K Vasudevan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 CRL.REV.PET NO. 1152 OF 2023** **CRIME NO.3/2008 OF VACB, PATHANAMTHITTA AGAINST THE ORDER/JUDGMENT IN CC 33/2016 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/PETITIONER/2ND ACCUSED:** K VASUDEVAN NAIR, AGED 73 YEARS, S/O LATE KRISHNA NAIR (RETIRED AS BDO, PANDALAM, PATHANAMTHITTA DISTRICT, NOW RESIDING AT KRISHNA VILASAM, METHUKUMEL MURI, PATTAZHI, VADAKKEKKARA, KOLLAM, PIN - 691526 BY ADVS. JOHN JOSEPH(ROY) K.G.RADHAKRISHNAN R.S.MAHESH KRISHNA JOSEPH FRANCIS BENNY T.C. ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 BY ADV SRI.RAJESH.A, SPECIAL GOVERNMENT PLEADER (VIGILANCE) SMT.REKHA, SR.PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.R.P NO. 1152 OF 2023 2 ## K.BABU, J ------------------------------------------------Crl.R.P No.1152 of 2023 ## -------------------------------------------------Dated this the 10th day of January, 2024 ## O R D E R Challenge in this Criminal Revision Petition is to the order dated 6.11.2023 in Crl.M.P.No.1122/2023 in C.C.No.33/2016 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. 2. The petitioner, who is accused No.2, faces charges under Section 13(1)(c) and (d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 120B and 420 of IPC. 3. The prosecution case is that the petitioner was employed as Secretary of Panthalam Block Panchayat for the period from 2000 to 2005. Accused No.1 is the Vice President of the Block Panchayath. Accused No.3 is the beneficiary committee convenor of the Drinking Water Project for Kuttiplavila SC Colony. The petitioner and the other accused conspired together and lifted the rice allotted for work and instead of distributing the same for the work, the accused stored the same in the building owned by Crl.R.P No.1152 of 2023 3 witness No.5, sold in the black market and misappropriated the amount so obtained. No work was carried out as per the scheme and thereby they caused loss to the Government and obtained unlawful gain. 4. In response to the summons, the petitioner appeared before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram. He filed Crl.M.P.No.1122/2023 and prayed for discharge. The Trial Court dismissed the application as per the impugned order along with four other applications seeking discharge in four other cases wherein also the petitioner is arrayed as accused No.2. The challenge in this Crl.Revision Petition is to the order dismissing the application seeking discharge in C.C.No.33/2016. 5. Heard Sri.K.G.Radhakrishnan, the learned counsel for the revision petitioner and Smt.Rekha, the learned Senior Public Prosecutor. 6. The learned counsel for the petitioner made the following submissions: i) The petitioner has only discharged the statutory responsibility as the Secretary of the Block Panchayath. ii) The petitioner has no involvement in the alleged conspiracy. Crl.R.P No.1152 of 2023 4 iii) Witness Nos.1 and 2, who committed dereliction of duty has not been made accused. iv) There are no material to prima facie establish that the petitioner participated in the alleged conspiracy. 7. The learned Senior Public Prosecutor submitted that the prosecution materials prima facie revealed the offences alleged. The learned Public Prosecutor relied on the statement of the witnesses to substantiate that prima facie there are sufficient materials to attract the ingredients of the offences alleged. 8. Sections 239 and 240 of the Code of Criminal Procedure deal with discharge and framing of charge. 9. The obligation to discharge the accused under Section 239 Cr.P.C. arises when “the Magistrate considers the charge against the accused to be groundless.” 10. The primary consideration at the stage of framing charge is the test of the existence of a prima facie case. The probative value of materials on record is not to be gone into at this stage. ## 11. The Apex Court in Onkar Nath Mishra and others v. State (NCT of Delhi) and another [(2008) 2 SCC 561] while considering the nature of evaluation to be made by the Court at the stage of Crl.R.P No.1152 of 2023 5 ## framing of charge held thus:- “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the Accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the Accused in respect of the commission of that offence.” ## 12. In State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC ## 659], while dealing with the question of framing charge or discharge the Apex Court held thus:- “32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the Accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the Accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” ## 13. In State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338] the ## Apex Court held thus:- “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie Crl.R.P No.1152 of 2023 6 consider whether there is sufficient ground for proceeding against the Accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the Accused.” ## 14. In Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another [(2013) 11 SCC 476], the Apex Court observed that while framing charges the Court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. It was further held that the Court cannot speculate into the truthfulness or falsity of the allegations, contradictions and inconsistencies in the statement of witnesses at the stage of discharge. 