Cr.P.C (vide sub-sec(3) of Sec.4 of the PC Act). This is a case where the allegations in the complaint do not constitute any offence under the PC Act. In such a case, the Special Judge cannot take cognizance against a person of any offence under any other enactment including the IPC. It is so because the Special Judge gets jurisdiction to try other offences only if an offence specified in Sec.3 of the PC Act is involved. The remedy of Janaki Devi was to approach the Magistrate having jurisdiction with a complaint alleging offences under Secs 120B and 465 of IPC. It is not known why Janaki Devi wasted time in the vigilance court. It is also not known why the petitioner is wasting time in this court to pursue annex-1 complaint in the vigilance court itself. 16. It is time to conclude. Annex-1 complaint does not contain allegations to attract the provisions of the PC Act. In fact, there was no substance in the complaint to direct even a quick verification. It is not the law that even 11 CRL.M.C.NO.3941 OF 2013 an empty complaint shall be mechanically forwarded for quick verification. The learned Special Judge did not do any mistake when he accepted the quick verification report. There is little scope for interference with the order in Crl.M.P.936/2011. The Crl.M.C is devoid of merit. It deserves only a dismissal. 17. Dismissed. sks/13.3.2017 **A.M.BABU Judge**