N. Pavithran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 CRL.REV.PET NO. 642 OF 2020** **CRIME NO.81/1995 OF KASARAGOD POLICE STATION, KASARAGOD** **AGAINST THE ORDER IN CC 18/2016 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY, KANNUR** ## **REVISION PETITIONER/PETITIONER/15TH ACCUSED:** **N. PAVITHRAN, S/O.KRISHNAN GURUKKAL, MATLAYI, PILIKKODE P.O., KASARGOD DISTRICT.** **BY ADV T.V.JAYAKUMAR NAMBOODIRI** ## **RESPONDENT/STATE/COMPLAINANT:** **STATE OF KERALA, TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SRI A RAJESH, SPL.PUBLIC PROSECUTOR, VACB** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON 02.08.2021 DELIVERED THE FOLLOWING:** **Crl.R.P.No. 642 of 2020** 2 ## **“C.R”** **R. NARAYANA PISHARADI, J ---------------------------------------------------Crl.R.P.No. 642 of 2020 -----------------------------------------------------** Dated this the 2[nd] day of August, 2021 ## **O R D E R** The petitioner is Accused No.15 in the case C.C.No.18/2016 on the file of the Court of the Enquiry Commissioner and Special Judge, Thalassery. 2. The offences alleged against the accused in the above case are punishable under Sections 7,9,12 and 13(1) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 211, 465, 468, 471, 201 and 120B read with 109 and 114 of the Indian Penal Code (IPC). 3. The persons initially arrayed as Accused 1 to 16 in the case were members of the Director Board of the District Cooperative Bank, Kasaragod (for short 'the Bank'), Accused No.17 was the General Manager, Accused No.18 was the Superintendent of B-Section and Accused No.19 was the Executive Officer of the Bank. The petitioner, who now figures as Accused No.15 in the case, was initially arrayed as Accused No.18. **Crl.R.P.No. 642 of 2020** 3 4. The prosecution case is that the accused had hatched a conspiracy to manipulate the recruitment process conducted in the Bank for appointment of persons to the posts of Clerk, Typist and Peon and pursuant to such conspiracy, they committed forgery of documents, obtained illegal gratification from the candidates and influenced the members of the interview board in the matter of appointment to the above posts. 5. The petitioner filed an application under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code') for discharge. The trial court considered the aforesaid application along with similar applications filed by some other accused. The trial court found that there were sufficient grounds to frame charge against the accused and dismissed the application for discharge filed by the petitioner. 6. The petitioner has filed this revision petition challenging the aforesaid order passed by the trial court. 7. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 8. Learned counsel for the petitioner has raised the following contentions in challenging the impugned order. (1) There was no preliminary enquiry conducted before registration of the **Crl.R.P.No. 642 of 2020** 4 first information report (FIR) in the case. Therefore, the entire investigation conducted pursuant to the registration of the FIR was illegal. (2) The investigation of the case was conducted by a police officer below the prescribed rank and therefore, the entire investigation conducted in the case was illegal. (3) The investigating officer had filed a report in the trial court deleting the name of the petitioner from the array of the accused. Subsequently, without the permission of the court, the petitioner was illegally implicated in the case as an accused. (4) There are no materials produced by the prosecution to prove that the petitioner had any role in the recruitment process or the interview conducted for appointment of staff in the Bank. 9. The investigation in the case had a chequered history. The Deputy Superintendent of Police, C–Branch, Kasaragod has filed a statement which contains the details of the investigation conducted in the case. It is necessary to briefly mention here some aspects with regard to the investigation conducted in the case. 10. The case was initially registered as Crime No. 81/1995 of the Kasaragod Police Station on 03.02.1995 under Sections 161,409 and 465 read with 34 of the IPC against six accused persons on the basis of a complaint filed by the then Vice President **Crl.R.P.No. 642 of 2020** 5 of the Bank. The investigation of the case was then conducted by the Inspector of Police, Kasaragod. After completing the investigation, charge-sheet was filed in the Chief Judicial Magistrate's Court, Kasaragod on 17.10.1996, under Sections 409,468,471,420 and 201 read with 120B, 109 and 114 of the IPC and also Sections 7 and 13(1)(b) read with 13(c) of the Act. The charge-sheet was returned by that court with a direction to file it before the proper court. The charge-sheet was then submitted before the Court of the Enquiry Commissioner and Special Judge, Kozhikode but it was returned on 12.02.1999. A special investigation team headed by a Deputy Superintendent of Police (Dy.S.P) was constituted as per the order of the Director General of Police for conducting the further investigation of the case. A charge-sheet was filed in the Special Court, Kozhikode on 30.03.2001 but it was again returned by that court on 19.04.2001. The investigation of the case was then entrusted to the Dy.S.P of SBCID, Kozhikode. Thereafter, the investigation of the case was transferred to the Dy.S.P of Crime Detachment, Kasaragod. Ultimately, charge-sheet was submitted in the Special Court, Kozhikode on 18.07.2006 by the Dy.S.P of Crime Detachment and cognizance of the offences was taken by that court and the case **Crl.R.P.No. 642 of 2020** 6 was numbered as C.C.No.28/2006. Subsequently, the case was transferred to the Special Court, Thalassery and re-numbered as C.C.No.18/2016. 11. The contentions raised by the learned counsel for the petitioner shall be now considered. 12. It is a misconception that conducting preliminary enquiry in all corruption cases is mandatory before registration of FIR in such cases. In **Lalita Kumari v. Govt of Uttar Pradesh: (2014) 2 SCC 1,** the Constitution Bench of the Supreme Court has specified the cases in which a preliminary enquiry is warranted and such cases include corruption cases. But, it does not mean that a preliminary enquiry has to be conducted in all corruption cases before registration of FIR (See **State of Telangana v. Sri** **Managipet @ Mangipet Sarveshwar Reddy: (2019) 19 SCC 87** ). 13. The following excerpts from **Mangipet Sarveshwar Reddy** (supra) make clear the above position of law. _“In Lalita Kumari, the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a police officer is_ **Crl.R.P.No. 642 of 2020** 7 _doubtful about the veracity of an accusation, he has to conduct a preliminary inquiry and that in certain appropriate cases, it would be proper for such officer, on the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in the complaint are credible.....The Court concluded that the registration of an FIR is mandatory under Section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.....It must be pointed that this Court has not held that a preliminary inquiry is a must in all cases....The judgment of this Court in_ _**Lalita Kumari** does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry....The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid_ **Crl.R.P.No. 642 of 2020** 8 _down in_ _**Lalita Kumari** ....It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed.”_ Ultimately, the Apex Court held as follows: _“Therefore, we hold that the preliminary inquiry warranted in_ _**Lalita Kumari** is not required to be mandatorily conducted in all corruption cases.”_ 14. Therefore, the fact that there was no preliminary enquiry conducted before registration of the FIR in the case is not a sufficient ground to find that the entire investigation conducted was illegal. 15. Another contention raised by the petitioner is with regard to the incompetency of the investigating officer who conducted the investigation of the case. Section 17 of the Act states that, notwithstanding anything contained in the Code, no police officer below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank shall investigate any offence punishable under the Act without the order of the Magistrate concerned. The first proviso to Section 17 of the Act **Crl.R.P.No. 642 of 2020** 9 states that, if a police officer not below the rank of an Inspector of Police is authorised by the State Government by a general or special order, he may also investigate any such offence without the order of the Magistrate. 16. In the present case, the investigation of the case was initially conducted by an Inspector of Police. By virtue of the power conferred upon the State Government under the first proviso to Section 17 of the Act, the Government, as per Notification No.12094/C1/88/Vig. dated 02.03.1993, have authorised police officers not below the rank of an Inspector of Police to investigate any offence punishable under the Act without the order of a Magistrate within the jurisdiction of the particular police station to which the police officer is attached to. A reference to this notification has been made by this Court in **Karunanidhi v. State of Kerala (2020 (2) KHC 211: 2020 (2) KLT 129)** . Therefore, there is no merit in the contention raised by the petitioner with regard to the incompetency of the investigating officer. 17. Moreover, the investigation in the present case was subsequently conducted by police officers of the rank of Deputy Superintendent of Police. The final report in the case was filed by a police officer in the rank of a Deputy Superintendent of Police and **Crl.R.P.No. 642 of 2020** 10 cognizance of the offences under the Act was taken by the trial court on the basis of such final report filed by a competent police officer. 18. Moreover, incompetency of the investigating officer will not vitiate the trial or conviction unless it is shown that there was prejudice caused to the accused (See **Vinod Kumar Garg v. State: AIR 2020 SC 1797** ). The question whether any prejudice has been caused to the petitioner due to the investigation conducted by an officer below the rank of Deputy Superintendent of Police is a question of fact which could be decided only after the trial of the case. 19. Further, a defect or irregularity in investigation has no bearing on the competency of the court or procedure relating to cognizance or trial (See **Ashok Tshering Bhutia v. State of Sikkim: AIR 2011 SC 1363** ). 20. On 21.05.2004, the then investigating officer had filed a report dated 18.05.2004 in the Special Court stating that no case as alleged in the FIR or otherwise was made out against the petitioner and praying that the name of the petitioner may be deleted from the list of the accused. Subsequently, the name of the petitioner was again included in the list of the accused on **Crl.R.P.No. 642 of 2020** 11 02.11.2005 by the then investigating officer. There is nothing to show that the Special Court had accepted the report dated 18.05.2004 filed by the investigating officer for deleting the name of the petitioner from the array of the accused. The report dated 18.05.2004 made by the investigating officer was only an intimation given to the Special Court that the investigation was not then continued against the petitioner. The above report did not create any vested right in favour of the petitioner. Such reports have to yield and give way to the final opinion expressed by the investigating officer in the final report. What is to be considered is whether the final report filed by the investigating officer and the materials produced along with it, prima facie, disclose the involvement of the petitioner in the commission of the offences alleged against him. 21. Investigation is a process comprising of several stages and aspects. It is the final report filed under Section 173 of the Code that constitutes the final opinion of the investigating officer with regard to the commission of offences by a person. The final report reflects the result of the investigation. During the course of the investigation of a case, several developments may take place. Depending on the evidence or materials collected in the course of **Crl.R.P.No. 642 of 2020** 12 the investigation, names of persons who figured as accused in the FIR may be deleted and names of persons who did not figure in the FIR may be included. It is well known that, whatever offence is committed, it is not necessary that the investigation shall be confined to the role of only those persons arrayed as accused in the FIR or with reference to penal provisions mentioned in it. Once a case is registered, under whatever provision, during the course of the investigation conducted, the situation may warrant inclusion of the names of new persons as the accused or deletion of the names of existing accused and also invocation of new or different provisions than those mentioned in the FIR. 22. The position of law in this regard has been beautifully stated by the Andhra Pradesh High Court in **Elluru Pedda Dastagiri Reddy v. Superintendent of Police: 2003 (6) ALD 333** as follows: _“During the course of investigation, the pendulum of suspicion may keep on oscillating through out all these stages. It is only when such pendulum comes to standstill, that the investigation can be said to have been completed. No individual can claim a right on the basis of a tentative opinion that may have emerged during the course of investigation. The investigating agency would submit a report, be it_ **Crl.R.P.No. 642 of 2020** 13 _in the form of a charge-sheet or a final report, depending on the outcome of investigation. The truth or otherwise of the allegations against the accused would be decided only by the concerned court.”_ 23. During the course of the investigation, on collecting evidence against the petitioner regarding his involvement in the commission of the offences, there was no impediment to again include his name in the list of the accused. Mere filing of the report dated 18.05.2004 in the Special Court by one of the investigating officers for deleting the name of the petitioner from the list of the accused did not amount to discharge of the petitioner. The petitioner is not entitled to get an order of discharge on that ground. 24. Learned counsel for the petitioner contended that the petitioner was not a member of the interview board and that the petitioner had no role in conducting the interview or appointment of the staff in the Bank. 25. Regarding the charges levelled against the accused by the prosecution, in the impugned order, the trial court has stated as follows: **Crl.R.P.No. 642 of 2020** 14 _“The core issues involved in this case is that A1 to A16 as the members of Director Board and officers of Kasaragod District Co-operative Bank, abused their position as public servants and hatched criminal conspiracy with A17 to A24 and obtained illegal gratification by abusing their official position as public servants in the appointment of Clerk, Typist and Peon vacancies of the bank. In order to achieve their motive to obtain illegal gratification all these accused interfered in the recruitment process and accepted illegal gratification and given answer sheets to the candidates, from whom the accused obtained illegal gratification, to fill the answers from the home of the accused and given higher marks in the examination. Thus all the accused have committed forgery of answer sheets and used those forged documents for cheating purpose and finally appointments were given to candidates from whom the accused received illegal gratification and thereby all the accused committed the offence stated in the final report.”_ 26. The trial court has observed in the impugned order that the statement of CW1 would show that the petitioner was the custodian of the answer sheets of the examination conducted for recruitment of the staff in the Bank. Further, the trial court has also stated in the impugned order that CW38, CW45, CW70 and CW72 have given statements with regard to the involvement of the **Crl.R.P.No. 642 of 2020** 15 petitioner in the malpractices conducted in the recruitment of employees in the Bank. The petitioner has not challenged the correctness of these observations made by the trial court. 27. The principles with regard to framing of charge and discharge are well settled. At the stage of considering the application for discharge, the court must proceed on the assumption that the materials which have been brought on record by the prosecution are true and evaluate such materials in order to determine whether the facts emerging from them, taken on their face value, disclose the existence of the ingredients necessary to constitute the offences alleged against the accused (See **State v. Hiremath: AIR 2019 SC 2377** ). 28. The court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. At the same time, the court shall not conduct a roving enquiry into the pros and cons of the matter and weigh the materials as if it is conducting a trial. The probative value of the materials produced by the prosecution cannot be gone into at this stage. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the court is empowered to discharge the accused **Crl.R.P.No. 642 of 2020** 16 ## (See **State v. S.Selvi: AIR 2018 SC 81** ). 29. What needs to be considered is whether there is ground for presuming that the offence has been committed and not whether any ground for convicting the accused has been made out. Even strong suspicion found on materials which lead 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 for that offence (See **Onkar Nath Misra v. State: (2008) 2 SCC 561** ). 30. One thing more needs mention here. Under Section 227 of the Code, the Court is required to discharge the accused if it “considers that there is not sufficient ground for proceeding against the accused”. However, discharge under Section 239 of the Code can be ordered when “the Magistrate considers the charge against the accused to be groundless”. The power to discharge under Section 245(1) of the Code can be exercised when, “the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted would warrant his conviction”. Notwithstanding the difference in the language employed in these provisions, whichever provision is applicable, the court is required at this stage to see **Crl.R.P.No. 642 of 2020** 17 that there is a prima facie case for proceeding against the accused (See **Tarun Jit Tejpal v. State of Goa: 2019 SCC OnLine SC 1053** ). ## 31. In **Om Wati v. Delhi Administration: AIR 2001 SC** **1507,** the Apex Court has observed as follows: _“Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed.”_ 32. In the instant case, on the basis of the statements of the prosecution witnesses, the trial court has come to a conclusion that there is a prima facie case for proceeding against the petitioner. There is no sufficient ground to interfere with the aforesaid finding made by the trial court. The revision petition is liable to be dismissed. Consequently, the revision petition is dismissed. ## **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.R.P.No. 642 of 2020** 18 ## **APPENDIX OF CRL.REV.PET 642/2020** ## **PETITIONER ANNEXURE** **ANNEXURE A1 TRUE COPY OF DELETION REPORT DATED 18.5.2004. ANNEXURE A2 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COOPERATIVE BANK LTD., KASARGOD REGARDING THE APPOINTMENT CELL. ANNEXURE A3 TRUE COPY OF THE CIRCULAR 18/1994 OF REGISTRAR OF RECRUITMENT CELL.** **ANNEXURE A4 TRUE COPY OF THE CIRCULAR 18/94.** **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**