15. Section 239 of Cr.P.C envisages a careful and objective consideration of the question whether the charge against the Accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the Accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the Accused has Crl.R.P No.1152 of 2023 7 committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the Accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the Accused is not entitled to discharge Under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial. ## (See: V.C. Shukla v. State through CBI (AIR 1980 SC 962). 16. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja [(AIR 1980 SC 52)] the Apex Court stated thus:- “At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.” ## 17. In State by Karnataka Lokayukta, Police Station, Bengaluru ## v. M.R.Hiremath (2019) 7 SCC 515 the Apex Court held thus:- “25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in Crl.R.P No.1152 of 2023 8 several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan (2014) 11 SCC 709), adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) 29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the Accused has committed the law does not permit a mini trial at this stage.” ## 18. In State through Deputy Superintendent of Police v. R. Soundirarasu and Ors. (AIR 2022 SC 4218) the Apex Court while dealing with the scope of Section 239 Cr.P.C. held thus:- “61. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the offence. The word 'groundless' used in Section 239 of the Code of Criminal Procedure means that the materials placed before the Court do not make out or Crl.R.P No.1152 of 2023 9 are not sufficient to make out a prima facie case against the Accused....................… 73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the Accused can be said to be "groundless". 74. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the Accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.” 19. Therefore, the obligation to discharge the accused under Section 239 Cr.P.C. arises when the Magistrate/Special Judge considers the charge against the accused to be groundless that is, there is no legal evidence or when the facts are such that no offence is made out at all and no detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken. 20. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable Crl.R.P No.1152 of 2023 10 misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. {Vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)]}. ## 21. In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)] the Apex Court held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare cases only to correct a Crl.R.P No.1152 of 2023 11 patent error of jurisdiction. 22. I shall consider the rival submissions in the light of the principles discussed above. The Panthalam Block Panchayath, where the petitioner was employed as the Secretary during 20002005, had undertaken five projects under ‘Sampoorna Grameena Rozgar Yojana, Special Component Scheme’ in Kadakkadu Division. Accused No.1, the Vice President of the Panchayath was the member of the Block Panchayath Division. Those projects were, - i. Drinking Water Project for Kuttipalavila SC Colony. - ii. Thalakkattu Chira Renovation. - iii. Cherumudi Ela Deepening. - iv. Kallarthodu, Adhikananad, Ulamayil Kadvu Renovation - v. Renovation of Thonnalloor Ela-Kilikolloor Puncha. 23. The subject matter of this Crl.Revision Petition relates to the allegation of misappropriation of funds in respect of Drinking Water Project in Kuttipalavila SC Colony. The project was undertaken during 2002-2003. A beneficiary committee was formed the convener of which was accused No.3. As per the Scheme, the Government provided 32,280 Kg. of rice worth Rs.2,00,136/- as labor component. The rice was taken from the FCI Godown, Avaneeswaram in Kollam District. 