Sany Francis v. State of Kerala

**BA Nos.8380 & 8401/2019** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 /4TH AGRAHAYANA, 1941** ## **Bail Appl..No.8380 OF 2019** **CRIME NO.473/2019 OF CBCID, ERNAKULAM , Ernakulam** **PETITIONER/ACCUSED NO.1:** **SANY FRANCIS, AGED 55 YEARS S/O.K.C. FRANCIS, MANAGING DIRECTOR, M/S. HOLY FAITH BUILDERS AND DEVELOPERS PVT LTD, 34/2353, MAMANGALAM, KOCHI.** **BY ADVS. SRI.S.RAJEEV SRI.SANTHOSH MATHEW SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENT/STATE/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, (CRIME NO.473/2019/CBCU-II/EKM/R/2019 OF CRIME BRANCH, CENTRAL UNIT-II, ERNAKULAM).** ## **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 2011-2019, ALONG WITH BA NO.8401/2019 THE COURT ON 25-11-2019 PASSED THE FOLLOWING:** BA Nos. 8380/2019 & 8401/2019 2 ## **COMMON ORDER** Accused Nos. 1 and 3, in Crime No.473/2019/CBCUII/EKM/R/2019 of Crime Branch Central Unit-II, Ernakulam for offences punishable under sections 406,420 and 120B of IPC and section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, seek bail by preferring the above separate bail applications. 2. According to the prosecution, the first accused was the managing director of a construction company by name Holy Faith Builders and Developers Pvt. Ltd. The second accused was the Secretary of the erstwhile Maradu Panchayath. The third accused was the junior superintendent of the above Panchayath and the fourth accused was the clerk in charge of concerned section dealing with the matters regarding the building permit of that Panchayath. 3. The allegation of the prosecution was that, the petitioners along with the 4[th] accused, with the dishonest intention of obtaining wrongful pecuniary advantage, had entered into a criminal conspiracy to procure a building permit for construction of a 19 storied apartment complex proposed by the builder, in Survey Nos.194/7.197/8,194/10 and 194/16 of 92.585 cents of land in the erstwhile Maradu Panchayath. The land fell within the Coastal Regulation Zone III, as per the CRZ Notification dated 19/2/1991. The first accused submitted an application in the year 2006 **BA Nos.8380 & 8401/2019** 3 for building permit in relation to the apartment complex in the above property. According to the prosecution, the entire land fell within the Coastal Regulation Zone and a major part of it was wet land as per the basic tax register of the village. Pursuant to the criminal conspiracy entered into between the accused for obtaining the pecuniary advantage to the accused, the building permit application was accepted and the building permit was issued without considering the restrictions. On the strength of the illicit building permit, the first accused constructed the multi stored building and thereafter, the builder sold the flats to innocent buyers for exorbitant rate suppressing the fact that the building was constructed on land where construction was prohibited as per the CRZ notification and violating the provisions of the Kerala Land Utilisation Order 1967 and Kerala Building Rules. It was also alleged that the land was within an agricultural zone and as per the construction plan that came into effect on 1989, the land should not be utilised for construction of a building. It was further alleged that survey conducted later showed that the accused had encroached into 3.58 cents of puramboke. 4. In the meanwhile, a show cause notice dated 4/6/2007 was issued by the Panchayat pursuant to the direction issued by the Principal Secretary to Local Self Department, Government of Kerala. The stop memo was challenged by the builder in W.P.(C) No.23046/2007. The writ petition was allowed. This was challenged by **BA Nos.8380 & 8401/2019** 4 the Maradu Municipality in W.A.No.150/2013 and connected cases. The writ appeal was dismissed confirming the order of the learned Single Judge. Review petitions were filed by the Kerala State Coastal Zone Management Authority as R.P.No.913/2015 and connected cases which were dismissed by the Division Bench. This was challenged by the Coastal Zone Management Authority in SLP Nos. 4227/2016 and 4228/2016. The Hon'ble Supreme Court on the basis of report of a three member committee held that the present building along with few other buildings were constructed in total violation of the various statutory provisions and ordered the demolition of the buildings. It is reported that the demolition process is progressing. 4. In the meanwhile, the present crime was registered pursuant to a complaint alleging that without disclosing the violation and keeping the complainants and others in darkness, apartments were sold for exorbitant rate. It was alleged that the petitioners thereby committed various offences. 5. In the course of the investigation, petitioners were arrested along with the second accused on 15/10/2019. They are in custody since then. They sought bail before the learned Special Court, which dismissed the application. Hence, the present bail applications have been filed. 6. Heard the learned counsel for the petitioners and the learned Public Prosecutor, who opposed the application. **BA Nos.8380 & 8401/2019** 5 7. The contention of the learned counsel for the first accused was that, they believed that the apartment did not fall within the Coastal Regulatory Zone and hence there was no prohibition in making the construction. At that stage, the Panchayat did not have a case that CRZ was applicable to the building in question. It was contended that if there were statutory restrictions, they would not have ventured into a risk of construction of this nature involving crores of rupees. It was contended that permit was issued validly. Yet another limb of argument was that the building was constructed near a canal and canal was not covered by the CRZ restrictions. It was also contended that the map relied on by the authorities did specify exactly the area covered by CRZ restrictions . It was the subject matter of writ proceedings filed at the instance of a Hospital and at that time, the stand taken by the Panchayat was that it did fall within the area of the CRZ. Hence, even if there was any violation there was no culpable criminality involved in the action and none of the criminal offences attributed to the first accused will survive, it was contended. 