G. Mohandas v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 CRL.MC NO. 330 OF 2021 ``` ``` (CRIME NO.3/2009/SIU-1, THIRUVANANTHAPURAM) ``` ``` (CC 3/2020 ON HE FILE OF THE ENQUIRY COMMISSIONER & SPECIAL ``` ## **`JUDGE, THIRUVANANTHAPURAM)`** ## **`PETITIONER/ACCUSED NO.6:`** ``` G.MOHANDAS, AGED 72 YEARS S/O. GANGADHARAN PANICKER, RANI BHAVAN, KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM, PIN-695 003. ``` ``` BY ADV SASTHAMANGALAM S. AJITHKUMAR ``` ## **`RESPONDENTS/COMPLAINANT:`** |**`1`**|**`THE STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY THE PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA, ERNAKULAM-682 031.`**| |**`ADDL.2.`**|**`KAMALUDHEEN, AGED 56 YEARS`**| ||**`KALLARCKAL VEEDU, T.C. 20/839 (14) SURYA NAGAR,`**| ||**`KARAMANA, THIRUVANANTHAPURAM 695 002.`**| |**`“ 3.`**|**`DR.BIJU RAMESH, AGED 56,`**| ||**`S/O. SRI. G. RAMESHAN, SAMPTHRIPTHI, T.C. 37/852,`**| ||**`KOTTAIKKAM, THIRUVANANTHAPURAM 695 002.`**| ||**`(ADDL.R2 & R3 ARE IMPLEADED AS PER ORDER DATED`**| ||**`22/7/21 IN CRL.MA 3/21.)`**| ||**`BY ADVS.`**| ||**`R1 BY SPL.G.P.(VIGILANCE)SRI.RAJESH.A`**| ||**`SMT.REKHA, SR.PUBLIC PROSECUTOR`**| ||**`ELVIN PETER P.J.`**| ||**`P.DEEPTHI`**| ||**`K.R.GANESH`**| ||**`GOURI BALAGOPAL`**| ||**`SIDHARTH SUDHEER`**| ||**`ANVER K.M.`**| ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 16.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.330 of 2021 2 ## **ORDER** The petitioner, accused No.6 in C.C.No.3/2020 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, seeks to quash the final report in Crime No.3/2009/SIU-1, Thiruvananthapuram. He, along with the other accused, faces charges under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. ## 2. The prosecution alleges the following:- The petitioner is the owner of the building bearing No.TC.28/1830 in Survey No.709 of Vanchiyoor Village. Accused Nos.1 to 5 are the officials of Thiruvananthapuram Corporation. Accused No.7 is an Architect. The petitioner and the other accused hatched a conspiracy to construct a new four-storeyed building after demolishing the existing old building without obtaining the necessary permit from the Corporation. In furtherance of the conspiracy, the petitioner submitted an application for a permit, stating that he intended to make alterations and internal changes to the existing building. Though a permit was not required under the Kerala Municipality Building Rules, 1999 (for short ‘the Rules’) the officials of the Corporation granted a permit in 3 Crl.M.C.No.330 of 2021 Appendix-C under Rule 11(3) of the Rules stating that internal renovation of the existing building was permitted. On the strength of the permit granted as part of the conspiracy, the petitioner demolished building No.TC.28/1830 of Vanchiyoor Village and constructed a fourstoreyed building violating the Rules. 3. The prosecution in this case was initiated based on a complaint filed by a businessman alleging that the petitioner constructed a four-storeyed building in violation of the building rules. The Vigilance and Anti-Corruption Bureau conducted a surprise check on 5.1.2007. Based on the surprise check report, the Government accorded sanction to conduct a vigilance inquiry into the matter. The inquiry revealed that various officials of the Corporation and the petitioner hatched a conspiracy to facilitate the petitioner to construct a building in violation of the Rules. The investigation revealed offences under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of IPC. The petitioner and the officials of the Corporation were aware of the fact that no permit was required for the internal alterations in the existing building and further that the location where the building is situated was within the area where construction of commercial buildings was prohibited. Of course, the petitioner submitted an application in Appendix-A of the Rules and Crl.M.C.No.330 of 2021 4 obtained a permit in Appendix-C of Rule 11(3) of the Rules. 4. The learned counsel for the petitioner submitted that offences under Section 13 of the Prevention of Corruption Act are not revealed in the facts of the case, and there is no direct or indirect evidence of conspiracy. The learned counsel submitted that even when conceding that the petitioner committed illegality by constructing the building in violation of the Rules, there are no materials to show that he was part of a conspiracy for the commission of offences under the PC Act. The learned counsel relied on **State of Odisha** v. **Pratima Mohanty and Ors. (AIR 2022 SC 41)** and **Sathyan Naravoor** v. **Union of India and Others (2017 KHC 162)** in support of his contentions. 