Febin K. Xavier v. P.N. Unnirajan & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935** ## **Crl.Rev.Pet.No. 1653 of 2013** **-------------------------------CRL.MP NO. 752/2012 OF ENQUIRY COMMISSIONER.& SPECIAL JUDGE (VIGILANCE),THRISSUR DATED 28-02-2013** **.....** ## **CRL.REVISION PETITIONER/PETITIONER:** **--------------------------------------------------------------** **FEBIN K. XAVIER, S/O.K.K.XAVIER, KOONAMPLAVIL HOUSE, THALORE PO., THRISSUR** **BY ADVS.SRI.MADHU RADHAKRISHNAN SRI.NELSON JOSEPH** ## **RESPONDENTS/RESPONDENT AND STATE:** **----------------------------------------------------------------** ## **1. P.N.UNNIRAJAN,** **S/O.NEELAMABARAN, SUPERINTENDENT OF POLICE, CBCID THRISSUR, POYYAKALATH HOUSE, CHIYYARAM, THRISSUR.** ## **2. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.R.P.No.1653/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A: COPY OF THE REPORT DATED 31/01/2013 FILED BY THE ALA 5&6. ANNEX.B: COPY OF THE LETTER DATED 9/04/2013 FROM THE STATE PUBLIC INFORMATION OFFICER TO THE PETITIONER. ANNEX.C: COPY OF THE ENQUIRY REPORT SUBMITTED AFTER INVESTIGATION ON THE SAID UNNIRAJA ON THE BASIS OF EXT R2(b) COMPLAINT. ANNEX.D: COPY OF THE PROPERTY STATEMENTS OF THE 1ST RESPONDENT FOR THE YEARS 2003-04, 2008. ANNEX.E: COPY OF THE DETAILS OF THE COMPLETED HOUSE OF THE 1ST RESPONDENT. ANNEX.F: COPY OF THE LETTER UNDER RIGHT TO INFORMATION ACT. ANNEX.G: COPY OF THE COMPLAINT IN CMP NO.752/2012. ANNEX.H: COPY OF THE APPLICATION SENT BY THE PETITIONER UNDER RTI ACT TO THE HOME DEPARTMENT DATED 8/10/2012. ANNEX.I: COPY OF THE LETTER DATED 4/10/2010 ALONG WITH PROPERTY STATEMENTS ISSUED BY STATE PUBLIC INFORMATION OFFICER. ANNEX.J: COPY OF THE COMPLAINT DATED 28/09/2012 FILED BY THE PETITIONER BEFORE VIJU VARGHESE, ACF. ANNEX.K: COPY OF THE COMPLAINT DATED 15/03/2010 BY THE PETITIONER TO THE HOME MINISTER. ANNEX.L: COPY OF THE INFORMATION RECEIVED FROM THE OFFICE OF THE CHIEF MINISTER, KERALA DATED 20/04/2011. ANNEX.M: COPY OF THE ORDER OF THIS HON'BLE COURT DATED 10/08/2011 IN CRL.M.C.NO.1790/2011. ANNEX.N: COPY OF THE INFORMATION RECEIVED FROM STATE PUBLIC INFORMATION OFFICE DATED 17/04/2013. ANNEX.O: COPY OF THE INFORMATION RECEIVED FROM THE VANDITHAVALAM VILLAGE OFFICE DATED 10/09/2013. Kss ..2/-** **...2....** ## **Crl.R.P.No.1653/2013** ## **RESPONDENT'S ANNEXURES:** |**R23(a):**|**COPY OF THE WRIT PETITION NO.22540/2012 WITHOUT**| |---|---| ||**EXHIBITS.**| |**R2(b):**|**COPY OF THE COMPLAINT DATED 14/03/2010 FILED BY**| ||**THE PETITIONER.**| |**R2(c):**|**COPY OF THE JUDGMENT IN WPC.NO.22540/2012.**| |**R2(d):**|**COPY OF THE REPORT DATED 30/01/2013 SUBMITTED BY**| ||**THE ADDL.LEGAL ADVISOR.**| ||**/TRUE COPY/**| ||**P.A.TO JUDGE**| **Kss** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.1653 of 2013** = = = = = = = = = = = = = = = Dated this the 12[th] day of December, 2013 ## **O R D E R** The revision petitioner is the complainant in the private complaint, Crl.M.P.No. 752 of 2012 on the files of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur, filed against the 1[st] respondent herein. The above complaint was filed under Sec. 190(1) of the Code of Criminal Procedure alleging offence punishable under Sec.13(1)(e) of the Prevention of Corruption Act against the 1[st] respondent herein. 2. The allegation in the complaint is that the 1[st] respondent who is a Public servant working as Deputy Superintendent in the police force, had purchased 20 cents of property in Chiyyaram Village at Koorkanchery by giving huge amount as consideration for the said purchase and constructed a palacious house having 3000 sq.ft. plinth area with all amenities spending huge amount. The amount Crl.R.P.No.1653 of 2013 **==> picture [7 x 9] intentionally omitted <==** expended for the said purchase and the construction of the house is disproportionate with his lawful and known sources of income. Further it is alleged that he had amassed above said huge wealth by corrupt and illegal means and thereby the 1[st] respondent has committed criminal mis-conduct punishable under Sec.13(1)(e) read with 13(2) of the Prevention of Corruption Act. 3. The reliefs sought for in the complaint are: refer the complaint for investigation by police under Sec.156(3) of the Cr.P.C., take evidence of the revision petitioner and witnesses, examine