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High Court of KeralaSingle JudgeOriginal petition dismissed; the impugned order...

Rajan v. State of Kerala and others

Case / Petition Number:OP(Crl) No.329/2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • R. Narayana Pisharadi, J.
Judgment Date
2021-09-10
Court Decision / Holding
The High Court refuses to interfere with the Special Court’s order. It treats the dismissal as a pre-cognizance rejection of the complaint under Cr.P.C. and dismisses the original petition. It clarifies that the petitioner may file a fresh complaint with adequate materials, and if filed, the Special Judge will act in accordance with law. The impugned order is therefore upheld as a rejection of the complaint at the pre-cognizance stage, and no cognizance is to be taken at this stage.
Final Disposition
Original petition dismissed; the impugned order treated as rejection of the complaint at the pre-cognizance stage; petitioner may file a fresh complaint with adequate materials.

Parties to the Case

Appellants / Petitioners

  • Rajan

Respondents

  • 1 State of Kerala represented by the Secretary, Revenue Department, Government Secretariat, Thiruvananthapuram-695001
  • 2 The Tahsildar Taluk Office, Chengannur-689622
  • 3 The Village Officer Mannar Village, Mannar P.O.-689622
  • 4 M.Basheer Sub Registrar's Office in 2003, Mannar-689622
  • 5 Anil Kumar Stamp Vendor (Licence No.ADA 369), Vadavakkad Veedu, Budhanoor P.O., Chengannoor, Alappuzha District-689001
  • 6 Suresh Kumar ASB 515 PadayilathU Veedu, Vishvasserikara, Mannar P.O., Alappuzha District-689001
  • 7 Thulasi Bai Dwaraka House, Kottanperoor P.O., Mannar, Chengannoor, Alappuzha District-689001
  • 8 Rajappan S/O Kunju Panicker, Parumala Purayidom, Kuttanperoor, Mannar, Chengannoor, Alappuzha Dist-689001
  • 9 The District Collector Collectorat Alappuzha

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. M. Ramaswamy Pillai
  • • Smt. Preethy R. Nair

Counsels for Respondents

  • • Sri. Deepak Joy K.
  • • Sri. P. Vinodkumar
  • • Smt. A. Anumol
  • • Smt. A. R. Anitha
  • • Smt. Rekha S.

Case Synopsis & Summary

Rajan, the petitioner in OP(Crl) No.329/2016, challenges an order of the Enquiry Commissioner and Special Judge, Kottayam, that dismissed Ext.P3, the criminal complaint filed under the Prevention of Corruption Act, 1988 against respondents 2 to 8. The complaint alleged that public land (4.50 acres) in RS No. 422/7, Mannar Village, was taken by the first accused with the help of others and that a forged sale deed (document No. 1599/2003, SR0 Mannar) was executed in favour of accused 7, framed through a conspiracy and false survey pattayam numbers. The Special Court dismissed the complaint on the ground that there were no materials to support the allegations and that the property is not shown to be purambokku land; the court suggested the petitioner should have produced documents from Revenue authorities to prove land status. The petitioner challenged this order under Article 227, contending that materials existed and that cognizance should have been taken or that the matter should be investigated under Section 156(3) Cr.P.C. The High Court, however, finds no jurisdiction to interfere; it notes that the core issue is whether there is sufficient basis to proceed. It further observes that the law permits rejection of a complaint at the pre-cognizance stage and treats the present dismissal as such, while granting leave to file a fresh complaint with adequate materials. Consequently, the petition is dismissed.

Provisions of Law Cited

Prevention of Corruption Act, 1988 – Sections 7, 11, 12 and 13Constitution of India, Article 227CrPC – Section 156(3)CrPC – Section 203

Legal Doctrines & Maxims

  • Pre-cognizance rejection of a complaint is treated as rejection of the complaint
  • Power of Magistrate to reject at pre-cognizance stage; distinction from post-cognizance dismissal under Section 203 Cr.P.C.
  • Raju Puzhankara v. State of Kerala (2008) 2 KHC 318; 2008 (2) KLT 467 (cited as authority for pre-cognizance rejection)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P3, read with attached exhibits, discloses a prima facie case of offences under the Prevention of Corruption Act and that there was material linking accused officers with a conspiracy to cause wrongful alienation of government land through a forged sale deed (document No. 1599/2003). It is argued that cognizance should have been taken or the matter should have been directed to investigation under Section 156(3) Cr.P.C. The petitioner maintains that the impugned order dismissing the complaint at the pre-cognizance stage is unsustainable and that Article 227 jurisdiction permits correction when the petition discloses illegality or excess of jurisdiction. The petitioner asks for cognizance to be taken or for a direction to proceed in accordance with law.

Contentions of Respondents

The respondents argue that the materials produced do not establish that the land is purambokku (Government) land or that a conspiracy existed. They point to the Thandaper account indicating the property belongs to the petitioner's mother and contend that using a pattayam number in the sale deed cannot by itself cast doubt on arbitration or corruption. They emphasize the absence of competent materials showing a purambokku title and observe that the Special Court rightly dismissed the complaint for lack of materials. They submit that the High Court should not interfere with a pre-cognizance rejection, and the proper course is to allow a fresh complaint only if adequate material is produced.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Raju Puzhankara v. State of Kerala2008 (2) KHC 318PositiveCited to support treating pre-cognizance dismissal as rejection of the complaint.
Raju Puzhankara v. State of Kerala2008 (2) KLT 467PositiveSame proposition cited in the same context as the above decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943 OP(CRL.) NO. 329 OF 2016** **AGAINST THE ORDER IN CRMP 44/2015 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM** ## **PETITIONER:** RAJAN AGED 52 YEARS S/O. KUNJU PANICKER, RESIDING AT ANUVILLA, KUTTANPEROOR P.O., MANNAR VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.M.RAMASWAMY PILLAI SMT.PREETHY R. NAIR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE TAHSILDAR TALUK OFFICE, CHENGANNOOR-689 622. 3 THE VILLAGE OFFICER MANNAR VILLAGE, MANNAR P.O.-689 622. 4 M.BASHEER SUB REGISTRAR'S OFFICE IN 2003, MANNAR-689 622. 5 ANIL KUMAR STAMP VENDOR (LICENCE NO.ADA 369), VADAVAKKAD VEEDU, BUDHANOOR P.O., CHENGANNOOR,ALAPPUZHA DISTRICT-689 001. 6 SURESH KUMAR ASB 515 PADAYILATHU VEEDU, VISHVASSERIKARA, MANNAR P.O., ALAPPUZHA DISTRICT-689 001. 7 THULASI BAI DWARAKA HOUSE, KOTTANPEROOR P.O., MANNAR,CHENGANNOOR, ALAPPUZHA DISTRICT-689 001. 2 O.P.(Crl) No.329/2016 8 RAJAPPAN S/O. KUNJU PANICKER, PARUMALA PURAYIDOM, KUTTANPEROOR, MANNAR, CHENGANNOOR, ALAPPUZHA DISTRICT-689 001. 9 THE DISTRICT COLLECTOR COLLECTORATE, ALAPPUZHA-689 001. BY ADVS. SRI.DEEPAK JOY.K. SRI.P.VINODKUMAR SMT.A.ANUMOL SMT.A.R.ANITHA SMT REKHA S- SR PP THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON 10.09.2021 DELIVERED THE FOLLOWING: O.P.(Crl) No.329/2016 3 ## **R.NARAYANA PISHARADI, J ************************ O.P.(Crl).No.329 of 2016 ------------------------------------Dated this the 10[th] day of September, 2021 ----------------------------------------------- ## **J U D G M E N T** The petitioner filed Ext.P3 complaint in the Court of the Enquiry Commissioner and Special Judge, Kottayam against respondents 2 to 8, alleging that they committed the offences punishable under Sections 7, 11, 12 and 13 of the Prevention of Corruption Act, 1988 (for short 'the Act'). 2. Respondents 2 to 8, who are arrayed as Accused 1 to 7 in Ext.P3 complaint, shall be hereinafter also referred to as accused in accordance with their rank in the complaint. 3. The first accused was the Tahsildar, Chengannur Taluk. The second accused was the Village Officer of Mannar Village (these persons are arrayed in the complaint only in their official O.P.(Crl) No.329/2016 4 capacity). The third accused was the Sub Registrar of the Sub Registrar's office, Mannar. Accused 4 to 7 are private persons. 4. The allegations raised in Ext.P3 complaint against the accused can be briefly stated as follows: The property having an extent of 4.50 Ares comprised in R.S.No.422/7 of Mannar Village in Chengannur Taluk is Government land. The 6[th] accused took possession of the aforesaid property with the help of Accused 1 to 5 and thereafter, she sold it in favour of Accused No.7 by executing a false sale deed as document No.1599/2003 of S.R.O, Mannar. The 4[th] accused is the scribe and the 5[th] accused is the attestor of that sale deed. The third accused is the person who registered the sale deed. The aforesaid sale deed was executed pursuant to a criminal conspiracy hatched by the accused. The accused have shown a false survey pattayam number in the sale deed. It is stated in that document that the father and the mother of the sixth accused obtained title over the property by the pattayam mentioned in that document. O.P.(Crl) No.329/2016 5 5. The Special Court dismissed the complaint on the finding that there were absolutely no materials to make out a case against the accused as alleged in the complaint. 