24. The case of the prosecution is that the Block Crl.R.P No.1152 of 2023 12 Panchayath did not execute the work but collected the rice from the FCI Go-down and handed over it to accused No.1, who along with accused No.3 stored it in the building belonging to witness No.5 violating the Rules of SGRY Scheme. It is the further case of the prosecution that the accused pursuant to the conspiracy sold the rice in black market and converted the money so obtained for their own use by cheating the Government of Kerala. The prosecution alleged that due to the acts of the petitioner and the other accused, the Government of Kerala suffered a loss of Rs.2,00,136/- and the petitioner and the other accused obtained a gain for themselves. Admittedly, the petitioner was the Block Development Officer and the Secretary of the Block Panchayath. Sri.Harikumaran Nair, a UD Clerk attached to the office stated that the petitioner directed him to receive the rice and to hand over to accused No.1. Sri.Harikumaran Nair further stated that accused No.1 transported the rice to some other places and it was not stored on the premises of the Block Panchayath Office. Sri.Harikumaran Nair also stated that the petitioner did not instruct him to handover the rice to the concerned Conveners of the work. Another witness Sri.Ismail who was the then Assistant Engineer in the Block Panchayath Office stated that he was reluctant to sign the project report prepared by the Overseer without inspecting the sites, but accused No.1 threatened him with Crl.R.P No.1152 of 2023 13 dire consequences and the petitioner directed him to sign the estimates. The prosecution alleges an unholy nexus between the petitioner and accused No.1, based on the statements of Sri.Harikumaran Nair and Ismail. The prosecution has also relied on the documents to show that the Conveners of all these works had signed in the Food Grain Issue Register and also signed separate receipts for having received the food grains in respect of their particular work of which they were the conveners. Sri.Harikumaran Nair specifically stated that he obtained the signatures of the conveners in the register and no rice was issued to them. The prosecution relying on the official records available alleges that no work was carried out. The learned counsel for the petitioner submitted that it was the petitioner who issued notice to the conveners asking them to remit the price received by them. The learned counsel further submitted that the petitioner had initiated revenue recovery proceedings against the officials concerned. The learned Public Prosecutor, per contra, contended that the petitioner was compelled to initiate revenue recovery proceedings when the District Collector issued specific directions in this regard. The circumstances brought out especially the statements given by Sri.Harikumaran Nair and Ismail, prima facie point out the role of the petitioner in the alleged conspiracy. 25. On analysis of the above-mentioned materials, I am of Crl.R.P No.1152 of 2023 14 the view that there are factual ingredients constituting the offences alleged and there is nothing to show that the charges levelled against the petitioner are groundless. 26. Unless the order passed by the Special Judge is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appellate Court. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable or is grossly erroneous or glaringly unreasonable, the Revisional Court may interfere with it. 27. Therefore, the Crl. Revision Petition lacks merit and it stands dismissed. 28. The learned counsel for the petitioner submitted that the petitioner is physically incapacitated to travel and appear before the Trial court. The Trial Court has a discretion to dispense with the personal appearance of the accused in Court. In Crl.R.P No.1152 of 2023 15 appropriate cases, the Court can, on conditions, allow the accused not to appear in person and permit him to be represented through a counsel. 29. Having regard to the facts of the case, I am of the view that it is not always imperative for the Trial Court to insist the presence of the petitioner during the course of trial. The Trial Court shall exempt the personal appearance of the petitioner, if he files an affidavit with the following undertakings: i) He would not dispute his identity as the particular accused in the case. ii) The counsel in his behalf will be present in the court. iii) He has no objection in taking the evidence in his absence treating the presence of the counsel as his presence. Sd/- K.BABU JUDGE ab Crl.R.P No.1152 of 2023 16 ## **APPENDIX OF CRL.REV.PET 1152/2023** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE FIR NO. 3/2008/PTA DATED 11.02.2008 OF VACB, PATHANAMTHITTA Annexure A2 TRUE COPY OF THE CHARGE SHEET DATED 05.08.2012 Annexure A3 CERTIFIED COPY OF ORDER DATED 07.06.2022 ISSUED FROM THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM IN CC NO.33/2016. Annexure A4 CERTIFIED COPY OF COMMON ORDER IN THE FIVE CASES DATED 6.11.2023 OF THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THIRUVANANTHAPURAM