5. The learned counsel appearing for additional respondent Nos.2 and 3 submitted that the prosecution materials would reveal the offence under the PC Act, and there is ample evidence that the petitioner and the other accused in this case hatched a criminal conspiracy to commit the offence under the PC Act. 6. The learned Special Government Pleader (Vigilance) Sri.A.Rajesh made available the relevant documents in support of the prosecution case. The learned Special Government Pleader produced a copy of the application submitted by the petitioner before Crl.M.C.No.330 of 2021 5 Thiruvananthapuram Corporation and the permit granted by the authorities in favour of the petitioner. The learned Special Government Pleader also produced the other relevant materials in support of the prosecution case. The learned Special Government Pleader submitted that the conspiracy aspect of the case is essentially revealed from the fact that the petitioner submitted an “application for a permit” stating that he wanted to make internal alterations in the existing building, though a permit was not required under the relevant rules. The learned Special Government Pleader submitted that as per Rule 10 of the Rules, for interior decoration without any structural alterations, a permit is not required, and the owner of the building wanted only to inform the Secretary of the Corporation of the details of the work ten days before the commencement of the work, with particulars regarding the existing conditions. The learned Special Government Pleader further submitted that there was no procedure for issuing a permit as granted to the petitioner in Appendix-C of the Rules as done in the present case. The submission of the learned Special Government Pleader is that the petitioner and the other accused conspired together in pursuance to which the petitioner submitted an application on the pretext that he intended to make alterations in the existing building and obtained a permit in Appendix-C under Rule 11(3). After that, he demolished the Crl.M.C.No.330 of 2021 6 old building and constructed a four-storeyed building. ## 7. To appreciate the rival contentions, it is useful to extract Rule 10 of the Rules. **“10. Permit not necessary for certain works.--** Notwithstanding anything contained in these rules, no building permit shall be necessary for executing the following works which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the rules, namely:- - (i) Providing or removing of windows or doors or ventilators; (ii) Providing inter-communication doors; - (iii) Providing [or removing of] partitions; - (iv) Gardening excluding any permanent structures; - (v) White or colour washing; - (vi) Painting; (vii) Petty repairs to the building and pitched roof; (viii) Plastering and patch work; and (ix) Interior decoration without any structural alterations: - (x) changing of the location of the building or construction within the plot; Provided that the details of works under item (ix) shall be intimated to the Secretary at least ten days before the commencement of such work, with particulars regarding the existing conditions in full so as to enable him to make an assessment of the nature of work. If the Secretary has any objection it shall be communicated to the applicant within ten days. Provided further that the changing of the location under item (x) shall be incorporated in the completion plan.” Crl.M.C.No.330 of 2021 7 8. As per Rule 10, no building permit shall be necessary for executing interior decoration without any structural alterations. The proviso to Rule 10 says that the details of work under item (ix) shall be intimated to the Secretary ten days before the commencement of the work, and if the Secretary, on receipt of such application, has any objection, he shall communicate the same to the applicant within ten days. There is no procedure for issuing any permit under Rule 11(3) of the Rules in the case of internal renovation of the existing building. In the present case, the petitioner submitted an application for a permit in Appendix-A. A copy of the application is made available for perusal. In column 3 of the application, against the nature of development/ construction, the petitioner has deliberately not mentioned the nature of the work. The marking done