6. This original petition is filed under Article 227 of the Constitution of India by the complainant challenging the aforesaid order (Ext.P4) passed by the Special Court. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel who appeared for the party respondents. 8. The reasons for dismissing the complaint are stated in the impugned order as follows: _“Even though the complainant raised the above said allegations against the respondents, no sufficient materials have been produced to believe them. There is absolutely nothing to show that the property covered under the above sale deed is a purambokku land. The complainant could have produced document issued from the Revenue Authorities to show that the said property is a purambokku land. On the other hand, the document produced by the complainant (Annexure VI) itself is_ O.P.(Crl) No.329/2016 6 _sufficient to show that the case of the complainant is not correct. The Annexure VI is the copy of the Thandaper account issued by the Village Officer, Mannar. It shows that property involved in the document in question belongs to the mother of the complainant as per a Thandaper No.2430. The mere fact that the Thandaper number is shown as the pattayam number in the document, cannot be considered to doubt any corruption in the execution of the document in question. As there is absolutely no materials to make out a case alleged in the complaint I am inclined to dismiss the same.”_ 9. The substratum of the case against the accused is that they created a false sale deed in respect of Government land. As rightly observed by the Special Court, the petitioner could and should have produced documents which show that the land covered by the sale deed executed by the 6[th] accused was Government land. In the absence of any such material produced before the Special Court, the case against the accused, as projected by the petitioner in the complaint, had no basis at all. 10. In the above circumstances, I find no sufficient ground to exercise the jurisdiction of this Court under Article 227 of the O.P.(Crl) No.329/2016 7 Constitution of India to interfere with the impugned order passed by the Special Court. 11. However, one thing requires to be noticed. The complaint was dismissed by the Special Court without taking cognizance of the offences or without forwarding the complaint for investigation under Section 156(3) Cr.P.C. Dismissal of a complaint under Section 203 Cr.P.C can only be at the post cognizance stage. But there is a power in every Magistrate to reject the complaint even at the pre-cognizance stage if the complaint on the face of it does not make out the offence alleged in the complaint. In such a case, the law does not oblige the Magistrate to proceed to Section 200 Cr.P.C or the subsequent sections. In such a case, the Magistrate undoubtedly has the power to reject the complaint at the threshold. Although complaints are being dismissed by the Magistrates at the pre-cognizance stage, such dismissal is made without noticing the real distinction between a dismissal of the complaint under Section 203 Cr.P.C at the post cognizance stage and a rejection of O.P.(Crl) No.329/2016 8 the complaint under the pre-cognizance stage. Such dismissal at the pre-cognizance stage can only be treated as rejection of the complaint [See **Raju Puzhankara v. State of Kerala : 2008** **(2) KHC 318 : 2008 (2) KLT 467** ]. Therefore, when the complaint, on the fact of it, did not make out the offence alleged, the Special Court should have rejected the complaint instead of dismissing it. 12. Hence, the impugned order shall be treated as an order rejecting the complaint filed by the petitioner. 13. Consequently, the original petition is dismissed. However, it is made clear that the dismissal of this original petition shall not preclude the petitioner from preferring a complaint with adequate materials to substantiate his case and if any such complaint is filed, the Special Judge will do the needful in accordance with law. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(Crl) No.329/2016 9 ## **APPENDIX OF OP(CRL.) 329/2016** ## PETITIONER'S EXHIBITS: P1 COPY OF SALE DEED NO.1599 OF 2003 DTD.5.11.2003 IN FAVOUR OF 8TH RESPONDENT. P2 COPY OF THE REPLY LETTER NO.C4.456/13 DTD.18.1.2013. P2(A) COPY OF THANDAPER ACCOUNT. P3 COPY OF PETITION FILED BY THE PETITIONER BEFORE THE VIGILANCE ENQUIRY COMMISSIONER AS CRL.MP NO.44/2015. P4 COPY OF ORDER DTD.11.5.2016 IN CRL.MP NO.44/2015 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM. ## RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE