Santy George v. State of Kerala and M. Nizarudeen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938** ## **Crl.MC.No. 1429 of 2014 ()** **--------------------------AGAINST THE ORDER IN CRL.MP.NO. 941/2013 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM -------------------** **PETITIONER/ACCUSED : ------------------------------------** **SANTY GEORGE AGED 53 YEARS, ADVOCATE, AMERICAN INSTITUTE BUILDING, VANCHIYOOR P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.RAJIT SRI.P.ANOOP (MULAVANA)** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT :** |**RESPONDENTS/STATE & DEFACTO COMPLAINANT :**|**RESPONDENTS/STATE & DEFACTO COMPLAINANT :**| |---|---| |**-----------------------------------------------------------------------------**|| |**1.**|**STATE OF KERALA**| ||**REP. BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2.**|**M.NIZARUDEEN,**| ||**ADDITIONAL GOVERNMENT PLEADER AND PUBLIC PROSECUTOR,**| ||**FAST TRACK COURT-II, THIRUVANANTHAPURAM-695 001.**| ||**R1 BY PUBLIC PROSECUTOR SMT. MADHUBEN**| ||**R2 BY ADVS. SRI.T.B.HOOD**| ||**SMT.M.ISHA**| ||**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD**| ||**ON 06-06-2016, THE COURT ON THE SAME DAY PASSED THE**| ||**FOLLOWING:**| **Mn** **...2/-** ## **Crl.MC.No. 1429 of 2014 ()** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES : ----------------------------------------------** |**ANNEXURE A.**|**TRUE COPY OF THE PETITION FILED BY THE 2ND**| |---|---| ||**RESPONDENT BEFORE THE ADDITIONAL SESSIONS JUDGE,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE B.**|**TRUE COPY OF THE ORDER DATED 01.08.2013 IN MP**| ||**NO.941/2013 OF THE ENQUIRY COMMISSION SPECIAL JUDGE,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE C.**|**TRUE COPY OF THE QUICK VERIFICATION REPORT**| ||**SUBMITTED BY THE INSPECTOR OF POLICE ATTACHED TO**| ||**THE VIGILANCE AND ANTI-CORRUPTION BUREAU, SOUTHERN**| ||**RANGE, THIRUVANANTHAPURAM.**| |**ANNEXURE D.**|**TRUE COPY OF THE STATEMENT OF THE WITNESS ANILDAS**| ||**RECORDED BY THE INSPECTOR IN JAIL DATED 04.09.2013.**| |**ANNEXURE E.**|**TRUE COPY OF THE REPORT DATED 11.10.2013 SUBMITTED BY**| ||**THE SUPERINTENDENT OF POLICE, VIGILANCE AND**| ||**ANTICORRUPTION BUREAU, SOUTHERN RANGE,**| ||**THIRUVANANTHAPURAM TO THE DIRECTOR OF VIGILANCE**| ||**AND ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM.**| |**ANNEXURE F.**|**TRUE COPY OF THE LETTER DATED 25.10.2013 ISSUED BY THE**| ||**DIRECTOR, VIGILANCE AND ANTI-CORRUPTION,**| ||**THIRUVANANTHAPURAM.**| |**ANNEXURE G.**|**TRUE COPY OF THE ORDER DATED 10.02.2014 IN MP**| ||**NO.941/2013 OF ENQUIRY COMMISSIONER AND SPECIAL**| ||**JUDGE, THIRUVANANTHAPURAM.**| |**RESPONDENT(S)'**|**ANNEXURES : NIL**| |**-----------------------------------------------------**|| ## **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ Crl.M.C. No. 1429 of 2014 ............................................................... Dated this the 6[th] day of June, 2016 ## **O R D E R** The petitioner is a practising Advocate at Thiruvananthapuram, who had appeared for the 3[rd] accused Anil Das @ _Jeerakam Ani_ in Sessions Case No.974 of 2006 before the Additional Sessions Court (Adhoc-II), Thiruvananthapuram. The _defacto complainant_ was the Prosecutor, who was appearing for the prosecution in that particular case. 2. The aforesaid Sessions Case culminated in conviction and sentence of the accused. When the court disbursed after imposing the sentence, the _defacto complainant_ was sitting and going through the judgment in the court hall. While so, the said accused, who was in the custody of the police personnel, and was waiting for the Crl. M.C. No. 1429 of 2014 -: 2 :- warrant, approached the _defacto complainant_ with the permission of the police personnel. The accused allegedly divulged an information to the _defacto complainant_ that he had parted with an amount of ₹25,000/-, as demanded by the defence counsel for handing over the same as bribe/illegal gratification to the _defacto complainant_ , for influencing him. The accused further told him that during the final hearing of the case only, he could realise that the amount was not handed over to the _defacto complainant_ . 3. Shocked by the revelation made by the accused, the _defacto complainant_ preferred Annexure-A complaint before the concerned Additional Sessions Court detailing all what had happened. The learned Additional Sessions Judge forwarded the complaint to the Sessions Court, from where, the same was forwarded to the court below. 