records in trial and punish the respondent in accordance with law. 4. On receipt of the complaint, the Special Judge took notice from the complaint itself that earlier the revision petitioner had sent complaint raising the very same allegations to the Government including Chief Minister, Home Minister, Home Secretary etc. and according to the revision petitioner, no action had been taken on that Crl.R.P.No.1653 of 2013 **==> picture [7 x 10] intentionally omitted <==** complaint. In the above view, the learned Special Judge issued notice to the Legal Advisor and called for report regarding the earlier enquiry, if any, with respect to previous complaint filed before the Government and mentioned in the complaint. 5. The learned Legal Advisor filed a report stating that the same allegations had already been enquired by the Vigilance Dy.S.P at the direction of the Government and found false and baseless. The details of the earlier enquiry conducted by the Dy.S.P are specifically stated in the report filed by the Legal Advisor. The allegations in the earlier complaint and present complaint are one and the same. The learned Special Judge found that a second enquiry in respect of the same allegation amounts to abuse of the process of the Court and is unwarranted. Consequently, the complaint was dismissed as not maintainable. This order is under challenge in this revision petition. 6. The learned counsel for the revision petitioner Crl.R.P.No.1653 of 2013 **==> picture [7 x 9] intentionally omitted <==** advanced arguments assailing the findings of the learned Special Judge. The main thrust of the argument is that enquiry report in another case cannot be legally used to dispose another complaint filed by another petitioner. In the earlier occasions, the investigating officer has not investigated the offence properly and the revision petitioner has sufficient proof to prove the allegations in the complaint. 7. Per contra, the 2[nd] respondent filed a counter statement along with Annexure R2(a) to R2(d). The revision petitioner also filed an additional affidavit and a reply affidavit along with Annexures A to F. 8. Though, both parties have filed several documents before this Court, at this stage, while considering the legality, propriety and correctness of the dismissal of the complaint, under revisional jurisdiction, this court is not inclined to embark an independent enquiry as to the veracity of the allegations in the complaint on the basis of Crl.R.P.No.1653 of 2013 **==> picture [7 x 10] intentionally omitted <==** the documents produced before this Court or the veracity of the earlier enquiry reports or its reliability. The nature and extent of revisional jurisdiction of this Court is confined to legality and propriety of the findings in the impugned order in view of the materials placed before the Trial Court. So, the question to be considered is whether there is any illegality or impropriety in the dismissal of the complaint on the finding that same allegations had been enquired into earlier by the competent officer as provided under the Prevention of Corruption Act and found baseless and false. In view of the said finding, this Court called for the earlier investigation reports on which the Special Judge placed reliance to dismiss the complaint. 9. First of all, I may consider the nature of allegations and relief sought for in the complaint. There is no allegations against the accused/ respondent, that his act constituted offence against person or property of the complainant/revision petitioner. In short, there is no Crl.R.P.No.1653 of 2013 **==> picture [7 x 10] intentionally omitted <==** personal grievance at all. The allegation is that the act committed by the respondent in violation of law constituted offence punishable under Sec.13(i)(e) of the Prevention of Corruption Act. Certainly, every citizen has the right to set the law in motion in this respect when the said allegations are not within the knowledge of State or State is not interested to set the law in motion against the offender. Here, whoever be the complainant, the issue is whether the respondent has amassed wealth disproportionate with his lawful and known sources of income by abusing his position as police officer. But, at the same time, the intention of the complainant who set the law in motion must be one devoid of any mala fides, personal interest or motives and such complainant also must come before the court with clean hands. In short, such a right cannot be misused to wreak vengeance against his implacable enemy, by abusing the process of the Court. 10. Going by the complaint, in view of the report filed Crl.R.P.No.1653 of 2013 **==> picture [7 x 10] intentionally omitted <==** by the Legal Advisor and the original document of the earlier enquiry produced before this Court, I have no hesitation to express my dis-satisfaction over the conduct of the complainant in suppressing material facts in the complaint filed before the Special Judge. 11. In paragraph 6 of the complaint, it is averred that on 15/03/2010, he had sent a complaint to the Chief Minister and Home Minister but the Government has not taken any action under the influence of the respondent on the complaint though two years had been elapsed. But, the counter statement filed by the 2[nd] respondent along with Exts. R2(a) to R2(d) shows that earlier the petitioner had approached this Court by filing W.P.C No.22540 of 2012 stating that he had filed a complaint dated 15/03/2010 before the Home Minister seeking a detailed enquiry into the wealth and assets of the 1[st] respondent and the Government has not taken any action on the said complaint. In that writ petition, he prayed for a writ of mandamus Crl.R.P.No.1653 of 2013 **==> picture [7 x 10] intentionally omitted <==** directing the 2[nd] respondent to take action immediately on the said complaint filed by the petitioner. 12. But, in fact, upon the directions of the Home minister, a quick verification enquiry was conducted and a report was submitted. When the writ petition has come up for consideration, it was submitted by the Government Pleader before this Court that an enquiry was conducted as the revision petitioner prayed for and a report was submitted to the higher Governmental Authorities. A copy of the report was also hand over to this Court for perusal. After perusing the report, this Court dismissed the said writ petition vide R2(c) order. Thus, it could be seen that the filing of earlier writ petition before this Court and the earlier enquiry conducted by the competent officer on the very same allegation are seen suppressed by the revision petitioner in the complaint. In short, the mala fide intention of the revision petitioner was to conduct a second investigation by the very same investigating agency on the Crl.R.P.No.1653 of 2013 **==> picture [7 x 10] intentionally omitted <==** very same allegation and for that purpose he suppressed the earlier investigation which he came to know at the time of hearing of the earlier writ petition filed by him before this Court. I am of the opinion that the said conduct of the revision petitioner indicates the fact that the intention of the revision petitioner is not the public interest but to wreak vengeance and also to make use of the Special court for retaliating his personal enemy. 13. Going by the earlier enquiry reports, it is seen that on the basis of a complaint sent by one Mr.A.F.Thomas, Secretary of Kerala Police Officer’s Association, upon the directions of the Honourable Chief Minister, a Confidential Verification enquiry was conducted by the VACB, Ernakulam Range and a report was submitted on 20/01/2009. The said report was forwarded by the Superintendent of Police, Ernakulam Range to the Director, VACB, Thiruvananthapuram, who positively endorsed the same and forwarded to the Government. The Government Crl.R.P.No.1653 of 2013 **==> picture [13 x 10] intentionally omitted <==** upon perusal of the files accepted the report treating that no action is required, as the allegations are unfounded and false. 14. In addition to the earlier enquiry, as per the procedure of the Vigilance Department, a Confidential Verification (CV enquiry) was also done in a discrete manner without the suspect officer knowing about the enquiry. In the CV enquiry, every minute detail, not only regarding the subject matter of the allegation but also the character and antecedents of the concerned officer had been investigated deeply. Thus, the Confidential Verification report conducted against the 1[st] respondent covered the entire allegations raised by the petitioner and the report was submitted with the conclusion that the allegations raised against the officer are baseless and alleged without any valid reason and the said allegations are made with an intent to demoralise the integrity and the honesty of the 1[st] respondent. Thus, going by the earlier Crl.R.P.No.1653 of 2013 **==> picture [13 x 9] intentionally omitted <==** investigation reports, it is seen that the allegations raised in the present complaint had been enquired by a competent officer of the Vigilance Department and found baseless and the Government also accepted the report. 15. Whoever be the complainant, the issue to be investigated is whether the respondent as a Public Servant by abusing his power acquired property disproportionate with his known sources of income. In the earlier investigation conducted by a competent officer under the Prevention of Corruption Act, the respondent’s known sources of income during the relevant period and value of the said 20 cents of property and the residential building thereon were taken into account and assessed meticulously. Witnesses were examined. The investigating officer has reported that there is no discrepancy in the income of the revision petitioner and expenditure for the purchase of the property and construction of the residential building thereon. The very same allegation is sought to be Crl.R.P.No.1653 of 2013 **==> picture [13 x 9] intentionally omitted <==** investigated in the present private complaint also. If that be so, a further complaint seeking investigation by the very same agency is nothing less than abuse of the process of the Court. It is also reported that the enquiry disclosed that the respondent was the investigating officer in a complaint filed by the revision petitioner against one K.M.Antony and the revision petitioner met the respondent and gave certain instruction regarding the course of action to be taken in connection with that investigation, but the respondent was not willing to heed to the desire of the revision petitioner and this provocated him to lodge frivolous and vexations complaints against the respondent. In view of the suppression of earlier investigation in the complaint by the very same agency, the allegation against the revision petitioner also cannot be brushed aside. The revision petitioner cannot be considered as a true and bona fide whistle blower, who set the law in motion for public interest. There is no illegality, irregularity or impropriety Crl.R.P.No.1653 of 2013 **==> picture [13 x 10] intentionally omitted <==** in the order under challenge. Therefore, I also concur with the findings of the learned Special Judge that there cannot be a second investigation for the very same allegations by the very same Investigating agency. 16. It is also pertinent to note that this complaint seeking an investigation under Sec.156(3) was filed without obtaining sanction of the Government under Sec.19 of the Prevention of Corruption Act. In **Anilkumar v. Aiyappa [2013(4) KLT 125 (SC)]** , the Apex Court considered the question whether a private complaint against the Public servant alleging offence punishable under Prevention of Corruption Act and seeking reference under Sec.156(3) for investigation is maintainable without valid sanction required under Prevention of Corruption Act. 17. The Supreme Court held that once it is noticed that there was no previous sanction, the Magistrate cannot order investigation against the public servant while invoking powers under Sec.156(3) Cr.P.C. The ## Crl.R.P.No.1653 of 2013 14 requirement of sanction is a pre-condition for ordering investigation under Sec.156(3) of the Cr.P.C. even at a pre cognizance stage. The Special Judge cannot refer the matter under Sec.156(3) against the Public servant without a valid sanction or order. Thus, a previous sanction under Sec.19 of the Prevention of Corruption Act is a mandatory requirement to order investigation under Sec.156(3) against the 1[st] respondent and the same is lacking in the instant case. Therefore, in that respect also, the complaint is liable to be dismissed at the threshold without entering into merits. This revision petition is devoid of merits and bona fides. In the result, this revision petition is dismissed. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge