Dr. T.P. Senkumar IPS (Retd) v. State of Kerala and Others (OP(Crl). No. 535 of 2017)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939 OP(Crl.).No. 535 of 2017 (Q) ----------------------------AGAINST THE ORDER IN CMP 470/2017 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM DATED 9-08-2017 ## PETITIONER: ------------------- DR. T.P. SENKUMAR IPS(RTD) S/O PRABHAKARAN, AGED 60 YEARS, RESIDING AT "PRADEEKSHA", ANAND LANE, P.T.P NAGAR, VATTIYOORKAVU PO, THIRUVANANTHAPURAM, PIN CODE NO.695013 BY ADVS.SRI.P.V.VENUGOPAL SRI.P.BIJIMON SRI.JACOB SAMUEL ## /RESPONDENTS 1 TO 3 STATE/ COMPLAINANT NO.4: ---------------------------------------------------------------------------- 1. VIGILANCE AND ANTI-CORRUPTION BUREAU REPRESENTED BY ADDL.DIRECTOR GENERAL OF PROSECUTION (VIGILANCE), THIRUVANANTHAPURAM,PIN CODE-696001. 2. REGISTRAR TO ENQUIRY, COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM, PIN CODE-696001. 3. SUPERINTENDENT OF POLICE, VIGILANCE & ANTI-CORRUPTION BUREAU, SPECIAL INVESTIGATION UNIT-1, POOJAPPURA, THIRUVANANTHAPURAM. PIN CODE-696012. 4. A.J.SUCKARNO "SURYA", KEEZHEPARAYIL, PACHALLOOR, THIRUVANANTHAPURAM, PIN CODE NO-696027. R1-R3 BY SENIOR PUBLIC PROSECUTOR SRI.P.NARAYANAN R4 BY ADV. SRI.S.CHANDRASEKHARAN NAIR R4 BY ADV. SRI.RAJU GEORGE (KARUVATTA) R4 BY ADV. SRI.S.GOKUL BABU THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## OP(Crl.).No. 535 of 2017 (Q) ----------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 A COPY OF CLEARANCE CERTIFICATE BY THE DIRECTOR VIGILANCE AND ANTI-CORRPUTION BUREAU VIDE COMMUNICATION DATED ON 5.6.2017. EXHIBIT P2 A COPY OF JUDGMENT DATED 6.4.2017 IN WP(C) NO.10798/2017 PASSED BY THE DIVISION BENCH. EXHIBIT P3 A COPY OF REPORT IN FILE NO.59/AR/12(2)2017/P & ARD DATED 28.6.2017 FORWARDING THE RECOMMENDATION OF THE SELECTION COMMITTEE TO THE CENTRAL MINISTRY. EXHIBIT P4 A COPY OF THE COMPLAINT DATED 22.5.2017 FILED BY BABURAJ BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM. EXHIBIT P5 A COPY OF Q V 13/2017 SIU-1, MV DATED 23.3.2017 OBTAINED UNDER RTI. EXHIBIT P6 A COPY OF THE COMMUNICATION VIDE REPORT NO.E11-14951/17 POLICE DATED 22.5.2017. EXHIBIT P7 A COPY OF COMMUNICATION VIDE E-19-QV 13/17/SIU 20128/2016 DATED 7.9.2017. EXHIBIT P8 A COPY OF THE FINAL ORDER DATED 14.9.2017 IN CMP NO.329/2017 BY THE HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM. EXHIBIT P9 A COPY OF THE COMPLAINT DATED 9.8.2017 BY SUCKARNO FILED BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM. EXHIBIT P10 A COPY OF THE INTERIM ORDER DATED 1.8.2017 IN CON CASE (C) NO.1079/2017. EXHIBIT P11 A COPY OF COMMUNICATION BEARING NO.59-AR/12(2)2017/P &ARD DATED 17.9.2017 ISSUED BY THE ADDITIONAL CHIEF SECRETARY CLARIFYING THAT FILE HAS BEEN PLACED BEFORE THE CENTRAL MINISTRY OF PERSONNEL AND TRAINING SPECIFYING DETAILS OF COMPLAINTS IN RESPECT OF DR. T.P SENKUMAR. EXHIBIT P12 A COPY OF THE INTERIM ORDER DATED 26.8.2017 BY THE HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM. -2OP(Crl.).No. 535 of 2017 (Q) ----------------------------- EXHIBIT P13 A COPY OF THE INFORMATION GIVEN BY THE INFORMATION OFFICER, VIGILANCE AND ANTI-CORRUPTION BUREAU BEARING NO.E2513345/2017 DATED 1.6.2017. ADDL EXT P14: COPY OF FIR NO.1302 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DTD 19.8.2017 ADDL EXT P15: COPY OF ADDITIONAL REPORT SUBMITTED BY K.E.BAIJU POLICE ASSISTANT COMMISSIONER DTD 23.8.2017 ADDL EXT P16: COPY OF DRAFT NOTE OF LOAN BEARING NO.1271 SUBJECTING PROPERTY IN RESURVEY NO.302/16-1, 302/1-1 HAVING AN EXTENT OF 2 HEC 8 ARES 10 SQ.M. ADDL EXT P17: COPY OF DRAFT NOTE OF LOAN BEARING NO.1295 SUBJECTING PROPERTY IN RESURVEY NO.302/1 HAVING AN EXTENT OF 3.07 ACRES(1 HEC 24 ARES) ADDL EXT P18: COPY OF JUDGMENT IN WPC 12644 AND 13098 OF 2013 AND 32943 OF 2014 DATED 17.3.2017 RESPONDENTS' EXHIBITS: --------------------------------------- EXT R4(A): COPY OF ORDER DTD 4.12.2014 IN CRL.M.C.NO.4174/2013 PASSED BY THIS COURT. EXT R4(B): COPY OF ORDER DTD. 5.3.2015 IN CRL.M.C.NO.485 /2015 PASSED BY THIS COURT. EXT R4(C): COPY OF THE RELEVANT PAGES OF THE AUDIT REPORT NO.3 (PSUs) FOR THE YEAR ENDED MARCH 2012. EXT R4(D): COPY OF THE FILE NO.1207169/SPLA2/17/GAD ALONG WITH THE COVERING LETTER DTD 5.8.2017. /TRUE COPY/ P.S.TO JUDGE cms ## **K.ABRAHAM MATHEW J.** --------------------------------------- O.P.(Crl.) No.535 of 2017 ----------------------------------------Dated this the 1[st] day of December, 2017 ## **JUDGMENT** The petitioner was an IPS officer. In 2009-2011 he served as Managing Director of Kerala Transport Development Finance Corporation. In 2010 he sanctioned two loans of Rs.10 crores each to one Salim, which was beyond his financial powers. By abusing his official position as a public servant he obtained for the borrower pecuniary advantage. In 2016 he submitted an application for half pay leave. Later, he filed an application to convert it to commuted leave on medical grounds. He made the claim on the strength of false medical certificates and other false documents obtained from one Dr.V.K.Ajith Kumar, Professor of Ayurveda Medical College, Thiruvananthapuram. These are the allegations the 4[th] respondent has made in his Ext P9 complaint filed in the Court of Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram. The learned Special Judge by Ext P12 order directed the police officer concerned to conduct a quick verification and file a report. In this Original Petition the prayer is to quash Ext P9 complaint mainly on the following grounds. An enquiry was already conducted into the allegation relating to the sanctioning of the loans by the petitioner and it has been found that he has not committed any offence under the Prevention of Corruption Act. The allegation pertaining to the production of documents in support of the application to convert the half pay leave into commuted leave is outside the purview of the Prevention of Corruption Act. The complaint is vexatious. It is submitted that the petitioner's name has been recommended for the post of O.P.(Crl.) No.535 of 2017 2 Member of the Kerala Administrative Tribunal and the complaint has been filed in an attempt to deny him the post. He would say that Ext P9 complaint filed by 4[th] respondent is a Government sponsored one. 2. Heard the learned counsel for the petitioner and the 4[th] respondent and the learned Special Government Pleader. 3. At the outset it was submitted by the learned counsel for the 4[th] respondent and the Special Government Pleader that the prayer to quash the complaint cannot be allowed because the police have not registered an FIR, nor the court has taken cognizance of the offence. In other words, they maintain that this petition is premature. Reliance is placed on the decisions of the **Punjab and Haryana High Court in Rishi Pal v. State of Haryana and another (1997 Crl.L.J.1438)** and of the Supreme Court in **HDFC Securities Limited and others v. State of Maharashtra and another (2017)1 SCC 640.** In **HDFC Securities Limited** case the Supreme Court approved the view taken by the High Court that the direction given by the Magistrate to the Police under section 156(3) Cr.P.C to conduct an investigation and submit a report gave no right to the accused to file a petition to quash the FIR. The Supreme Court held that the order passed under Section 156(3) Cr.P.C could not be said to have caused an injury of irreparable nature. In **Rishipal'** s case the Punjab and Haryana High Court took the view that before cognizance of the offence is taken by the court the accused has no cause of action to approach the court. 4. In the decisions in **R.P.Kapur v State of Punjab (AIR 1960 SC** **866), State of Haryana and others v Ch.Bhajan Lal & others (AIR 1992** O.P.(Crl.) No.535 of 2017 3 **SC 604), State of Andhra Pradesh v Gourishetty Mahesh and others (2010)11 SCC 226** and **Sathish Mehra v State of NCT of Delhi and another (AIR 2013 SC 506)** the supreme Court has held that in certain circumstances a complaint may be quashed at the threshold. 5. The petitioner was appointed an IPS officer in 1983. In 2009 he was posted as Managing Director of Kerala State Road Transport Corporation. He was given additional charge of the Managing Director of the Kerala Transport Development Finance Corporation. On 8.4.2010 and 15.10.2010 he sanctioned two loans of Rs.10 crores each to Grant Tech Builders and Developers (P) Ltd. On 25.5.2015 he was appointed the State Police Chief. It is submitted that two successive governments, the first of which was the Left Democratic Front and second by the United Democratic Front gave him 10 out of 10 on evaluation of efficiency. The present LDF Government came to power on 25.5.2016. Six days later (on 1.6.2016) the petitioner was thrown out of the post of the State Police Chief. He was posted as Chairman and Managing Director of the Kerala Police Housing and Construction Corporation Ltd. He challenged his removal as the State Police Chief in the Central Administrative Tribunal. The petition was dismissed. The challenge in the High Court was not successful. In the appeal filed by him the Supreme Court ordered his reinstatement as the State Police Chief holding that his displacement from the post of the State Police Chief summarily and without reasonable cause was not justified. The decision has been reported in **Dr.T.P.Senkumar, IPS v Union of India (2017 (2) KLT 453)** . The apex court observed: “The subjective satisfaction of the State O.P.(Crl.) No.535 of 2017 4 Government must be based on some credible material, which this court might not analyze but which can certainly be looked into. Having looked into the record placed before us we find that there is no material adverse to the interests of the appellant except an expression of opinion and views formed, as far as he is concerned as late as on 26[th] May 2016. This make-believe prima facie satisfaction by itself cannot take out judicial review of administrative action in the garb of subjective satisfaction of the State Government”. It is submitted that the State Government filed an application to review the judgment, which was dismissed with costs of Rs.25,000/-. 6. On 26.7.2016 the Director of Vigilance and Anti Corruption Bureau suo motu directed an enquiry into the irregularities committed by the petitioner in sanctioning the loans mentioned above to Grant Tech Builders and Developers (P) Ltd. Before the report was filed, the name of the petitioner was recommended to the post of Administrative Member of the Kerala Administrative Tribunal by the Selection Committee consisting of Chief Justice of the High Court of Kerala, Chief Secretary of the Government of Kerala, Chairman of the Kerala Administrative Tribunal and Chairman of the Kerala Public Service Commission. On 24.10.2006 the Chief Justice informed the Chief Minister of the selection. Later, on 23.3.2017 Quick Verification Report (Ext P5) was filed by Inspector of Police, who conducted the enquiry pursuant to the direction issued by the Director of the Vigilance and Anti Corruption Bureau. Still the State Government did not send to the Governor the list of the candidates selected to fill the post of members of the Kerala Administrative O.P.(Crl.) No.535 of 2017 5 Tribunal, which prompted one Satheesh Vasath to file Writ Petition No.10789 of 2017. It is seen from Ext P2 judgment dated 6.4.2017 that the court recorded the submission of the learned Advocate General that within two weeks the State Government would make recommendations to the Governor and consult him. The court directed that after completing the process of consultation, within one week the State Government shall send the matter to the Central Government. On the expiry of two weeks the State Government decided to send the list to the Governor. On 22.5.2017 one V.S.Baburaj, who claimed to be a social and political worker and a crusader against corruption and abuse of powers filed Ext P4 complaint before the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram raising several allegations against the petitioner. One of the allegations related to the sanctioning of the loans to Grant Tech Builders and Developers (P) Ltd. It is seen from Ext P6 letter of the Director of Vigilance and Anti corruption Bureau addressed to its Legal Adviser that the enquiry did not disclose commission of any offence under the Prevention of Corruption Act. Meanwhile, the 4[th] respondent filed a petition before the Director of Vigilance and Anti corruption Bureau alleging that the medical certificates and other documents produced by the petitioner in support of his application for commuted leave were false documents. Before the completion of the enquiry the petitioner retired from service on superannuation on 30.6.2017. On 19.7.2017 the enquiry officer filed a report stating that the facts of the case alleged by the 4[th] respondent did not disclose any offence under the Prevention of Corruption Act. Within one month (on 14.8.2017) the O.P.