4. The court below, on getting the complaint, heard the legal advisor of the court below and passed Annexure-B order, by ordering a preliminary inquiry into the matter under Crl. M.C. No. 1429 of 2014 -: 3 :- Section 156(3) Cr.P.C., thereby forwarding the complaint to the Director of Vigilance and Anti Corruption Bureau. The VACB conducted a quick verification and furnished Annexure-C report before the court below. In Annexure-C, the Inspector of Police, VACB, had found that there was no reason to disbelieve the complainant as well as the police officer on duty. At the same time, he has reported that the said accused namely, Anil Das @ _Jeerakam Ani_ had totally retracted from his versions allegedly made to the _defacto complainant_ . The investigating officer has concluded that when the allegations are levelled against an Advocate, appropriate action has to be taken by the Bar Council. 5. As per the provisions of the Vigilance Manual, the report was forwarded to the Superintendent, VACB. The Superintendent, VACB forwarded the report to the Director, VACB with Annexure-E report. Through Annexure-F, the Director, VACB has accepted Annexure-C and Annexure-E. 6. When the matter came up before the court below, Crl. M.C. No. 1429 of 2014 -: 4 :- the court below heard the complainant on the matter. After hearing the complainant and considering the contents of the quick verification reports, the court below has decided to direct the Director, VACB to register the First Information Report and to conduct investigation and to file Final Report in the matter expeditiously, through Annexure-G order. Annexure-G is under challenge. 7. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2[nd] respondent/complainant. 8. The learned counsel for the petitioner has argued that there are no materials for the registration of a First Information Report in the case and that the court below has passed Annexure-G order without considering that there is no substance to bring out an offence under Section 8 or 9 of the Prevention of Corruption Act. It has also been argued that especially when the accused had retracted from his versions, no purpose would be served in proceeding with Crl. M.C. No. 1429 of 2014 -: 5 :- the matter further. It has been further argued that when the so-called statement made by the accused has been retracted, all further evidence that can be collected in the matter are merely hearsay in nature and therefore, all further proceedings would be an abuse of the process of the court. 9. The learned counsel for the petitioner has further argued that the offences under Sections 8 and 9 of the P.C. Act cannot be attracted without an animus on the part of the petitioner either to bribe the complainant or to influence the complainant. Another argument has also been canvassed to the effect that unless the Public Servant is not arraigned as accused with the aid of Section 10 of the P.C. Act, a private person cannot be dragged into an offence under Section 8 or 9 of the P.C. Act. 10. _Per contra_ , the learned counsel for the 2[nd] respondent has pointed out that the present stage is too premature to consider the question as to whether the Crl. M.C. No. 1429 of 2014 -: 6 :- evidence that could be collected would be merely hearsay in nature. Further, according to him, when the complaint or a preliminary inquiry gives a clear indication of the commission of a cognizable offence, a crime has to be registered and an investigation has to be conducted in the matter. Regarding the intention on the part of the petitioner also, it is argued that those questions are alien to the present stage. 11. Section 8 of the P.C.Act deals with a situation wherein _any person is accepting, or obtaining or agreeing to accept or attempting to obtain from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing by corrupt or illegal means, any public servant_ ............” 12. Therefore, going by Section 8 of the P.C. Act, it can be seen that any person can be the accused of an offence under Section 8 of the P.C.Act in a case where such person has acted like the above, for himself or for any other Crl. M.C. No. 1429 of 2014 -: 7 :- person. The knowledge with regard to the person for whom such bribe was accepted or agreed to be accepted or attempted to be obtained, need not have the knowledge that some other person has accepted amounts by saying that it is for the purpose of inducing the said public servant by corrupt or illegal means. Even without the knowledge of the concerned public servant, it is possible for any other person to commit such an offence. 13. Similar is the case with the offence under Section 9 also. The offence under Section 9 comes into play when such gratification is accepted by any person or attempted to be accepted by any person as a motive or reward for inducing a public servant through personal influence. In such a case also, even without the knowledge and consent of such a public servant, any person can commit such an offence. Of course, as rightly pointed out by the learned counsel for the petitioner, in a case wherein a public servant is abetting the offence contemplated under Section 8 or 9 of Crl. M.C. No. 1429 of 2014 -: 8 :- the P.C. Act, such public servant can be dragged into with the aid of Section 10, whether the act abetted has been committed or not. Section 10 makes it very clear that only when the public servant abets the commission of the offence under Section 8 or 9 of the P.C. Act, he could be dragged under Section 10 even when the act abetted has been committed or not. Matters being so, in a case wherein an offence punishable under Section 8 or 9 is alleged, the public servant need not necessarily be a co-accused. He could be made a co-accused only with the aid of Sections 8 or 9 the Act when the illegal gratification was obtained or attempted to be obtained with his knowledge or consent, or with the aid of section 10 of the Act when he abets the commission of an offence under Section 8 or 9 of the P.C.Act. 14. The next question to be considered is whether a private person can be proceeded against for an offence under the P.C.Act without the junction of a public servant as Crl. M.C. No. 1429 of 2014 -: 9 :- co-accused. The said question was dealt with by the Apex Court in _**State through C.B.I. New Delhi v. Jitender Kumar Singh** [2014(1) KLT 666(SC)]_ . In paragraphs 27, 28 and 29 it was held: _“27. Thus, an offence under Sections 8, 9 or 12 can be committed by any person, who need not necessarily be a public servant. Such an offence can, therefore, be committed by a public servant or by a private person or by a combination of the two. It is thus clear that an offence under the P.C. Act can be committed by either a public servant or a private person or a combination of both and in view of the mandate of Section 4(1) of the P.C. Act, read with Section 3(1) thereof, such offences can be tried only by a Special Judge._ _For example:_ _*A private person offering a bribe to a public servant commits an offence under Section 12 of Act. This offence can be_ Crl. M.C. No. 1429 of 2014 -: 10 :- _tried only by the Special Judge, notwithstanding the fact that only a private person is the accused in the case and that there is no public servant named as an accused in that case._ _* A private person can be the only accused person in an offence under Section 8 or Section 9 of the said Act. And it is not necessary that a public servant should also be specifically named as an accused in the same case. Notwithstanding the fact that a private person is the only accused in an offence under Section 8 or Section 9, it can be tried only by a Special Judge._ _28. Thus, the scheme of the P.C. Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the P.C. Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the P.C. Act, a public servant must necessarily be an accused._ Crl. M.C. No. 1429 of 2014 -: 11 :- _In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for P.C. as well as non-P.C. offences, depending upon the facts of the case._ _29. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the P.C. Act.”_ 15. When the said question has been clearly concluded, and the Apex Court has held that in cases relating to the offences under Section 8 or Section 9 or Section 12 of the P.C.Act, any private person can be independently proceeded against, the said question is not open for further discussion or deliberation. 16. As per Section 8 or Section 9 of the P.C. Act, it is true that there must be animus on the part of the concerned Crl. M.C. No. 1429 of 2014 -: 12 :- accused at the time of receiving or attempting to obtain the gratification to induce the public servant by corrupt or illegal means that he was doing so for the purpose of inducing the public servant by corrupt or illegal means. Similarly, if he was accepting gratification for the purpose of inducing a public servant through personal influence also there must be animus on his part that he was accepting that gratification for such a purpose. Animus required is only limited to that. 17. The learned counsel for the petitioner has canvassed an argument that such animus can be there, only when such a public servant is a person who can be influenced. The said argument does not seem to be sound. The animus required is something locks up in the mind of the concerned person, who accepts gratification by styling it as for himself or for the public servant within the meaning of Sections 8 or 9. He was accepting that gratification for such a purpose is the only animus required. If such an intention is there in the mind of that person who is accepting Crl. M.C. No. 1429 of 2014 -: 13 :- ## gratification, necessarily, an offence can be made out. 18. In _**Devan alias Vasudevan v. State** [1988 Crl.L.J._ _1005]_ , the Kerala High Court held that: _“The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant by corrupt or illegal means. It is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is not even necessary that the recipient of the gratification should, in fact, have attempted to induce the public servant. The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence. But it is necessary that the accused should have had the animus or intent, at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means._ Crl. M.C. No. 1429 of 2014 -: 14 :- _Such intention can be gathered or inferred from evidence in each case .”_ 19. Another argument has been forwarded by the learned counsel for the petitioner that in case gratification was obtained by the petitioner styling it as one for handing over to the 2[nd] respondent, the 2[nd] respondent should also be a co-accused as a necessary abettor. This Court is of the view that the 2[nd] respondent in such a context becomes only a victim of an offence. Without his knowledge and consent his name and official position has been made use of by a person by pretending that he had influence over the public servant. In such a case, no doubt the 2[nd] respondent can only be in the position of a victim of an offence and nothing more. Merely because of the fact that he has come forward to complain that such a situation was created by the petitioner, it cannot be said that he is an accomplice also. Of course, the accused in the criminal case, who happened to part with an amount, could be treated as an accomplice. Crl. M.C. No. 1429 of 2014 -: 15 :- This position is made clear in _**Chonampara Chellappan v. State of Kerala** [AIR 1979 SC 1761]_ . The accused in the murder case, who had allegedly parted with the amount to the petitioner can be an accomplice, and in such case, he gets protection under the cover of Section 24 of the P.C. Act. Further, the rule of prudence also requires that the evidence of an accomplice needs independent corroboration. 20. The learned counsel for the petitioner has pointed out that as per the dictum laid down by the Apex Court in _**Lalita Kumari v. Government of Uttar Pradesh** [(2014) 2 SCC 1],_ even if a complaint discloses a cognizable offence, in corruption cases, the same has to be verified through a preliminary inquiry and only then, the crime can be registered. Here, in this particular case, a quick verification was conducted. The same was appreciated by the superintendent of VACB, and both of them have concluded that there were no reasons to disbelieve the versions of the 2[nd] respondent herein and the police personnel who were Crl. M.C. No. 1429 of 2014 -: 16 :- present along with the concerned accused. Even then they have chosen to give an advice that the matter had to be dealt with by the Bar Council, since the petitioner is an Advocate by profession. On getting the said report from the concerned Inspector, and Superintendent VACB, the court below has chosen to discard their recommendations and to direct the registration of a crime and to have the matter investigated upon. 21. Going by paragraph 120.5 in _**Lalita Kumari** (supra),_ the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received; but only to ascertain whether the information reveals any cognizable offence. It seems that in the quick verification, the concerned officers were dealing with a situation whether there were adequate materials to invite a conviction, and not a mere prosecution. The same is not called for at all. What is required is whether such a quick verification or information reveals the commission of a cognizable offence Crl. M.C. No. 1429 of 2014 -: 17 :- or not. In case a cognizable offence has been revealed in a corruption case through quick verification, there is every reason to register a crime in the matter. 22. The learned counsel for the petitioner has also canvassed an argument that when the petitioner is an Advocate by profession, Bar Council of India or the State Bar Council have powers to deal with such situations, and normally in such situations, their intervention has to be sought for. When an offence under Section 8 or 9 of the P.C. Act is alleged, the aforesaid enabling provisions contained in the Advocates Act will not supersede the powers of the court below as per the P.C. Act. 23. The learned counsel for the 2[nd] respondent has invited the attention of this Court to the decision of the Apex Court in _**State of Orissa v. Saroj Kumar Sahoo** [2006(1) KLT 366(SC)]_ wherein it was held: _“When exercising jurisdiction under S.482 of the Cr.P.C., the High Court would not_ Crl. M.C. No. 1429 of 2014 -: 18 :- _ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under S.482 of the Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to_ Crl. M.C. No. 1429 of 2014 -: 19 :- _secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 = 1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:_ _“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused._ _(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Cr.P.C. except under an order of a Magistrate within the purview of S.155(2) of the Cr.P.C._ Crl. M.C. No. 1429 of 2014 -: 20 :- _(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused._ _(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155 (2) of the Cr.P.C._ _(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused._ _(6) Where there is an express legal bar engrafted in any of the provisions of the Cr.P.C. or the Act concerned (under which a criminal proceeding is instituted)_ Crl. M.C. No. 1429 of 2014 -: 21 :- _to the institution and continuance of the proceedings and/or where there is a specific provision in the Cr.P.C. or Act concerned, providing efficacious redress for the grievance of the aggrieved party._ _(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”_ _11. As noted above, the powers possessed by the High Court under S.482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision_ Crl. M.C. No. 1429 of 2014 -: 22 :- _in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.”_ 24. The learned counsel for the petitioner has invited the attention of this Court to the decision rendered by the Delhi High Court in Crl.A.No.603/2010. It was a case wherein some touts had accepted gratification by styling it as one for handing over it to the concerned officials of the Transport Department for issuing licence, learner's licence etc. In that particular case, it was held: _“Mere demanding and accepting money for the issue of driving license, by a_ Crl. M.C. No. 1429 of 2014 -: 23 :- _person who himself is not a public servant, without claiming that the bribe money would be shared with a public servant or that he would shomehow prevail upon the concerned public servant to issue a driving license to the money giver does not amount to an offence under Section 8 of the Act nor can such a person be said to be a tout.”_ I respectfully disagree with the aforesaid proposition of law enunciated by the learned Single Judge of the Delhi High Court. In order to invite an offence under Section 8 or 9 of the P.C. Act, the gratification need not be obtained or shared by the public servant concerned. Further, in order to invite the said offences, it is not required that the prosecution should establish that the said person accepting gratification has somehow prevailed upon the concerned public servant. 25. In the meanwhile, a grave situation has been pointed out by the 2[nd] respondent herein. He has preferred the complaint for a noble cause. Even though his integrity Crl. M.C. No. 1429 of 2014 -: 24 :- was least doubted by the concerned accused, he preferred the complaint in order to bring out such malpractices going on in the system. Such practices have to be weeded out, for which a prosecution is required. The question whether the petitioner has animus in his mind is something which locks up in his own mind. It is for him to establish that he had no culpable state of mind at the time when the amount was allegedly accepted, in case such acceptance was there. 26. From all these discussions, this Court is of the view that the view taken by the court below in Annexure G order does not call for any interference at all. Therefore, this Crl.M.C. is devoid of merits and it is only to be dismissed, and I do so. In the result, this Crl.M.C. is dismissed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/dsv/- // true copy // P.S. to Judge.