Rajesh R. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943 CRL.MC NO. 3365 OF 2021** **TO QUASH THE F.I.R AND ALL FURTHER PROCEEDINGS IN F.I.R.NO.VC.2/2017/IDK DATED 09-01-2017 REGISTERED BY VIGILANCE & ANTI CORRUPTION BUREAU, IDUKKI UNIT FILED BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGES COURT, MUVATTUPUZHA** ## **PETITIONER/ACCUSED NO.2:** RAJESH R AGED 50 YEARS S/O. RAGHAVAN, OLEDATH HOUSE, MANAKKAD P.O, THODUPUZHA IDUKKI DISTRICT. BY ADVS. IEANS.C.CHAMAKKALA BINU B.SAMUEL ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031 SRI A RAJESH -SPL PP VACB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON 09.09.2021 DELIVERED THE FOLLOWING: Crl.M.C.No.3365/2021 2 ## **R.NARAYANA PISHARADI, J ************************ Crl.M.C.No.3365 of 2021 ------------------------------------Dated this the 9[th] day of September 2021 ------------------------------------------- ## **O R D E R** The petitioner is the second accused in the case registered as V.C.No.02/2017/IDK by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Idukki Unit. 2. The offences alleged against the accused in the above case are punishable under Section 13(1)(c) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 409 and 120B of the Indian Penal Code. 3. As per Annexure-A1 F.I.R, there are eight accused in the case. Accused 1 to 5 are the former Village Officers of Mannamkandam Village. The 6[th] accused is the former Taluk Surveyor of Devikulam Taluk. Accused 7 and 8 are private persons. Crl.M.C.No.3365/2021 3 ## 4. The summary of the allegations against the accused, as stated in Annexure-A1 F.I.R, reads as follows: _“The case in brief is that A1 to A5 while working as Village officers, Mannamkandam during the period from 2008 to 2015 and A6 while working as Taluk Surveyer, Devikulam, and as such being public servants entrusted with Govt.property, by abusing their official position, entered into criminal conspiracy with A7 and A8 and in furtherance of the said conspiracy, dishonestly and fraudulently aided A7 and A8 to function a Quarry in Govt. land in survey 219/3 of Mannamkandam Village by giving certificates to the effect that quarrying is carried out in survey 219/7 owned by A7, thereby causing huge loss to the Govt. and undue monetary gain to A7 and A8 and hence the accused A1 to A8 committed the offence.”_ 5. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') by the second accused for quashing Annexure-A1 F.I.R and all proceedings against him based on it. 6. Heard learned counsel for the petitioner and the Crl.M.C.No.3365/2021 4 ## learned Public Prosecutor. 7. The petitioner was the Village Officer of Mannamkandam Village during the period from 15.05.2008 to 27.07.2009. There is no dispute with regard to the fact that he was a public servant as defined under Section 2(c) of the Act. 8. The investigating officer has filed a statement which mentions the role of the petitioner in the offences allegedly committed. It is mentioned in this statement as follows: _“During the investigation of the case, it is revealed that the petitioner / Accused No.2 had given the possession certificate No.7150/08 and location sketch No.7151/08 to Accused No.7 on 06/09/2008 to produce before the Mining and Geology Office, Thodupuzha. It is marked in the location sketch that the mining is carrying out and the rock area situated in survey no.219/7 (old survey no.351/2) which is the land owned by Accused No.7. The original of these documents were seized from Mining and Geology office, Thodupuzha.”_ It is also mentioned in the above statement of the investigating ## officer as follows: _“The petitioner has given this wrong location sketch_ Crl.M.C.No.3365/2021 5 _in order to help the Accused No.7, the land owner and Accused No.8, the quarry permit holder respectively. The petitioner / Accused No.2 is well aware that the rock area is in survey No.219/3 and there is no rock in survey No.219/7. It is also wrongly marked in the survey plan given by former Devikulam Taluk Surveyor on 13.01.2012 that the rock area comes under survey no.219/7 and he is also added in the accused list as Accused No.6. Quarry permit was given by Mining and Geology Department mainly on the basis of the possession certificate and location sketch given by Village Officer.”_ It is further mentioned in the above statement as follows: _“It is clear from the investigation conducted so far that the Accused No.2 abused his official position as public servant, entered into criminal conspiracy with Accused No.7 and 8 and in furtherance of the said conspiracy, dishonestly and fraudulently helped Accused No.7 and 8 to function a Quarry in government land in survey 219/3 of Mannamkandam village by giving false sketch to the effect that quarrying is carried out in Survey 219/7 owned by Accused No.7, thereby causing huge loss to the government and undue monetary gain to Accused No.7 and 8.”_ Crl.M.C.No.3365/2021 6 9. There is no allegation against the petitioner that he committed misappropriation of money or any other property or that he converted for his own use, money or any other property which was entrusted with him or under his control as a public servant. In the absence of such allegation, the offences under Section 13(1)(c) read with 13(2) of the Act and under Section 409 of the Indian Penal Code are not attracted against him. 10. Learned Public Prosecutor submitted that the allegations against the petitioner in the FIR and the materials so far collected by the investigating officer during the investigation would clearly reveal that the petitioner has committed an offence punishable under Section 13(1)(d) read with 13(2) of the Act. 11. Learned counsel for the petitioner contended that the allegations in the FIR will not attract an offence under Section 13(1)(d) read with 13(2) of the Act also against the petitioner. Learned counsel for the petitioner further contended that the survey map or location sketch attested by the petitioner was actually prepared by the Village Assistant. Learned counsel for Crl.M.C.No.3365/2021 7 the petitioner would further contend that quarrying operations had been going on in the land concerned for so many years and therefore, the petitioner had no reason to suspect any foul play while attesting the survey map. Learned counsel for the petitioner would also contend that the petitioner had no legal obligation to conduct spot inspection and to ascertain whether it was actually a rocky area before he attested the survey map to be issued for the purpose of obtaining quarry permit. 12. The Kerala Minor Minerals Concession Rules, 1967 (for short 'the Rules') was the law applicable at the relevant time with regard to the issuing of quarry permits. Rule 5A was introduced in the aforesaid Rules as per the amendment dated 02.01.2008. Rule 5A stated that, in the case of application for quarrying permit under Consolidated Royalty Payment System, the application shall be made in Form-T in duplicate along with Possession and Enjoyment Certificate and survey map of the area duly attested by an officer not below the rank of a Village Officer. Crl.M.C.No.3365/2021 8 13. In the instant case, the petitioner was the Village Officer who attested and issued the location sketch to Accused No.7 for renewal of the quarry permit in the year 2008. 14. The location sketch attested by the petitioner and issued to Accused No.7 is said to be the survey map which is mentioned in Rule 5A of the Rules. 15. Section 220(1) of the Land Revenue Manual (Kerala) provides that, possession certificate can be issued after verifying the records and after conducting inspection of the land concerned. Section 222 of the Manual deals with issuing of location certificate and Section 223 deals with issuing location map. 16. The location sketch attested and issued by the petitioner in this case is not merely a location map as contemplated under Section 223 of the Land Revenue Manual. 17. This Court has perused the copy of the location sketch attested by the petitioner and issued to Accused No.7. In this sketch, an area is specifically marked and shown as the rocky Crl.M.C.No.3365/2021 9 portion of the land where quarrying operation was intended to be conducted. 18. According to the learned counsel for the petitioner, the petitioner had no obligation to conduct local inspection or spot inspection before attesting the survey map which is referred to in Rule 5A of the Rules. If the petitioner had merely attested and issued a survey map or location map, this contention could have perhaps been accepted. However, what was attested and issued by the petitioner was not merely a survey map but a location sketch which specifically showed the rocky area where quarrying operation was intended to be conducted. 19. According to the learned counsel for the petitioner, the petitioner had no obligation to specifically show any rocky area in the survey map to be attested and issued under Rule 5A of the Rules. Learned counsel for the petitioner has invited the attention of this Court to Rule 5(2) of the Rules which stated that, every application for a quarry permit shall be accompanied by an attested copy of the survey map of the area by an officer not Crl.M.C.No.3365/2021 10 below the rank of a Tahsildar or Deputy Tahsildar (Head Quarters) in which the area shall be coloured in red. It is pointed out that there is no such stipulation with regard to the survey map to be issued under Rule 5A that the area shall be shown in red colour. If that be so, it is for the petitioner to explain why he attested a location sketch in which the rocky area was specifically marked. 20. In the location sketch attested and issued by the petitioner, the rocky area is marked and shown in the land comprised in R.S.No.219/7. This fact assumes significance in the context of the allegation by the prosecution that actually there was no rocky area in R.S.No.219/7 and that the quarrying permit was obtained in respect of the land comprised in R.S.No.219/7 by using the location sketch issued by the petitioner and the permit was misused for conducting quarrying operation in the land comprised in R.S.No.219/3 which is Government land. 21. _Prima facie_ , the very fact that rocky area was specifically marked and shown in the location sketch relating to the land comprised in R.S.No.219/7, which was attested and Crl.M.C.No.3365/2021 11 issued by the petitioner, indicates that there was dishonest intention on his part in attesting and issuing such a document for the purpose of obtaining quarrying permit. 22. Learned counsel for the petitioner contended that the petitioner had only attested the survey map and that it was not prepared by him but by the Village Assistant. 23. When a person signs on a document he or she is expected to make some enquiry before signing it (See **Soma Chakravarty v. State : AIR 2007 SC 2149** ). 24. Learned counsel for the petitioner contended that the petitioner had not obtained any valuable thing or pecuniary advantage in the transaction by abusing or misusing his official position. 25. Section 13(1)(d) of the Act (before amendment) provided that, a public servant is said to commit the offence of 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 Crl.M.C.No.3365/2021 12 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. 26. A perusal of Section 13(1)(d) of the Act makes it clear that, if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under that provision. The three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) of the Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. Under Section 13(1)(d)(ii) of the Act, "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person, would amount to criminal misconduct. Under Section 13(1)(d)(iii) of the Act, if a public servant, while he holds office, obtains for any person any valuable thing or pecuniary advantage without any public interest, it would amount to criminal misconduct. Crl.M.C.No.3365/2021 13 27. In order to attract the offence under Section 13(1)(d) of the Act, it is not necessary that the accused public servant himself should have obtained any valuable thing or pecuniary advantage. It is sufficient that, by abusing his official position, the public servant had allowed any other person to obtain valuable thing or pecuniary advantage. 28. Learned counsel for the petitioner contended that the Geologist concerned, before issuing a quarrying permit, had the legal obligation to conduct spot inspection and to ascertain whether the area in which quarrying operation is intended to be conducted is actually a rocky area. Learned counsel would contend that, none of the Geologists during the past several years, who had issued quarrying permits in respect of the same land, have been made an accused in the case. 29. The above contention raised by the learned counsel for the petitioner is based on the doctrine of parity. However, such a contention cannot be entertained at this stage. The case is only at the stage of investigation. When the final report is filed by the Crl.M.C.No.3365/2021 14 investigating officer, if all persons who have committed the offences are not arrayed as accused, then, the petitioner may be able to advance such a contention. 30. When the allegations in the FIR do not disclose the offences mentioned therein but some other cognizable offence, the FIR cannot be quashed in part. Instead of quashing the FIR at such a preliminary stage, the Court should direct the investigating officer to make proper investigation and to file final report on the basis of the materials collected in the investigation (See **Rafiq Ahmedbhai Paliwala v. State of Gujarat : AIR 2019 SC 1537** ). 31. In order to examine as to whether the factual contents of the FIR disclose any _prima facie_ cognizable offences or not, the High Court cannot act like an investigating agency and nor can it exercise the powers like an appellate court. Once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth Crl.M.C.No.3365/2021 15 the crime in accordance with the procedure prescribed in the Code (See **Dineshbahai Chandubhai Patel v. State of Gujarat : AIR 2018 SC 314** ). 32. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, when the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and it will generally allow the investigation into the offence to be completed for collecting materials for proving the offence. When the F.I.R., prima facie, discloses the commission of any cognizable offence, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. Interference with the investigation by invoking the power under Section 482 of the Code can be done only in the rarest of rare cases where the court is satisfied that the first information report does not disclose commission of any Crl.M.C.No.3365/2021 16 cognizable offence. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. When an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence and for bringing the offender to book (See **State of West Bengal v. Swapan Kumar Guha : AIR 1982 SC 949** ). 33. In the present case, the allegations in the FIR and the materials collected by the investigating officer during the investigation, _prima facie_ , reveal commission of the offence under Section 13(1)(d) read with 13(2) of the Act and also under Section 120B of the IPC against the petitioner. In such circumstances, the prayer for quashing the FIR cannot be allowed. 34. Consequently, the petition is dismissed. The investigating officer shall conduct proper investigation into the actual offences allegedly committed by the persons involved in the transaction. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.3365/2021 17 ## **APPENDIX OF CRL.MC 3365/2021** ## PETITIONER'S ANNEXURES Annexure A1 CERTIFIED COPY OF THE F.I.R NO VC.02/2017/IDK DATED 09-01-2017. Annexure A2 NOTICE ISSUED BY THE DISTRICT MINING AND GEOLOGY DEPARTMENT TO ACCUSED NO. 8 DATED 03-08-2012 Annexure A3 STOP MEMO ISSUED TO ACCUSED NO. 8 DATED 24-05-2014 Annexure A4 THE QUARRYING PERMIT ISSUED BY THE GEOLOGIST DATED 12-06-1996 Annexure A5 COPY OF THE SURVEY MAP PREPARED BY THE TALUK SURVEYOR MAINTAINED AT THE VILALGE OFFICE ## RESPONDENT'S ANNEXURES: NIL TRUE COPY PS TO JUDGE