against column 3 itself indicates suppression of the nature of work. In column 4, against the number of the nearest building, the petitioner has stated the number of the old building owned by him. A copy of the permit is also made available. The Secretary of the Corporation issued a permit on 15.5.2006 in Appendix-C under Rule 11(3) of the Rules, which was really not mandated as per the Rules. In the permit, however, there is a mention of “internal renovation of the existing building”. It is evident that the permit in Appendix-C was issued by the officials as part of the Crl.M.C.No.330 of 2021 8 conspiracy to be used as a document in the style of a permit for a new construction. It is pertinent to note that neither in the application for permit nor in the permit granted, the number of the existing building was mentioned. It would appear that the petitioner obtained a permit for the construction of a new building, though there is a mention of “internal renovation of the existing building”. 9. With the aid of this permit, the petitioner constructed a new four-storeyed building after demolishing the existing building. The Corporation issued a stop memo on 27.11.2006. Proceedings were initiated against the petitioner. The petitioner later submitted an application for regularization wherein he admitted that he effected construction in violation of the provisions contained in the building rules. It is very material to note that the construction was also effected in violation of the provisions in the General Town Planning Scheme for Trivandrum. As per the General Town Planning Scheme for Trivandrum, the area coming in Survey Nos.661, 662 to 735 in Vanchiyoor Village, which is in the Fort Area, is a zone where houses, restaurants etc., are restricted. This fact was also within the knowledge of the petitioner and the other accused. The learned Special Government Pleader produced the application submitted by the petitioner for regularization wherein he mentioned that he had obtained permit No.BA.662/06 dtd. 15.5.2006 for the 9 Crl.M.C.No.330 of 2021 construction of the building, though it was in violation of the Rules. From the material placed by the prosecution, the following facts are prima facie established:- - (1) The petitioner submitted an application to the Corporation for alteration and internal change of the existing building in AppendixA of the Rules under the caption “application for permit” though a permit was not required for internal renovation. - (2) In the application for permit, the petitioner suppressed the number of existing building, whereas he mentioned it as number of the nearest building. - (3) With the aid of the officials of the Corporation, who are accused Nos. 1 to 5, the petitioner obtained a permit in Appendix-C under Rule 11(3) of the Rules without even noting the number of the existing building, which would prima facie appear as a ‘permit’ for the construction of a new building. - (4) The petitioner and the other accused were well aware that no permit was required under Rule 10 of the Rules for effecting the internal renovation of the existing building. - (5) The petitioner and the other accused were also well aware of the fact that the building was within the restricted zone under the ‘General Town Planning Scheme for Trivandrum’. Crl.M.C.No.330 of 2021 10 10. The learned Special Government Pleader submitted that the alleged conspiracy among the accused can be inferred from their knowledge regarding the above-mentioned facts. The learned Special Government Pleader relied on **Rajiv Kumar** v. **State of U.P. and Another (2017 KHC 6522)** in support of his contention wherein the Apex Court held thus:- “44. The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself.” In the present case, prima facie, the ingredients of conspiracy are revealed. The surrounding circumstances and the conduct of the petitioner would prima facie reveal that he had the necessary _mens rea_ for the commission of the offences alleged. 11. The decisions relied on by the learned counsel for the petitioner are in no way applicable to the facts of the present case. 12. It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to Crl.M.C.No.330 of 2021 11 proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations {Vide: **State of West Bengal** v. **Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani** v. **Suraj Kumar [(1985) 2 SCC 370]}** . 13. In **State of Kerala** v. **O.C. Kuttan [(1999) 2 SCC 651],** the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion in one way or the other. In **State of U.P** v. **O.P.Sharma [(1996) 7 SCC 705]** a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in **Rashmi Kumar** v. **Mahesh Kumar Bhada [(1997) 2 SCC 397],** wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be a gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with Crl.M.C.No.330 of 2021 12 circumspection and that too, in the rarest of rare cases and it was not justified for this Court to embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in **Mahendra K.C** . v. **State of Karnataka and Ors. (AIR 2021 SC 5711)** . 14. While dealing with the power under Section 482 Cr.P.C to quash the criminal proceedings, the Apex Court in **M/s.Neeharika Infrastructure Pvt. Ltd.** v. **State of Maharashtra and others (AIR 2021 SC 1918)** concluded thus in paragraph 23 of the judgment: “23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under: (i) xxx xxx xxx xxx xxx xxx Crl.M.C.No.330 of 2021 13 (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) xxx xxx xxx (xiv) xxx xxx xxx (xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or 2022:KER:74562 W.P(Crl) No.407 of 2021 18 not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;” ## 15. In **Amit Kapoor** v. **Ramesh Chander and another** **[(2012) 9 SCC 460]** , the Apex Court held that where the factual foundation for an offence has been laid down, the Courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. ## 16. In **Md. Allauddin Khan** v. **State of Bihar and others** **[AIR 2019 SC 1910],** the Apex Court held that the High Court has no Crl.M.C.No.330 of 2021 14 jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, because appreciation of evidence is essentially an issue to be considered during the trial, when the entire evidence is adduced by the parties. In **State through Central Bureau of Investigation** v. **Dr. Anup Kumar Srivastava (AIR 2017 SC 3698)** , the Apex Court held that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. In **Sajjan Kumar** v. **Central Bureau of Investigation [(2010) 9 SCC 368]** , the Apex Court held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Court will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. The Apex Court further held that where the materials paced before the Court disclose grave suspicion against the accused which has not been properly explained, the Court be fully justified in framing a charge and proceeding with the trial. Crl.M.C.No.330 of 2021 15 17. In the present case, the materials placed before the Court would disclose grave suspicion against the petitioner, and this Court feels that the trial Court is fully justified in proceeding against the petitioner. In the light of the discussion made above, I am of the view that this is not a fit case to quash the proceedings at this stage. However, I clarify that dehors these observations, the trial Court is absolutely free to analyse, appreciate, evaluate and arrive at a proper conclusion based on the evidence and materials placed by the prosecution as well as the defence during the trial. The trial court shall complete the trial and dispose of the case within a period of three months from the date of receipt of a copy of this order. The Crl.M.C. stands dismissed. Registry shall send a copy of this order to the trial Court forthwith. Sd/- **K.BABU Judge** TKS Crl.M.C.No.330 of 2021 16 ## **`APPENDIX OF CRL.MC 330/2021`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE ACERTIFIED COPY OF THE FINAL REPORT IN C.C NO 3/2009 ARISING FROM CRIME NO 3/2020 ARISING FROM CRIME NO 3/2009/SIU-1, THIRUVANANTHAPURAM U/S 120(B), 13(1)(d) r/w SEC 13(2) PREVENTION OF CORRUPTION ACT, 1988 ON THE FILE OF THE HON'BLE INQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM ``` ``` ANNEXURE BTRUE COPY OF THE STATEMENT OF FACTS SUBMITTED BY THE RESPONDENT IN CRL MC NO 2161/2020 FILED BY THE 7TH ACCUSED IN THE ABOVE CRIME DATED 18.6.2020 ``` ``` ANNEXURE CTHE TRUE COPY OF THE ORDER OF REGULARIZATION BYTHESUPDT.ENGINEER,TRIVANDRUM CORPORATION. ANNEXURE DTHE TRUE COPY OF THE JUDGMENT IN WP(C) NO 1832/2017 OF THIS HON'BLE COURT DATED 18.1.2017. ANNEXURE ETRUE COPY OF RULE 7,10,18 AND 100 OF KMBR 1999. Annexure FTRUE COPY OF THE 161 STATEMENT OF WITNESSES NO. 22 IN C.C. N. 3/2020 ON THE FILE OF HE HONBLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. Annexure GTHE TRUE COPY OF THE JUDGMENT IN CRL.MC.NO.2161 OF 2020 OF THIS HON'BLE COURT DATED 07/01/2021. ```