Maria Agnes Luke v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** **OP(Crl.).No. 566 of 2016 (Q) ----------------------------CC 37/2015 of ENQUIRY COMMISSION AND SPPECIAL COURT, VIGILANCE, THRISSUR ----------** **PETITIONER(S): -------------** **MARIA AGNES LUKE, AGED 60 YEARS, W/O PETER, THUNDIPARAMBIL P.O., VENNALA - 682028, ERNAKULAM DISTRICT.** **BY ADVS.SRI.T.ASAFALI SRI.RASHEED C.NOORANAD** **RESPONDENT(S): --------------** **THE STATE OF KERALA REP. BY DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. HRITWIK** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **OP(Crl.).No. 566 of 2016 (Q)** ## **-----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1: TRUE COPY OF THE F.I.R. EXHIBIT P2: CERTIFIED COPY OF THE FINAL REPORT DATED 12.11.2011. EXHBIBIT P3: TRUE COPY OF THE DOCUMENT FURNISHED UNDER THE RTI ACT. EXHIBIT P4: TRUE COPY FO THE CIRCULAR DATED 18.1.2008 AND DULY COMMUNICATED TO THE SRO'S AND RECEIVED ONLY ON 16.2..2008. EXHIBIT P5: TRUE COPY OF THE CIRCULAR DATED 23.5.2008 ISSUED BY THE INSPECTOR GENERAL, REGISTRATION. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 24.6.2016 MADE IN CRL.M.C.NO.2229/2016 QUASHED THE CHARGE AS AGAINST THE 2ND ACCUSED IN THE FIR. RESPONDENT(S)' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE** ## **bp** ## **B. KEMAL PASHA, J.** ................................................................ O.P.(Crl) No. 566 of 2016 ............................................................... Dated this the 16[th] day of December, 2016 ## **J U D G M E N T** The petitioner is the 1[st] accused in C.C.No.37 of 2015 of the Court of the Enquiry Commissioner and Special Judge(Vigilance), Thrissur, which has arisen from VC 9/09/EKM, for the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 120B IPC. 2. The petitioner was the Sub Registrar of the Chennamangalam Sub Registry Office for the period from 22.08.2007 to 30.01.2008. It is alleged that the petitioner along with A2 and A3 had hatched a criminal conspiracy to violate the provisions of the Kerala Land Reforms Act, 1963 (for short 'the KLR Act') for making undue enrichment to A3, who is none other than the name lender of one Santhosh O.P.(Crl) 566 of 2016 -: 2 :- Madhavan @ Swami Amrutha Chaithanya. In pursuance of the conspiracy, it is alleged that, all the accused wanted to infringe the provisions of the KLR Act in order to enable the aforesaid Santhosh Madhavan to make undue enrichment. The said Santhosh Madhavan has executed 23 sale deeds in favour of A3 in respect of 91.10.620 acres of land. It is alleged that in pursuance of the conspiracy, the petitioner caused the registration of the said 23 sale deeds, disregarding the ceiling limit of the said land by violating the provisions of Section 82 of the KLR Act. A2 was the Village Officer concerned, who had allegedly recommended for the mutation of the property. The mutation was also carried out. It was alleged that the 2[nd] accused had suppressed the fact that the land to be mutated exceeded the ceiling limit of 15 Acres. 3. This Court vide order dated 24.06.2016 in Crl.M.C. 2229 of 2016 had quashed the entire proceedings against the 2[nd] accused in this case. 4. Heard the learned counsel for the petitioner Sri.T. O.P.(Crl) 566 of 2016 -: 3 :- Asaf Ali and the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner has argued that the petitioner has not committed any illegal act in this case and there was no occasion for the petitioner to commit any offence in this case by causing the registration of the said sale deeds. It has also been argued that, only when an illegal act or something forbidden by law has been committed, it can be categorised as an offence of criminal conspiracy and therefore, it is not possible for the prosecution to allege a criminal conspiracy on the part of the petitioner for causing an agreement to commit an offence or an illegal act, in this case. It has also been pointed out that the details of the so-called conspiracy has not so far been narrated or made clear by the investigating officer in the Final Report. The learned counsel for the petitioner has relied on Ext.P5 dated 21.05.2008 in order to point out that the petitioner has not committed anything forbidden by law. 6. Section 120A of the KLR Act, which has been incorporated through 1972 Amendment, reads as follows: O.P.(Crl) 566 of 2016 -: 4 :- _“Notwithstanding anything contained in the Registration Act, 1908, where the District Collector or any other officer authorised by the Government in that behalf informs the registering officer in writing that there are reasonable grounds to believe that any document relating to transfer of land which may be presented before him for registration is intended to defeat the provisions of the KLR Act, such registering officer shall not register such document until the District Collector or the officer so authorised, as the case may be, informs the registering officer that the transfer is not intended to defeat the provisions of the KLR Act.”_ 7. Ext.P5 is such a Circular issued by the Registration Inspector General, who is also authorised to issue such a circular. The said Ext.P5 circular is dated 21.05.2008. At the same time, the allegation is that all the 23 sale deeds in question were caused to be registered during the period from 22.08.2007 to 30.01.2008. The only provision in the KLR Act that restricts the power of the Sub O.P.