Pramod v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 18TH DAY OF JUNE 2013/28TH JYAISHTA 1935** ## **OP(Crl.).No. 1896 of 2013 (Q)** **----------------------------------------** **[CRL.M.P.NO. 641/2012 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE,THRISSUR]** **...............** **PETITIONER:** - **-------------------** **PRAMOD, AGED 44, S/O.GOURI TEACHER, PUTHEN VEETTIL, MOORKANADU DESOM, PORATHUSERY VILLAGE, THRISSUR DISTRICT.** **BY ADVS.SRI.G.SREEKUMAR (CHELUR), SMT.PREETHY KARUNAKARAN, SRI.K.R.ARUN KRISHNAN. SRI.SAYED MURTHALA THANGAL.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682 031.** **2. THE PRINCIPAL FOREST CONSERVATOR, WILD LIFE AND CHIEF WILD LIFE WARDEN, DEPARTMENT OF FOREST, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** **3. THE DIVISIONAL FOREST OFFICER, MALAYATTOOR, KODANAD, ERNAKULAM DISTRICT-683 587.** **4. THE PRINCIPAL SECRETARY TO THE GOVERNMENT, FOREST AND WILD LIFE , F.DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **5. SRI.K.B.GANESHKUMAR, S/O.BALAKRISHNA PILLAI, FORMER FOREST MINISTER, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **Prv.** ## **O.P.(CRL.).NO.1896/2013-Q:** **6. SRI.MOHANLAL, S/O.K.VISWANATHAN, VISMAYAVEEDU, VIDHYA VIHAR ROAD, THEVARA, COCHIN-682 013.** **R1 TO R4 BY ADVOCATE GENERAL SRI. K.P. DANDAPANI, R5 BY ADV. SRI. S. RAJEEV, R6 BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, ADV. SRI.K.R.RADHAKRISHNAN NAIR.** **THIS O.P (CRIMINAL) HAVING COME UP FOR ADMISSION ON 11-06-2013, THE COURT ON 18-06-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **O.P.(CRL.).NO.1896/2013-Q:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: A TRUE COPY OF THE COMMUNICATION OF THE DIVISIONAL FOREST OFFICER, ERNAKULAM DATED NIL.** **EXHIBIT-P2: A TRUE COPY OF THE SEIZURE REPORT IN O.R.14 OF 2012 OF THE MAKEPALA FOREST STATION DATED 12.6.2012.** **EXHIBIT-P3: A TRUE COPY OF THE COMMUNICATION BY THE THIRD RESPONDENT DATED 31/3/2012.** **EXHIBIT-P4: A TRUE COPY OF THE PRIVATE COMPLAINT CRL.M.P.641 OF 2012 DATED 22/9/2012 BEFORE THE HONOURABLE VIGILANCE AND SPL.ENQUIRY COMMISSIONER,THRISSUR.** **EXHIBIT-P5: A TRUE COPY OF THE ORDER PASSED IN CRL.M.P.641 OF 2012 DATED 14/11/2012 ON THE FILE OF THE ENQUIRY COMMISSIONER AND SPL.JUDGE,THRISSUR.** **EXHIBIT-P6: A TRUE COPY OF THE COMMUNICATION OF THE RANGE FOREST OFFICER,KODANAD DTD. 09/10/2012.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(Crl.) No. 1896 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of June, 2013. ## **JUDGMENT** Eschewing the self proclaimed achievements and credentials of the petitioner, the facts essential for the disposal of this Original Petition filed under Article 227 of the Constitution of India fall within a narrow compass. 2. On 22.7.2011, the Income Tax Department is alleged to have conducted a raid in the house of the sixth respondent and they happened to come across elephant tusks kept by the sixth respondent. That was brought to the notice of the third respondent on the very same day itself. Even assuming that the third respondent was not aware of the possession on 22.7.2011, at least on 27.9.2011 when the Income Tax Department in writing informed respondents 2 to 4 about the search and seizure, they must be deemed to have knowledge about the possession of the objectionable article by the sixth respondent. The O.P.(Crl.) 1896/2013. 2 petitioner points out that even though an offence is obviously made out, First Information Report was laid only on 12.6.2012. Relying on Exts. P1, P2 and P3, said to be the communications between the Forest Department and one Issack Varghese, it is pointed out that O.R.14 of 2012 of Makepala Forest Station dated 12.6.2012 has been registered on the allegation that the articles are illegally possessed as there is no permission granted by the Government in this regard. It is also pointed out by the petitioner that from the said communication, it is seen that the contraband articles are entrusted to the sixth respondent himself after having seized the same and found it to be Government property. Accusing the fifth respondent of acting hand in glow with the sixth respondent in order to save the sixth respondent from the consequences of the illegal possession of the contraband articles, the petitioner points out that one Anil Kumar laid a private complaint before the Vigilance Court, Thrissur, a copy of which is produced as Ext.P4. In Ext.P4, according O.P.(Crl.) 1896/2013. 3 to the petitioner, it is mentioned that the fifth respondent, quite contrary to the duties attached to his office at the relevant time, has gone out of way to do favour to the sixth respondent in relation to the seizure of the contraband articles from the house of the sixth respondent. Even though the fifth respondent attempted to get favourable orders from the Central Government, he was not successful in doing so. The allegation is that the fifth respondent has used his office in an attempt to shower benefit to the sixth respondent, which is unexpected of the office which he holds. Ext.P4 complaint was dismissed by the Vigilance Court finding that the matter is pending before the court of Judicial Magistrate of the First Class. Copy of the said order is produced as Ext.P5. 3. The complaint of the petitioner is two fold; (i) that the dismissal of Ext.P4 complaint by Ext.P5 order is improper, incorrect and illegal and it ought to be restored to file, and (ii) except for filing the O.R. before the JFCM Court concerned, nothing much has happened thereafter 4 O.P.(Crl.) 1896/2013. and the officials are deliberately dillydallying the further investigation and enquiry in order to favour the sixth respondent at the behest of the fifth respondent, thereby acting contrary to law and it is prayed that this court may interfere in the matter and see that proper investigation is done. 4. Learned Advocate General Shri.K.P.Dandapani appearing on behalf of the first respondent pointed out that this is indeed a public stunt adopted by the petitioner to gain cheap publicity. Attention was drawn to the fact that Ext.P4 complaint was not filed by the petitioner and therefore, he has no locus standi to challenge Ext.P5 order. Apart from the said fact, learned Advocate General also pointed out that O.R. 14 of 2012 has been filed before the JFCM Court concerned and the investigation and enquiry are going on. The petitioner has not been able to point out any flaw either in the investigation or enquiry or any illegality therein and the petitioner wants this court to go on a fishing expedition to find out materials for him to 5 O.P.(Crl.) 1896/2013. substantiate his contentions. This is highly objectionable. The petitioner has no information about the stage of the proceedings, nor has he bothered to find out about the same. The entire burden is thrown on this court. Relying on the decision reported in **P.Seshadri v. S. Mangati Gopal Reddy** ((2011) 5 SCC 484) it was contended that the court should be extremely careful in dealing with such petitions which are not filed in public interest, but is publicity oriented. Pointing out that the petitioner is not entitled to any relief, learned Advocate General contended that the petition is only to be dismissed. 5. Learned counsel appearing for the fifth and sixth respondents pointed out that even as admitted by the petitioner, criminal proceedings have been initiated against the sixth respondent and it is pending. Unless it is shown that there is some illegality in the acts being done by the officers concerned, this court may not be justified in issuing directions without knowing the entire details and the petitioner has not bothered to give any details regarding the O.P.(Crl.) 1896/2013. 6 matter. The counsel also pointed out that the petitioner has no locus standi to challenge Ext.P5 order. 6. Before going into the issue involved, the reliefs sought for in this petition may be taken note of, which read as follows: “i) Call for the records leading to Ext.P5 and may be pleased to quash the same by issuing an appropriate order or direction in the interest of justice. ii) Issue an appropriate writ, order or direction commanding the learned Magistrate, Perumbavoor to complete the proceedings in O.R. No.14 of 2012 if the same is still pending, or in the alternative to direct the said Magistrate to reopen that case and complete the proceedings in accordance to law within specified time limits in the interest of justice.” 7. At the outset itself, it may be pointed out that the allegations against the fifth respondent is totally baseless and without foundation and can even be said to be unkind. The accusation made against the fifth respondent is that he has gone out of way to favour the sixth respondent O.P.(Crl.) 1896/2013. 7 in the transaction involved in these proceedings. All that the fifth respondent has done is, even according to the petitioner, he had sent a communication to the Central Minister for Environment and Forest pointing out certain difficulties faced by certain persons who own elephants and other articles and to consider an opportunity to be given to them to legalise their possession of those articles and animals. By Ext.P5 order, the request made by respondent No.5 was turned down by the Minister for Environment and Forest, Government of India. To accuse the fifth respondent for having written that communication to the Central Ministry of indulging in favouritism and nepotism and going out of way to favour the sixth respondent will be quite unjustified. True, the communication addressed by the fifth respondent is long after the initial time provided for legalizing the possession. But there is nothing to show that the fifth respondent has in any manner exercised his powers to favour the sixth respondent. Therefore, this contention has necessarily to fall. O.P.(Crl.) 1896/2013. 8 8. As rightly pointed out by the learned counsel for the respondents including the learned Advocate General, one fails to understand how the petitioner has got locus standi to challenge Ext.P5. 9. Adv. Sreekumar G. Chelur relying on the public trust doctrine contended for the position that any citizen can agitate the said issue when the State acts in contravention of the duties cast upon it without preserving national wealth. 10. There is no doubt true that a citizen can certainly do so, but it should be for a legitimate cause. Here, there is nothing to show that either the State or its officers have acted in breach of the trust reposed on them contrary to public trust doctrine. Therefore, the contention of locus standi posed on public trust doctrine cannot be accepted. 11. Admittedly Ext.P4 complaint was filed by one Anil Kumar. B. The court concerned, after elaborately considering the various aspects, dismissed the same by O.P.(Crl.) 1896/2013. 9 Ext.P5 order. The person who has filed the complaint has not chosen to agitate the matter further. One fails to understand how the petitioner is competent to challenge the same. Apart from the said fact, it is also significant to notice that Ext.P5 clearly mentions that no offence under the Prevention of Corruption Act are either alleged or made out in the complaint and even going by the complaint, the offences alleged are only under the Indian Penal Code. Learned counsel appearing for the petitioner was unable to show that the said finding is erroneous or it has been made overlooking the allegations in the complaint. In the context of the allegations in the complaint, the said court was therefore, perfectly justified in declining to entertain the petition and proceeding further. It was also observed that the fact that the matter is pending before the JFCM-I, Perumbavoor is also a ground to not to entertain the petition. The grounds relied on by the court below to reject the complaint is therefore proper and legal. O.P.(Crl.) 1896/2013. 10 11. Admittedly, an FIR has been filed before the JFCM-I, Perumbavoor. The second prayer noticed in the earlier portion of the judgment is for a direction commanding the learned Magistrate to complete the proceedings in O.S. 14 of 2012. The petitioner is not sure where the matter is pending before the JFCM Court or whether it has already been closed. But the petitioner wants the court to make an enquiry into those aspects and take appropriate steps. As rightly pointed out by the learned Advocate General, the petitioner has conveniently thrown the entire burden on this court to go on a fishing expedition and find out materials for and on his behalf. To a query as to what is the present stage of the proceedings, the petitioner was unable to give an answer. While learned Advocate General stated that investigation and enquiiry are going on, petitioner has not been able to point out any illegality or irregularity in the enquiry or investigation that is said to be going on except that there is delay. There is nothing to show that the officials are delaying the O.P.(Crl.) 1896/2013. 11 investigation and enquiry so as to favour the sixth respondent. In the light of the fact that the petitioner has not been able to point out any instance of officials concerned acting in a manner against the law, it will not be proper for this court to assume that there is violation of the law. The normal presumption is that official duties are deemed to be done in accordance with law unless shown otherwise. Except for throwing some allegations, the petitioner has not placed any material before this court to show that there was any attempt on the part of any of the respondents to unduly favour the sixth respondent or to show that investigation is not being properly carried on in the case pending before the JFCM-I, Perumbavoor. There is also no reason to believe that JFCM-I, Perumbavoor will not be keeping track of the case and will not take such steps as are necessary at the relevant time. 12. As rightly pointed out by the learned Advocate General, there is little public interest in this petition and it is more publicity oriented. It is a clear case O.P.(Crl.) 1896/2013. 12 where exemplary costs ought to be imposed on the petitioner. But probably he was ill-advised to file the petition. Exercising judicial restraints, this court restrains from imposing costs on the petitioner. This petition is without merits and it is accordingly dismissed. **P. BHAVADASAN, JUDGE** sb.