(Crl.) No.535 of 2017 6 4[th] respondent filed Ext P9 complaint before the Special Judge. Two allegations have been made in the complaint. As mentioned earlier, one is related to the sanctioning of the two loans by the petitioner while he was holding additional charge of the Director of Kerala Transport Development Finance Corporation and the other is related to the false documents allegedly produced by the petitioner in support of his application for commuted leave. By Annexure-P12 order which is sought to be quashed the learned Special Judge ordered a preliminary enquiry on 26.8.2017. Thereafter, on 14.9.2017 by Ext P8 order the learned Special Judge dismissed the complaint filed by Advocate Sri. Baburaj on the ground that his complaint is a compilation of allegations and complaints raised by some other people. Three days later, by Ext P11 letter the State Government informed the Central Government about Ext P12 order for quick verification passed by the learned Special Judge. 7. To recapitulate, the petitioner had put in a service of more than three decades and secured 'full marks' in the matter of efficiency when he was unceremoniously thrown out of the post of State Police Chief. Within one month of his removal as State Police Chief, the Director of Vigilance and Anti corruption Bureau suo motu ordered an enquiry, the subject matter of which was 'elements of corruption' in granting the loan. It ended in favour of the petitioner. The government did not want him to become a member of the Kerala Administrative Tribunal, the selection of whom was made by a committee headed by the Chief Justice of this High Court. But the judgment of this court made the government send the list of the selected persons to the O.P.(Crl.) No.535 of 2017 7 Governor. Baburajan filed a complaint - which was found to be frivolous by the Special Judge - alleging corruption in granting the loans. Though the enquiry conducted into the complaint raised by the 4[th] respondent in relation to the medical certificates produced by the petitioner revealed commission of no offence under the Prevention of Corruption Act, the former took the plunge and filed a complaint before the Special Judge raising the very same allegation. But he included the allegation pertaining to the two loans also in the complaint. His stand that he had not known about the earlier reports of the Vigilance and Anti corruption Bureau cannot be believed. The facts reveal that he was fully conscious of the fact that the earlier complaint filed by him before the Director of the Vigilance and Anti corruption Bureau alleging submission of false medical certificates by the petitioner would not serve his purpose. That is why he filed Ext P9 complaint before the Special Judge including the allegation relating to the two loans. He is not a seeker of truth and he is not interested in discovering truth. After the petitioner was appointed the State Police Chief, he became a persona non grata for certain persons. There was not even an enquiry against him till his removal as the State Police Chief. But within one month of his removal as the State Police Chief the Vigilance and Anti corruption Bureau all of a sudden swung into an action by ordering an enquiry suo motu. Not satisfied with the findings of the Bureau, Baburaj and the 4[th] respondent, who have admittedly political interests, filed complaints one after another. Why the 4[th] respondent wants an enquiry by the very same agency which had enquired into the same allegations earlier. O.P.