(Crl) 566 of 2016 -: 5 :- Registrar to cause registration of a document is the one contemplated under Section 120A of the KLR Act. The said provision comes into play only on the information in writing from the part of the District Collector or the officer authorised in that behalf to the registering officer. If no such intimation is given to the registering officer, it cannot be said that the registering officer should not cause the registration of a document, properly executed and placed before him for registration, provided, adequate stamp duty and registration fee are paid. When Ext.P5 Circular is much after the execution of the registration of the aforesaid 23 sale deeds, it cannot be said that the petitioner had violated the provisions of the KLR Act. 8. In order to attract the offence of criminal conspiracy, the details of the conspiracy have to be furnished. Here, in this particular case, it has not been made clear as to what was the offence for which the conspiracy was allegedly hatched. In order to attract the offence under Section 120B IPC, there should be a criminal O.P.(Crl) 566 of 2016 -: 6 :- conspiracy within the meaning of Section 120A IPC. Such a conspiracy can be there only if two or more persons agree to do or caused to be done any illegal act. As per Section 120A(2) IPC, the agreement to do an act which is not illegal, by illegal means, can also be termed as criminal conspiracy. Here, it cannot be said that there was any criminal conspiracy among A1, A2 and A3 for doing an act which is not illegal, by illegal means also. 9. Over and all the above, when the petitioner was bound under law to cause the registration of the documents properly presented before him for registration, the act committed by the petitioner in causing the registration of those documents is an act protected by law under Section 79 IPC. When the petitioner is protected by Section 79 IPC, it cannot be said that there was any criminal conspiracy among the petitioner and A2 and A3. 10. Regarding the evidence under Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988, it has to be noted that there should be specific allegations to invite such O.P.(Crl) 566 of 2016 -: 7 :- an offence. Only when specific allegations are there which contained necessary ingredients to invite such an offence, it can be said that somebody has committed such an offence. In order to bring out an offence under Section 13(1)(d) of the P.C. Act, a Public Servant shall commit criminal misconduct, if he, _(i) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or_ _(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or_ _(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;_ The penal provision for such a misconduct is the one contained under Section 13(2) of the P.C. Act. 11. Annexure V Final Report does not reveal any of the ingredients to invite an offence under Section 13(1)(d) O.P.(Crl) 566 of 2016 -: 8 :- read with Section 13(2) of the P.C. Act in this case. It has not been alleged that the petitioner as a 'Public Servant' has obtained for himself or for any other person, any valuable thing or pecuniary benefit. There is no allegation that he has obtained any pecuniary benefit without any public interest. It has not been alleged that by corrupt or illegal means he has obtained for himself or for any other person any valuable thing or pecuniary benefit. 12. Apart from all the above, time and again the Apex Court has repeatedly held that the allegation of demand and proof of demand is required to invite an offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act. The petitioner has invited the attention of this Court to the decision in _**Sukumarn N. v. State of Andhra Pradesh** [2015 Crl.L.J. 4927]_ wherein it was held: “The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any O.P.(Crl) 566 of 2016 -: 9 :- valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow.” When those allegations are not there, there is absolutely nothing to invite an offence under Section 13(1)(d) read with Section 13(2) of the P.C.Act as against the petitioner. 13. When there is no proof of demand and the ingredients of an offence under Section 13(1)(d) of Section 13(2) are not revealed, the presumption under Section 20 of the P.C. Act is not available to the prosecution. Over and above all these, there is not even an allegation that there was any demand or acceptance of any illegal gratification. Matters being so, this Crl.M.C. is only to be allowed and all further proceedings against the petitioner are only to be quashed. O.P.(Crl) 566 of 2016 -: 10 :- 14. From all the above, it has come out that there is no merit in the allegations as against the petitioner herein. Therefore, the proceedings against the petitioner are patently unwarranted and unnecessary. Hence, all further proceedings against the petitioner in C.C.No.37/15 of the Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur, on the basis of Ext.P2 final report, which has arisen from Ext.P1 FIR in VC 9/09/EKM, are liable to be quashed. In the result, this O.P.(Crl.) is allowed and all further proceedings against the petitioner in C.C.No.37/15 of the Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur, on the basis of Ext.P2 final report, which has arisen from Ext.P1 FIR in VC 9/09/EKM, are hereby quashed. **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.