8. Supplementing the above arguments, the learned counsel for the third accused further contended that he was not involved in granting of permit and was temporarily holding the charge of Secretary during a brief period. He had duly discharged the functions of the Secretary of the Panchayath. He was not a party to any criminal conspiracy. It was further contended that, in both cases **BA Nos.8380 & 8401/2019** 6 investigation has substantially progressed and their continued detention was not justified. 9. Opposing the application, learned Public Prosecutor contended that land fell within CRZ III. This fact was known to the accused. Steps initiated against the Lakeshore Hospital was within the knowledge of the petitioners herein and they had made the constructions with the knowledge that the land fell within the CRZ restrictions. It was also alleged that the third accused, pursuant to the direction issued by the Government had issued a notice under the Kerala Building Rules fully knowingly that notice was nonest and cannot survive in the eye of law. 10. Both the petitioners relied on the decision of the Division Bench of this Court in _**Citizens Interest Agency v. Lakaeshore Hospital & Research Centre Pvt. Ltd. (2003 (3) KLT 424)**_ wherein proceedings were initiated against a hospital on an allegation that they fell within the violation of the CRZ area in Maradu Panchayath. According to the petitioners, respondent therein had contended that with the available photographs relied on by the Coastal Zone Management Authority, it was impossible to decide whether the above building fell within the disputed area. It was informed by them that the actual status of the disputed construction can be ascertained only with the help of large scale cadastral map which has not been prepared for that purpose. **BA Nos.8380 & 8401/2019** 7 11. According to the learned counsel for the petitioners, this indicated that the question whether the disputed area fell within the Coastal Regulatory Zone was not settled at that point of time and hence no mala fides can be attributed to the petitioners herein. Limited contention of the petitioner was that in the nature of the existing situation at that point of time, they had no criminal intention. The contention that the area did not fall within the Coastal Regulatory Zone is not available to the petitioners herein, in the light of the authoritative pronouncement of the Supreme Court. 12. The allegation that the accused constructed a multi storied building violating all norms, Rules and Regulation which was an environmental hazard is serious. However, records indicate that the investigation has substantially progressed. The report of the investigating officer shows that the building permit , affidavit filed by the Panchayat Secretary, plan and drawing, file regarding the building permit, etc. were seized from the Maradu Municipality. Revenue records were seized from the Village Office Maradu and the land involved has been surveyed. Some important documents have been seized from the office of the first accused. Evidently, the main materials in relation to the entire case are documentary in nature and have been seized. However, the prosecution has a specific contention that notings of the third accused on file been destroyed and are not available. It could not be traced out and granting bail to the third **BA Nos.8380 & 8401/2019** 8 accused at this stage may hamper the investigation, it was argued. However, even after obtaining the police custody of the accused , the investigating agency could not trace it out. 13. It is also reported that 51 witnesses have been questioned. Only absconding accused was the 4[th] accused , who is reported to have surrendered .Prosecution has no case that the accused are likely to flee from justice, if released on bail. The third accused is not in service now. Hence, there is no chance of that petitioner tampering with the records, if any. The remand report of the petitioners dated 5/11/2019 was also produced. It indicates that the extension of remand was sought on the ground that investigation has to be completed and final report ought to be laid. No other material indicating that the investigation is still at a crucial stage is forthcoming. 14. Having evaluated the entire facts, I feel that further custody of the petitioners does not appear to be justified and they can be granted bail subject to the stringent conditions. 15. Accordingly, bail is granted to the petitioners subject to the following conditions: (i). The petitioners shall execute a bond for a sum of Rs.1,00,000 /- (Rupees One Lakh only) each with two sureties for the like sum each to the satisfaction of the jurisdictional Court. **BA Nos.8380 & 8401/2019** 9 ii). They shall surrender their passport before court below,within one week from the execution of the bond and if they are not in possession of the passport, file an affidavit to that effect. iii). They shall appear before the Investigating Officer as and when called for and co-operate with the investigation. iv). They shall not in any manner, directly or indirectly or through agents interfere in the course of investigation. (vi) They shall not threaten, coerce or intimidate the defacto complainant and witnesses. v). They shall not leave the State of Kerala till the final report is filed without intimation to the Investigation officer. The bail applications are allowed. Sd/- **SUNIL THOMAS** dpk **JUDGE**