K.K. Sasikumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942** ## **Crl.MC.No.4054 OF 2020(F)** **VIGILANCE ENQUIRY REPORT NO.VE01/2016/TSR OF THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION BUREAU, THRISSUR** ## **PETITIONER/ACCUSED:** **K.K.SASIKUMAR AGED 62 YEARS S/O.KUMARA PANICKER, RESIDING AT KALARICKAL HOUSE, KARAKKAD, BEHIND MANGOTTU APARTMENTS, GURUVAYUR, THRISSUR DISTRICT-680101.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS/STATE/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE ADDITIONAL CHIEF SECRETARY, VIGILANCE (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE VIGILANCE AND ANTICORRUPTION BUREAU, THRISSUR, SHORNUR ROAD, THIRUVAMBADY P.O., THRISSUR-680022.** - **4 THE COMMISSIONER FOR GURUVAYUR DEVASOM, SPECIAL SECRETARY TO THE GOVERNMENT, INFORMATION AND PUBLIC RELATION DEPARTMENT, MAIN BLOCK, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **SRI B JAYASURYA SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.02.2021, THE COURT ON 17.02.2021 PASSED THE FOLLOWING:** **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.4054 of 2020 -----------------------------------------------Dated this the 17[th] day of February, 2021 ## **O R D E R** The petitioner is a person who has retired from service as Assistant Manager in the Guruvayoor Devaswom. He had served as Superintendent in the Guruvayoor Temple from 13.08.2007 onwards. 2. An audit conducted in the Devaswom revealed shortage of more than 14 kilograms of saffron in the stock. This ultimately led to issuing an order by the Government to conduct a vigilance enquiry. 3. The Dy.S.P, Vigilance and Anti-Corruption Bureau (VACB), Thrissur conducted the vigilance enquiry. He submitted Annexure-10 enquiry report. 4. As per Annexure-10 vigilance enquiry report, the petitioner was found as one of the persons responsible for the shortage of five kilograms of saffron. It was found that he had failed to record the receipt of five kilograms of saffron on Crl.M.C.No.4054/2020 3 01.02.2008. In Annexure-10 report, a recommendation was made to initiate revenue recovery proceedings against the persons who were found responsible for the shortage of saffron. 5. As per Annexure-12 order dated 22.07.2020, the Administrator of Guruvayoor Devaswom directed that an amount of Rs.4,01,400/- shall be recovered from the death-cumretirement gratuity of the petitioner. 6. The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-10 vigilance enquiry report. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. 8. The prayer in this petition filed under Section 482 of the Code reads as follows: _“In the light of the above material facts and circumstances it is most humbly prayed that this Hon'ble Court may be pleased to quash Annexure-10 Vigilance Enquiry Report vide No.VE01/2016/TSR dated 21-07-2016 of the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Thrissur, in the_ Crl.M.C.No.4054/2020 4 _interest of justice.”_ 9. Guruvayoor Devaswom is not made a party to this petition. It may be due to the fact that the petitioner has filed a writ petition before this Court for quashing Annexure-12 order. 10. Annexure-12 report does not contain any specific finding that the petitioner has committed any offence. It does not contain any recommendation to initiate prosecution or criminal action against the petitioner. No case based on Annexure-10 report is pending against the petitioner in any criminal court. The only action recommended against the petitioner in Annexure-10 report is to recover the amount of loss caused to the Devaswom due to the shortage of saffron. 11. In the aforesaid circumstances, the question arises whether a petition or application under Section 482 of the Code to quash Annexure-10 vigilance enquiry report is maintainable or not. 12. Section 482 of the Code provides that, nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give Crl.M.C.No.4054/2020 5 effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 13. In **State of West Bengal v. Sujit Kumar Rana** ( **AIR 2004 SC 1851** ), after noticing the provision contained in Section 482 of the Code, the Apex Court has held as follows: _“From a bare perusal of the aforementioned provision it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court amounts to abuse of the process of court. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a court; which in the context of Code of Criminal Procedure would mean 'a criminal court' or whence a power is exercised by the court under the Code of Criminal procedure”._ (emphasis supplied) 14. In the instant case, no case is pending against the petitioner in any criminal court on the basis of Annexure-10 vigilance enquiry report. The petitioner does not seek any order Crl.M.C.No.4054/2020 6 of this Court to give effect to any order under the Code. The petitioner also does not seek any order of this Court to prevent abuse of the process of any criminal court. 