(Crl.) No.535 of 2017 8 8. The complaint filed by the 4[th] respondent is still pending. At least now, he knows that in an earlier enquiry the Vigilance and Anti corruption Bureau found that there is no substance in the allegation of corruption in granting the loans. Still he wants to proceed with his complaint. The pendency of the complaint is a stumbling block for the appointment of the petitioner as a member of the Kerala Administrative Tribunal. The Central Government apparently will not take any decision as to his appointment unless the proceedings initiated by the filing of the complaint is terminated in his favour. The learned Government Pleader has submitted that the Vigilance and Anti corruption Bureau has not done anything in the enquiry ordered by the Special Judge. This is what the complainant intended to bring about. This is the situation he desires to continue to exist. And he has got moral, vehement and vociferous support from the learned Government Pleader. 9. It was submitted by the learned counsel for the 4[th] respondent and the learned Government Pleader that the petitioner should not have approached the court before a case is registered or cognizance of the offence is taken by the court concerned. The petitioner did not rush to the court on the 4[th] respondent's filing the complaint or the special court's ordering quick verification. Ext P12 order directing quick verification was passed by the learned Special Judge on 26.8.2017. The direction was to complete the quick verification and file the report on or before 27.9.2017. The police officer who was directed to conduct the enquiry admittedly did nothing till 27.9.2017. He must have thought of making a request for more time to conduct the enquiry. O.P.(Crl.) No.535 of 2017 9 The petitioner filed the present petition only on 27.9.2017. He is not to blame for filing this petition. 10. A member of an Administrative Tribunal can hold office only for five years from the date on which he enters upon his office. It may be extended by five years. But he cannot hold office after he has attained the age of 65. The petitioner retired from service at the age of 60. One year has already passed after his selection to the post of the member of Administrative Tribunal. 11. One of the categories of cases mentioned in **State of Haryana and others v Bhajan Lal and others (AIR 1992 SC 604)** in which the High Court can exercise the extraordinary power under Article 226 of the Constitution or the inherent powers under Section 482 Cr.P.C to prevent abuse of the process of court or otherwise to secure the ends of justice is where a criminal proceedings is manifestly attended with mala fides 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 **Sathish Mehra v State of N.C.T. of Delhi and another (AIR 2013 SC 506)** the Supreme Court held: “The power to interdict a proceeding either at the threshold or at an intermediate stage of trial is inherent in a High Court” in appropriate cases. In **HDFC Securities Limited and others v State of Maharashtra and another (2017)1 SCC 640),** which is one of the decisions of the Supreme Court relied on by the learned Government Pleader as well as the 4[th] respondent, what is held by the Supreme Court is that the order directing investigation could not be quashed O.P.(Crl.) No.535 of 2017 10 since it did not cause the petitioner any injury of irreparable nature. In the case on hand it has already been noticed that the pendency of the complaint causes - in fact, has already caused - irreparable injury to the petitioner. 12. Some forces have been at work against the petitioner since his becoming the State Police Chief. The 4[th] respondent is only a tool in their hands. The court will be failing in its duty if it does not quash Ext P9 complaint which has been filed only to make sure that the petitioner is not appointed a member of the Kerala Administrative Tribunal. The court will be doing a disservice to the cause of justice if it does not put an end to the complaint which is a gross abuse of the process of the court. The earlier the better. In the result, this Original Petition is allowed. Ext P9 complaint is quashed and Ext P12 order is set aside. Sd/- ## **K.ABRAHAM MATHEW JUDGE** cms /True copy/ P.S.to Judge