State of Kerala (represented by Central Bureau of Investigation) v. Jomon Puthenpurackal and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939 Crl.MC.No. 8719 of 2016 () --------------------------- CRMP 600/2016 of COURT OF ENQUIRY COMMNR. & SPL. JUDGE, EKM AT MUVATTUPUZHA ## PETITIONER(S)/RESPONDENT : ---------------------------------------- STATE REP. BY CENTRAL BUREAU OF INVESTIGATION SUPERINTENDENT OF POLICE, ACB, CBI COMPLEX, KALOOR PO, KATHRIKADAVU 682017 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. ## RESPONDENT(S)/RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY HOME SECRETARY, THIRUVANANTHAPURAM, GOVT. SECRETARIAT, TVPM 695001 2. THE SUPDT. OF POLICE, SPL. CELL, VACB, ERNAKULAM 682031 3. DISTRICT COLLECTOR, COLLECTORATE OFFICE, ERNAKULAM 682030 4. CHIEF ENGINEER, PWD, BUILDING SECTION, MUSEUM, THIRUVANANTHAPURAM 695001 5. EXECUTIVE ENGINEER, PWD BUILDING SECTION, EDAPPALLY, ERNAKULAM 682025 6. JOMON PUTHENPURACKAL, S/O.KURIAKOSE, MANUSHYAVAKASAPRAVARTHAKAN, PUTHENPURACKAL HOUSE, NEENDOOR PO, KOTTAYAM 686001 R6 BY ADV. SRI.M.R.SUDHEENDRAN SPL. PUBLIC PROSECUTOR VACB, SHRI A RAJESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13-122017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 8719 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ---------------------------------ANNEXURE A1 CERTIFIED COPY OF ORDER DT. OCTOBER 20, 2016 OF THE LD. ENQUIRY COMMISSION AND SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA ANNEXURE 2 COPY OF FILLED OFFICIAL PROPORMA ALONGWITH NOTIFICATION U/S. 6 OD DSPE ACT 1946 BY GOVERNMENT OF KERALA ANNEXURE 2(a) COPY OF FILLED OFFICIAL PROFORMA ALONG WITH NOTIFICATION U/S. O6 OF DSPE ACT 1946 BY GOVERNMENT OF KERALA ANNEXURE 2(b) COPY OF FILLED OFFICIAL PROFORMA ALONG WITH NOTIFICATION UNDER THE DSPE ACT 1946 BY GOVERNMENT OF KERALA ANNEXURE 3 COPY OF LETTER C NO. 4363/B5/2008 DTD. 20.08.2008 OF COMMISSIONER OF POLICE VIJAYAWADA ANNEXURE 3(a) A COPY OF LETTER NO. ADDL. CP. L& O/CBI 2013 DTD. 01.10.2013 OF COMMISSIONER OF POLICE BANGALORE CITY ANNEXURE 3(b) A COPY OF LETTER NO. 71123/POL.XV/2011-10 DTD. 27.01.2012 OF PRINCIPAL SECRETARY TO GOVT. OF TAMIL NADU ANNEXURE A 4 A COPYOF LETTER DT. FEBRUARY 16, 1999 OF THE DISTRICT COLLECTOR, ERNAKULAM AT THE BEHEST OF THE STATE GOVERNMENT OF KERALA, ALLOTTING SUCH TWO SUBJECT ROOMS TO CBI ANNEXURE A5 THE LIST OF 44 CASES WHEREI N THE SAME (SUBJECT) TWO ROOMS PROVIDED ON A RENT FREE BASIS BY THE STATE GOVERNMENT OF KERALA TO CBI AND WHICH WAS OFFICIALLY USED BY CBI OFICERS BELONGING TO THE SPECIAL CRIMES BRANCH, CENTRAL BUREAU OF INVESTIGATION CHENNAI TO SERVE AS A MAKE SHIFT CAMP OFFICE DURING THE REGULAR COURSE OF SUCH WORK UPTO OCTOBER 18, 2007 ANNEXURE A6 COPY OF LETTER DT. MARCH 11, 2013 OF THE COLLECTOR, ERNAKULAM TO CBI ANNEXURE A7 COPY OF LETTER DT. APRIL 4 2013 OF DISTT. COLLECTOR ERNAKULAM ANNEXURE A7(a) COPY OF LETTER DTD. AUGUST 13, 2013 OF DISTT. COLLECTOR ERNAKULAM ANNEXURE A8 COPY OF LETTER DT. AUGUST 5, 2016 OF JOINT DIRECTOR CBI CHENNAI ZONE Crl.MC.No. 8719 of 2016 () --------------------------- ANNEXURE A9 COPY OF LETTER DT. JULY 3 2016 OF SPECIAL CRIME BRANCH CENTRAL BUREAU OF INVESTIGATION CHENNAI TAMIL NADU ANNEXURE A9 A COPY OF LETTER DT. JULY 26 2016 OF THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KERALA ANNEXURE A10 COPY OF LETTER DT. JULY 29, 2016 OF DISTRICT COLLECTOR, ERNAKULAM ANNEXURE A10 A COPY OF LETTER DT. AUGUST 26, OF SUPDT. OF POLICE SPECIAL CRIMES BRANCH CENTRAL BUREAU OF INVESTIGATION CHENNAI ANNEXURE A11 THE LETTER DT. SEPTEMBER 8, 2016 OF THE HEAD OFICE OF THE CENTRAL BUREAU OF INVESTIGATION NEW DELHI ANNEXURE A13 COPY OF LETTER DT. SEPTEMBER 1, 2016 OF THE SUPERINTEDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU, KERALA ANNEXURE A13 A COPY OF LETTER DT. SEPTEMBER 14, 2016 OF SUPTD. OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, KERALA RESPONDENT(S)' EXHIBITS ----------------------- ANNEXURE R6(a) A TRUE COPY OF THE COMPLAINT FILED BY THE 6TH RESPONDENT BEFORE THE SPECIAL JUDGE. ANNEXURE R6(b) A TRUE COPY OF THE ORDER DATED 19.7.2016 OF THE SPECIAL JUDGE. ANNEXURE R6(c) A TRUE COPY OF THE letter dated 5.8.2016 of the 2[nd] RESPONDENT ANNEXURE R6(d) A TRUE COPY OF THE QUICK VERIFICATION REPORT. ANNEXURE R6(e) A TRUE COPY OF THE CMP NO.1700/2016 DT.4.10.2016. ANNEXURE R6(f) A TRUE COPY OF THE ORDER DATED 20.10.2016 ANNEXURE R6(g) A TRUE COPY OF THE FIR DT.25.10.2016 ANNEXURE R6(h) A TRUE COPY OF THE RTI REPLY DT.22.12.2016 ISSUED BY THE HOME DEPARTMENT. // True Copy // PA to Judge ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C No.8719 of 2016 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of December 2017 ## O R D E R The 6[th] respondent claims to be a Human Rights Activist. He filed C.M.P.No.600 of 2016 before the court of the Enquiry Commissioner & Special Judge (Vigilance), Muvattupuzha alleging offences under Sections 13(1)(d) of the Prevention of Corruption Act (for short 'PC Act') and Sections 406 and 409 of Indian Penal Code (for short 'the I.P.C.') against the petitioner and respondent Nos.3 to 5. 2. The allegations in the complaint can be briefly stated as follows:- The Nos.4 and 5 herein were respondent entrusted with the affairs of PWD Rest House at Crl.M.C.8719/2016 -: 2 :- Ernakulam. Room Nos.18 and 19 in the said PWD Rest House were allotted for the use of CBI from 16.2.1999 to 18.10.2007. In this regard, an amount of Rs.9,49,500/- was due to the State Government. However, the respondent Nos.3 to 5 herein did not collect the said amount from the officers of CBI. Even though the Superintendent of Police, CBI, Ernakulam was responsible for the due payment of the said amount to respondent Nos.4 and 5, he did not make the payment. 3. The above complaint was forwarded by the learned Special Judge to the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Special Cell, Ernakulam for quick verification and report. Accordingly, the Quick Verification Report was filed before the court. Meanwhile, the 6[th] respondent herein, who was the complainant before the court below, filed C.M.P. No.1700 Crl.M.C.8719/2016 -: 3 :- of 2016 alleging that the CBI officers had mis-used the situation and occupied rooms at various Rest Houses in the State without any order for rent-free accommodation. The court below, on receipt of the Quick Verification Report, directed the 2[nd] respondent herein to register a case against the Superintendent of Police, CBI, Ernakulam and respondent Nos.3 to 5 herein for the offences under Sections 406 and 409 I.P.C. and Sections 13(1)(d) of the P.C. Act as per Annexure-A1 order. The court below further directed in Annexure-A1 order that the facts stated in C.M.P. No.1700 of 2016 must also be taken within the of the case purview present during investigation. Accordingly, Crime No.VC.20/2016/SCE was registered against the Superintendent of Police, CBI, Ernakulam and respondent Nos.3 to 5 herein for the offences punishable under Sections 406 and 409 I.P.C. and Section 13(1)(d) Crl.M.C.8719/2016 -: 4 :- read with Section 13(2) of the P..C. Act. 4. This Crl.M.C. has been filed inter-alia praying for quashing Annexure-A1 order of the learned Special Judge directing the 2[nd] respondent herein to register the crime and the consequent registration of the Crime and the further proceedings in the said crime. 5. Heard the learned retainer counsel for the petitioner, the learned counsel for the 6[th] respondent and the learned Special Public Prosecutor. 6. It is not disputed that room Nos.18 and 19 in the P.W.D. Rest house, Ernakulam were in occupation of CBI from 16.2.1999 to 18.10.2007. The petitioner would contend that the State Government provided rent-free accommodation of the above said two rooms in the PWD Rest House, Ernakulam for the official use of the CBI. The said rooms were used by the CBI as its camp office to Crl.M.C.8719/2016 -: 5 :- enable the CBI team members from the Special Crime Branch, CBI Chennai, to camp there in connection with the regular discharge of their official duties in connection with the effective investigation and consequent court-related proceedings in respect of 44 cases entrusted with the CBI by this High Court and the Government of Kerala during the period from 16.2.1999 to 18.10.2007. 7. The 6[th] respondent disputed that the said rooms were allotted to CBI on rent-free accommodation. 8. At the outset, it is necessary to ascertain as to whether any offence is attracted even on assuming that the accommodation was not a rent-free accommodation. In order to attract the offence under Sections 406 I.P.C. or 409 I.P.C., there must be criminal breach of trust, as provided under Section 405 I.P.C. In this case, there is no allegation that Room Nos.18 and 19 in the PWD Rest Crl.M.C.8719/2016 -: 6 :- house, Ernakulam were misused by the petitioner or respondent Nos.3 to 5. There is also no allegation that the said rooms were permitted to be occupied by any person other than the CBI officers during the said period. Therefore, even though there was entrustment of the above said rooms with the petitioner, there was not even an allegation against the accused constituting the ingredients of criminal breach of trust as defined under Section 405 I.P.C. Annexure-A8 would make it clear that the petitioner was not granted the authority by the Government for incurring the expenditure of Rs.9,49,500/-. In other words, it is clear from Annexure-A8 that no amount for the payment of the rent in respect of the above said rooms was entrusted with the petitioner for the purpose of paying the rent. It is borne out from Annexure-A8 that no allotment was made to the petitioner from Delhi for incurring the Crl.M.C.8719/2016 -: 7 :- expenditure for the payment of rent. Therefore, even on assuming that the accommodation was not a rent-free accommodation, since there was no misappropriation of any amount, there is absolutely no ingredient to constitute criminal breach of trust as defined under Section 405 I.P.C. so as to attract the offences under Sections 406 and 409 I.P.C. 9. If the public servant by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a pubic servant, obtains for any person any valuable thing or pecuniary advantage without any public interest, he commits the offence of criminal mis-conduct falling within the mis-chief of Section 13(1)(d) of the P.C. Crl.M.C.8719/2016 -: 8 :- Act. 10. It appears that even if the entire allegations in the present complaint and the facts revealed in the Quick Verification Report are taken in toto, it may disclose at the best a civil dispute and not the offence of criminal misconduct falling within the ambit of Section 13(1)(d) of the P.C. Act. In view of the above reasons, even on assuming that the accommodation by the CBI in the above said Rest House was not a rent-free accommodation, none of the offences under the P.C. Act or I.P.C. is attracted in this case, merely because the rent due was not paid by the petitioner. 11. Now, the question to be considered is as to whether the accommodation availed by the CBI was a rentfree accommodation or not. It appears from Annexure-A12 Government Order dated 28.7.2016 that the Government Crl.M.C.8719/2016 -: 9 :- decided to dispense with the practice of sanctioning rentfree accommodation in PWD Rest Houses to the CBI officials with immediate effect and to realise the amount from them with effect from 14.8.2014. Annexure - A12 letter was produced before the officer, who conducted the Quick Verification Report. Annexure-R6(d), produced by the 6[th] respondent, is the copy of the Quick Verification Report. Annexure-A12 is referred to in Annexure-R6(d). Even though it is discernible from Annexure-A12 that the rent due up to 14.8.2014 need not be paid by the CBI for their accommodation in the PWD Rest Houses in Kerala, the officer who conducted the Quick Verification Report did not understand Annexure-A12 in its correct perceptive and proceeded to recommend thus:- “In the absence of any Government order providing rent-free accommodation to the CBI Crl.M.C.8719/2016 -: 10 :- during the period in question, steps should be taken by the PWD to realise the rent due from CBI.” 12. The learned counsel for the 6[th] respondent has submitted that Annexure - R6(h) would show that Annexure-A12 was kept in abeyance by the Government. It is stated in Annexure-R6(h) that in response to the request of the CBI to re-consider Annexure-A12 order, the Government issued order to temporarily freeze the said order. It is further stated in Annexure-R6(h) that the subject of request made by the CBI was under consideration by the Government. It is discernible from Annexure-R6(h) that what was frozen was the direction in Annexure-A12 to realise the rent from CBI from 14.8.2014. 13. The learned counsel for the petitioner has Crl.M.C.8719/2016 -: 11 :- produced Government Order G.O.(MS)No.92/2017/Home dated 28.4.2017 whereby the Government waived the amount of Rs.9,49,500/- due from the CBI to the P.W.D. It is mentioned in the said Government Order that the Government examined the matter in detail and are pleased to issue orders waiving an amount of Rs.9,49,500/(Rupees nine lakh forty nine thousand five hundred only) being the rent for accommodation provided at PWD Rest House, Ernkulam for the period from 16.2.1999 to 18.4.2007. It is further stated in the said Government order that revised orders are issued for providing infrastructure facilities to the CBI for setting up the campoffices in Public Works Department Rest Houses, for carrying out the investigation of crime cases referred by the State Government or the High Court. Guidelines were also issued in the G.O. mentioned above. In view of the Crl.M.C.8719/2016 **==> picture [34 x 9] intentionally omitted <==** above reason also, the investigation in this case cannot be permitted to be continued. 14. The Apex Court in Lalita Kumari v. Government of U.P. and others [2013(4) KHC 552] held that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 15. Since the allegations in the complaint and the facts revealed in the Quick Verification Report do not disclose any cognizable offence, the learned Special Judge ought not have directed the Vigilance and Anti-Corruption Bureau to register the F.I.R. That apart, the investigation so far conducted also did not reveal any cognizable offence. In view of the above reasons, Annexure - A1 order passed by the Learned Special Judge and the consequent ## Crl.M.C.8719/2016 -: 13 :- registration of Crime No.VC.20/2016/SCE cannot be sustained. Consequently, Anneuxre-A1 order and the F.I.R. registered pursuant to Annexure-A1 order stand quashed. In the result, this Crl.M.C. stands allowed. Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/14.12.17_