15. Learned counsel for the petitioner would contend that, an application under Section 482 of the Code, seeking an order of this Court to secure the ends of justice, is maintainable. He would contend that, an order quashing Annexure-10 vigilance enquiry report, would be an order to that effect. 16. The inherent power under Section 482 of the Code is intended to prevent the abuse of the process of the Court and to secure the ends of justice. The inherent power of the Court under Section 482 of the Code is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a Court, amounts to abuse of the process of Court. Therefore, such power can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under the Code (See **State of Punjab v. Davinder Pal Singh Bhullar : AIR 2012 SC 364** ). Crl.M.C.No.4054/2020 7 ## 17 **.** In **Davinder Pal Singh Bhullar** (supra), the Supreme Court has also held as follows: _“Application under Section 482 Cr.P.C lies before the High Court against an order passed by the Court subordinate to it in a pending case/proceedings. Generally, such powers are used for quashing criminal proceedings in appropriate cases. Such an application does not lie to initiate criminal proceedings or set the criminal law in motion. Inherent jurisdiction can be exercised if the order of the Subordinate Court results in the abuse of the "process" of the Court and/or calls for interference to secure the ends of justice. The use of word `process' implies that the proceedings are pending before the Subordinate Court”._ 18. There is no merit in the contention of the learned counsel for the petitioner that the expression “otherwise to secure the ends of justice” in Section 482 of the Code empowers the High Court to pass an order quashing Annexure-10 vigilance enquiry report. Answer to this contention raised by the petitioner is contained in the following observations made by the Apex Court in **Davinder Pal Singh Bhullar** (supra) which read Crl.M.C.No.4054/2020 8 ## as follows: _“When reference is made to the phrase "to secure the ends of justice", it is in fact in relation to the order passed by the Subordinate Court and it cannot be understood in a general connotation of the phrase. More so, while entertaining such application the proceedings should be pending in the Subordinate Court. ......... An inherent power is not an omnibus for opening a pandorabox, that too for issues that are foreign to the main context. The invoking of the power has to be for a purpose that is connected to a proceeding and not for sprouting an altogether new issue. A power cannot exceed its own authority beyond its own creation. It is not that a person is remediless. On the contrary, the constitutional remedy of writs are available”._ (emphasis supplied) 19. In view of the above legal position, this application filed under Section 482 of the Code for quashing Annexure-10 vigilance enquiry report is not maintainable. 20. It is stated that the petitioner has filed a writ petition challenging Annexure-12 order passed by the Guruvayoor Devaswom to recover amount from his gratuity. Annexure-10 Crl.M.C.No.4054/2020 9 report is the basis of Annexure-12 order. Then, it is not known why the petitioner did not challenge Annexure-10 report in that writ petition. 21. Consequently, the petition is dismissed. The petitioner is granted liberty to invoke appropriate remedies to challenge Annexure-10 report. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.4054/2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT VIDE ORDER NO.B-4775/2007 DATED 13.08.2007.** - **ANNEXURE 2** - **TRUE COPY OF THE ORDER NO.B4-8189/09 DATED 13.08.2009 OF THE 2ND RESPONDENT.** - **ANNEXURE 3** - **TRUE COPY OF THE REPORT SUBMITTED BY THE CF AND AO TO THE MANAGING COMMITTEE DATED 28.08.2009.** - **ANNEXURE 4 TRUE COPY OF THE RESOLUTION OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE AT ITS MEETING HELD ON 28.08.2009 VIDE RESOLUTION NO.83.** - **ANNEXURE 5 TRUE COPY OF THE ORDER BY WHICH THE SUSPENSION WAS REVOKED, ISSUED BY THE 2ND RESPONDENT DATED 31.08.2009 VIDE NO.B4-8189/09.** - **ANNEXURE 6 TRUE COPY OF THE REPORT DATED 20.01.2010 SUBMITTED SRI.V.P.SOMASEKHARAN, CF AND AO (RETIRED).** - **ANNEXURE 7 TRUE COPY OF THE REPORT SUBMITTED BY THE CF & AO DATED 08.05.2014.** - **ANNEXURE 8 TRUE COPY OF THE COMMUNICATION VIDE NO.B4 8189/09 DATED 22.08.2014.** - **ANNEXURE 9 TRUE COPY OF THE RESOLUTION OF THE GURUVAYUR DEVASWOM MANAGING COMMITTEE AT ITS MEETING ON 21.08.2014 VIDE RESOLUTION NO.97.** Crl.M.C.No.4054/2020 11 **ANNEXURE 10 TRUE COPY OF THE VIGILANCE ENQUIRY REPORT SUBMITTED BY THE VIGILANCE AND ANTICORRUPTION BUREAU, THRISSUR DATED 21.07.2016 VIDE NO.VE.1012016/TSR. ANNEXURE 11 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 31.05.2017. ANNEXURE 12 TRUE COPY OF THE ORDER NO.B48189/2009(1) DATED 22.07.2020. ANNEXURE 13 TRUE COPY OF THE G.O. (P)NO.65/1992/VIGILANCE DATED 12.05.1992.** ## **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE