M. GOPALAKRISHNA PILLAI v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** ## **WP(CRL.) NO. 321 OF 2022** ## **PETITIONER:** M.GOPALAKRISHNA PILLAI, AGED 71 YEARS, S/O.MADHAVAN PILLAI, FORMERLY U.D.CLERK, SUB REGSTRAR OFFICE, ERNAKULAM, USHAS HOUSE, PALACHUVADU-682030, KAKKANAD, ERNAKULAM. BY ADVS. T.ASAFALI C.RASHEED ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 THE DIRECTOR, THE VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-695001. 3 DEPUTY INSPECTOR OF POLICE,VACB, SPECIAL CELL POLICE STATION, ERNAKULAM, KOCHI-682035. BY ADV. SRI. RAJESH.A SPL.G.P. (VIGILANCE) THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(Crl) No.321 of 2022 2 ## K.BABU, J. -------------------------------------- ## W.P(Crl) No.321 of 2022 --------------------------------------- Dated this the 5[th] day of August, 2022 ## JUDGMENT The prayers in this Writ Petition (Criminal) filed under Article ## 226 of the Constitution of India are as follows: - “(i) Issue a writ of mandamus or any other appropriate writ or order commanding the 2[nd] respondent to take appropriate decision on Exhibit P6 representation made by the petitioner on the basis of the documents produced therewith praying to conduct further investigation of the case VC No.2/2005/SCE of Ernakulam Special Police Station within a time frame fixed by this Hon'ble Court; - (ii) Granting such other reliefs, which this Hon'ble Court may deem fit and proper to meet the ends of justice.” 2. The petitioner is the accused in C.C.No.351/2016 on the file of the Court of Enquiry Commissioner and Special Judge, Muvattupuzha. The Vigilance and Anti-Corruption Bureau, Ernakulam Special Cell Police Station, Ernakulam registered V.C.No.2/2006/SCE against the petitioner alleging offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. 3. After completing the investigation, final report was 3 W.P(Crl) No.321 of 2022 submitted against the petitioner before the Special Court, Thrissur alleging the aforesaid offence. The Special Court, Thrissur took cognizance of the offence as C.C.No.36/2011. The case was later transferred to the Special Court, Muvattupuzha and is pending consideration as C.C No.351/2016. 4. The petitioner was a Public Servant who entered in Government service as an L.D Clerk in 1983 and retired on 31.03.2006. The prosecution alleges that the petitioner, while working as Public Servant in the Registration Department for the period from 01.07.1994 to 18.02.2006, acquired assets worth Rs.19,45,541.57/- and incurred an expenditure of Rs.13,87,459.77/making a total income of Rs.33,33,001.35/- against his known sources of income being Rs.16,89,611.50/-. The petitioner is, therefore, alleged to have amassed income worth Rs.16,43,389.85/-, which is 97% excess of his known sources of income. 5. Heard Sri. T.Asaf Ali, the learned counsel appearing for the petitioner and Sri. A.Rajesh, the learned Special Government Pleader (Vigilance) appearing for the respondents. 6. The learned counsel for the petitioner contended that the W.P(Crl) No.321 of 2022 4 Investigating agency has omitted to take note of certain vital documents, which would reveal that no charge would lie against the petitioner as alleged by the prosecution. The learned counsel also submitted that the Investigating Officer had omitted to take into account the following facts in the course of investigation, which, if he had taken note of, would have led him to the conclusion that no offence is revealed. - (i) The account details of Smt.Uma Devi, the wife of the petitioner, for the period from 01.07.1994 to 31.02.2002 (Ext.P2). - (ii) The petitioner had entered into an agreement for sale on 24.01.2005 with one Mr. K.R.Krishnakumar whereby the petitioner had obtained a sum of Rs.3 Lakhs as advance consideration (Ext.P3). - (iii) The monthly rent acquired by the petitioner as per lease deed dated 24.06.2003 (Exhibit P5). - (iv) The amount found in account No.3424 of State Bank of Travancore, Civil Station Branch in the name of Smt. Uma Devi, the wife of the petitioner. W.P(Crl) No.321 of 2022 5 (v) Sri.Suresh, the brother-in-law of the petitioner, who was working abroad, had transferred a sum of Rs.60,000/- through his NRI account to the petitioner. 7. The learned Special Government Pleader submitted that the Investigating Officer had considered the materials produced by the petitioner during the course of investigation and recorded sound reasons for rejecting, if any, in the final report. The learned Special Government Pleader further contended that the materials sought to be considered at this stage are matters of evidence, which the petitioner could agitate during the course of trial. The Investigating Officer has submitted a counter statement through the Special Government Pleader . 8. The learned counsel for the petitioner submitted that Smt.Uma Devi, the wife of the petitioner, had maintained Ext.P2 account with the State Bank Travancore wherein the transactions coming to a sum of Rs.5,27,931/- were recorded during the check period. 9. The Investigating Officer mainly relied on the statement of W.P(Crl) No.321 of 2022 6 witness No.33 and the statement furnished by the employer of the wife of the petitioner to contend that the amount referred to above was not lawfully acquired by the wife of the petitioner. The statement of witness No.33 refers to SB Account No.5551 of SBT Civil Station. Exhibit P2 shows that the wife of the petitioner had maintained account No.C3424. 10. The learned counsel for the petitioner relied on Ext.P3 sale agreement to contend that the lawful income of the petitioner was not considered by the Investigating Officer. Exhibit P3 is a sale agreement dated 24.01.2005 executed between the petitioner and one Sri. K.R.Krishnakumar, his brother-in-law. Exhibit P3 would show that on the date of execution of that agreement, the petitioner had received a sum of Rs.3 lakhs as advance consideration. The Investigating Officer, in the counter statement, contended that the amount stated to have been received by the petitioner by way of Ext.P3 cannot be taken as his lawful income as the landed property referred to in Ext.P3 agreement remained in his possession and the amount referred to therein was not stated in the annual landed property statement submitted by the petitioner before the W.P(Crl) No.321 of 2022 7 competent authorities and the returns submitted by him before the Income Tax Department. 11. The petitioner contended that he had been receiving rental income in respect of residential building No.A-1051 at Satellite City, Kakkanad to substantiate his contentions. The petitioner relied on Ext.P5 rent deed. 12. The Investigating Officer contended that during investigation, the petitioner failed to produce any material to show that he had been receiving rent in respect of the building mentioned above. A sum of Rs.1,50,000/- had been credited to the account of the wife of the petitioner on 14.10.1996, which is evident from Ext.P2 passbook. The Investigating Officer rejected this amount on the ground that the wife of the petitioner had not declared this income in the Annual Landed Property Statement submitted before the employer and the same was not declared before the Income Tax authorities. 13. According to the petitioner, his brother-in-law Sri. Suresh who was working abroad, had transferred a sum of Rs.60,000/through NRI account which was also not considered by the W.P(Crl) No.321 of 2022 8 Investigating Officer, on the ground that the petitioner has not declared the said income in his Annual Landed Property Statement and before the Income Tax authority. 14. The learned counsel for the petitioner strenuously argued that if the Investigating Officer had taken into account the above material, he could not have entered into a conclusion that the petitioner had amassed wealth disproportionate to his known sources of income. 15. The learned counsel for the petitioner relied on V.S.Achuthanandan v. State of Kerala [2012 (4) KHC 874], Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762] State of West Bengal v. Salap Service Station [(1994) SCC (Cri) 1713] and Hassanbhai Valibhai Qureshi v. Sate of Gujarat (AIR 2004 SC 2078) to fortify his contentions. 16. In Vinay Tyagi v. Irshad Ali (supra), the Apex Court held that a very wide power is vested in the Investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2) of the Code. The legislature has specifically used the expression ‘nothing in this section shall be deemed to preclude 9 W.P(Crl) No.321 of 2022 further investigation in respect of an offence after a report under Section 173 has been forwarded to the Magistrate’, which unambiguously indicates the legislative intent that even after filing of a report before the court of competent jurisdiction, the investigating officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form, the Apex Court held. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage of the primary investigation. 17. In State of West Bengal v. Salap Service Station (supra), the Apex Court held that the purpose of sub-section (8) of Section 173 Cr.PC is to enable the Investigating agency to gather further evidence and that cannot be frustrated. 18. In Hassanbhai Valibhai Qureshi v. Sate of Gujarat (supra), the Apex Court held that the hands of the Investigating agency or W.P(Crl) No.321 of 2022 10 the Court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court from arriving at the truth and do real and substantial as well as effective justice. 19. The learned Special Government Pleader relied on State of Madhya Pradesh v. Virender Kumar Tripathi [(2009) 15 SCC 533] to contend that the matters regarding the income of the relatives of the accused are matters of evidence. 20. In V.S.Achuthanandan v. State of Kerala (supra) this Court held thus: “No doubt, the accused has no right to canvass who should conduct investigation in the crime proceeded against him. However, where he has got a grievance that the investigation is conducted in a most unfair manner, his right to approach a superior police officer to look into that matter moving a representation cannot be considered as something which he could not canvass of or seek redressal.” 21. It is trite that further investigation cannot in anyway trench upon the proceedings before the Court because the final word in regard to further action is with the Court concerned and this final word is sufficient safeguard against any excessive use or W.P(Crl) No.321 of 2022 11 abuse of the power of further investigation by the Police [See: Ram Lal Narang v. State (Delhi Admn.) , (AIR 1979 SC 1791)]. 22. This Court in Bobby Kuruvila v. State of Kerala (MANU/KE/2077/2021) held thus: “When certain aspects of the matter had not been considered during the investigation already conducted and if it is found that further investigation is to be carried out from a different angle, it can be done. An accused can bring to the notice of the Government or the investigating officer certain facts which had been omitted to be noticed or investigated earlier. There is no legal impediment or prohibition for the accused to bring to the notice of the Government or a superior police officer any fact which was omitted to be traced out at the stage of submission of the earlier report.” 23. The upshot of the above discussion is that further investigation to consider the matters discussed above is warranted in the interest of justice. - In the result, the Writ Petition is allowed as follows: - (i) The Director, VACB, Thiruvananthapruam shall take - steps to conduct further investigation in respect of - the matters discussed above as provided in Section 173 (8) of Cr.PC in accordance with law. - (ii) The petitioner is at liberty to produce relevant materials before the Investigating Officer. - (iii) The trial in C.C 351/2016 shall stand deferred till the W.P(Crl) No.321 of 2022 12 report regarding the further investigation is submitted. The investigation shall be completed within a period of three months from the date of production of a certified copy of this judgment. Sd/K.BABU, JUDGE KAS W.P(Crl) No.321 of 2022 13 ## **APPENDIX OF WP(CRL.) 321/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE FIR VC NO.2/2005/SCE Exhibit P2 AN ATTESTED TRUE COPY OF THE PASS BOOK OF THE ABOVE ACCOUNT COVERING THE PERIOD Exhibit P3 TRUE COPY OF THE SALE AGREEMENT ENTERED BETWEEN WHICH THE PETITIONER AND K.R.KRISHNAKUMAR DATED 24.01.2005 Exhibit P4 A TRUE COPY OF THE AFFIDAVIT SWORN TO BEFORE A NOTARY PUBLIC BY N.DEVAKI AMMA REGARDING THE PAYMENT OF THE ABOVE SAID SUM OF RS.1,50,000/- DURING CHECK PERIOD Exhibit P5 A TRUE COPY OF THE LEASE DATED DT.24.06.2003 Exhibit P5(a) A READABLE TYPED COPY OF EXT P5. Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 25TH MARCH 2022 MADE TO THE 2ND RESPONDENT PRAYING FURTHER INVESTIGATION Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 28TH MARCH 2022 SENT TO THE 2ND RESPONDENT PRAYING TO CONDONE FURTHER INVESTIGATION OF THE CASE NO.ACTION HAS BEEN TAKEN BY THE 2ND RESPONDENT ON THE REPRESENTATIONS MADE BY THE PETITIONER PRAYING FURTHER INVESTIGATION OF THE CASE FIR VC NO.2/2006/SCE OF SPECIAL POLICE STATION, ERNAKULAM Exhibit P8 TRUE COPY OF THE DISCHARGE SUMMARY DT.11-02-2021.