State of Kerala v. Tomin J. Thachankary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 9TH DAY OF JULY 2014/18TH ASHADHA, 1936** **WP(C).No. 2652 of 2008 (N) --------------------------MISC (O.P.).797/2007 OF DISTRICT COURT, ERNAKULAM. ........** **PETITIONER(S): --------------------------** **STATE OF KERALA, REPRESENTED BY V. MURALEEDHARAN NAIR, AGED 53/07, S/O.K. VELAYUDHAN PILLAI, SUPERINTENDENT OF POLICE, VACB, SPECIAL CELL, ERNAKULAM.** **BY SRI.TOM JOSE PADINJAREKKARA, ADDL. D.G.P.** **RESPONDENT(S): ----------------------------** **TOMIN J.THACHANKARY, IPS, S/O.JOSEPH THOMAS, IG OF POLICE, FORMERLY MANAGING DIRECTOR, KERALA BOOKS & PUBLICATIONS SOCIETY, KAKKANAD, ERNAKULAM, (RESIDING AT 32/2899, THACHANKARY HOUSE, THAMMANAM POST, KOCHI).** **BY ADVS. SRI.KKM.SHERIF, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SMT.K.K.RATNALATHA, SMT.SHEENA SAMUEL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 2652 of 2008 (N)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE APPLICATION DATED 29/11/2007 NUMBERED AS OP(MISC) 797/07. EXT.P2 COPY OF THE CAVEAT O.P. NO. 367/07. EXT.P3 COPY OF THE ORDER DATED 30/11/2007 PASSED BY THE DISTRICT JUDGE, ERNAKULAM IN O.P.(MISC) NO.797/07. EXT.P4 COPY OF THE O.P. NO. 798/2007 FILED BY THE RESPONDENT BEFORE THE DISTRICT COURT, ERNAKULAM. EXT.P5 COPY OF THE ORDER OF THE DISTRICT JUDGE, ERNAKULAM ON 04/12/2007 IN OP(MISC) NO.797/07. EXT.P6 COPY OF THE ORDER DATED 18/12/2007 IN O.P. (MISC) NO.797/2007.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE AFORESAID FIR IN CRIME VC 03/07/SCE DATED 04/07/2007. EXT.R1B COPY OF THE AFORESAID BANK GUARANTEE DATED 14/12/2007. EXT.R1C COPY OF THE AFFIDAVIT DATED 15/12/2007.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **rs.** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------W.P.(C). No.2652 of 2008 --------------------------------------------------------------------Dated this the 9[th] day of July, 2014 ## J U D G M E N T This writ petition is filed by the State, challenging the order, directing the respondent to furnish bank guarantee instead of attachment of his properties under Article 227 of the Constitution of India. 2. It is alleged in the petition that, the petitioner is the investigating officer in VC No.3/2007/SCE registered at VACB Special Cell Police Station, Ernakulam, against the respondent for offences punishable under Section 13(1) (d) and (e) and read with Section 13(2) of the Prevention of Corruption Act, 1988. Before registering the above case, a vigilance enquiry was conducted and it is revealed that, the respondent is in possession of the assets worth 1,17,75,565/- as on 31.03.2005. Out of which assets₹ worth ₹94,37,376/are disproportionate to his known source of income during the period from 01.01.2003 to W.P.C.2652/ 2008 2 31.03.2005, for which he has no satisfactory explanation. The respondent procured landed property worth ₹1,06,40,500/- during that period and he had shown only ₹21,24,000/- on record thereby evaded stamp duty worth ₹5,10,990/- and registration fee of 1,70,330/-, he obtained₹ pecuniary gain to the extent of 6,81,320/- and thereby₹ caused corresponding loss to the government. The petitioner after registering the above case, filed Ext.P1 application under Section 3 and 4 of Criminal Law (Amendment) Ordinance, 1944, praying for attachment of the properties mentioned in Annexure-1 and 2 produced along with the petition, till the disposal of the case. 3. Respondent herein filed caveat before the District Court, which is numbered as Caveat O.P.No.367/2007. On 30.11.2007, when the matter came up for consideration before the court below, the learned Sessions Judge directed the petitioner to serve a copy of the application to the respondent in view of the Caveat O.P W.P.C.2652/ 2008 3 already filed in the above matter and posted for examination by the officer, who filed the affidavit and posted the case to 04.12.2007. As per directions of the court, petitioner served a copy of the petition to the respondent and the respondent filed an application as O.P.No.798/2007 on the same day, praying the respondent to grant an opportunity to furnish security by way of bank guarantee of a nationalized bank. On 04.10.2007, the petitioner was examined under the proviso under Section 4 (1) of the Criminal Law (Amendment) Ordinance. But without considering the application and affidavit filed by the petitioner, straightaway allowed the respondent to furnish the security to the tune of 95,00,000/- by way of₹ bank guarantee under Section 8 of the ordinance. Accepting the above said submissions of the respondent, the court below posted the case to 18.12.2007 for considering the sufficient security offered. On 18.12.2007, the respondent furnished security in the form of bank W.P.C.2652/ 2008 4 guarantee to the tune of 95,00,000/-. Being satisfied with₹ the bank guarantee, furnished by the respondent, the learned Sessions Judge closed the petition. The above order is being challenged by the petitioner by filing this petition. 4. Heard the learned Additional Director General of Prosecution, Sri. Tom Jose Padinjarekara appearing for the petitioner / State and the learned counsel appearing for the respondent. 5. The learned Additional Director General of Prosecution submitted that, the procedure adopted by the court below is not proper and in fact after the application was filed, respondent had undertaken before this court that, he will not alienate the properties and according to the petitioner, entire properties were alienated against the undertaking. Further the purpose of the attachment is to protect the property, which has been acquired using the unlawful amount amassed by illegal means during the W.P.C.2652/ 2008 5 relevant period for the purpose of taking over, if ultimately it is found that he is guilty of the offence alleged under the Prevention of Corruption Act for this purpose. 6. On the other hand, learned counsel for the respondent submitted that, in fact the petition itself has become infructuous, as even if an attachment is required, it will be required only for one year as per Section 10 of the Criminal Law (Amendment) Ordinance, 1944. Further under Section 8, the court is at liberty to order security also in lieu of attachment and that was, what has been done in this case. On the date of filing the application, the counsel for the respondent appeared and took time and it was on that basis, the District Judge has granted time. In fact on the date in which the application filed by the petitioner has come up for hearing, the petition filed by the petitioner offering security was also posted and it was on that basis a direction has been given in this application and accordingly both the cases were heard after conducting enquiry, the W.P.C.2652/ 2008 6 learned Sessions Judge has ordered bank guarantee, which has been provided. In fact, after the period of one year, the petitioner filed an application for releasing the bank guarantee and after hearing both sides, the application was also allowed. So there is nothing serves in this petition to be considered now. Further, the alienations were made even before the petition was filed and he had only undertaken that, the further alienation will not be done and in fact no such alienations were done also, though the property was gifted in the favour of his wife earlier. 7. It is settled law that, when a case has been registered under the provisions of the Prevention of Corruption Act, on the ground of amassing wealth of disproportionate to his income and during the enquiry invoking the power under Section 3 and 4 of the Criminal Law (Amendment) Ordinance, 1944, the investigating officer is entitled to file an application before the concerned District Court, within whose jurisdiction the properties are W.P.C.2652/ 2008 7 situated for attachment of so acquired properties and if the court is satisfied that, there is a possibility of alienation or it is to be attached later or confiscated later, then the court can order attachment and that attachment will be in force only for a period of one year or till an application is filed before the concerned court for extending the attachment subsequently, by virtue of Section 10 of that ordinance. It is always not necessary that, the court must order exparte attachment and, if the court feels that, an enquiry will have to be conducted, the court is at liberty under Section 8 of the Act to conduct an enquiry and also applying the principle under Order 38 of the Code of Criminal Procedure, even direct the parties to furnish security in lieu of attachment. So under the circumstances, the order passed by the court below, directing the petitioner to furnish security by way of bank guarantee for the amount in lieu of attachment cannot be said to be illegal. So the grounds taken by the petitioner in this petition that, W.P.C.2652/ 2008 8 illegality has been committed by the court below in passing the order of furnishing security in lieu of attachment is illegal cannot be accepted. This was supported by the Division Bench decision of this court in **(2007 (4) KHC 828) Dr.V.K. Rajan and others v. State of Kerala** . Further it is seen that, no petition for extension of the bank guarantee was filed by the State, either before the District Court or before this court during the pendency of this petition. So under the circumstances, releasing the bank guarantee after hearing both sides for the Sessions Court also cannot be said to be illegal for the time being. 8. While disposing this petition, the learned Additional Director General of Prosecution submitted that, the right of the petitioner to move the concerned court, where the case is pending to move for attachment as provided under Section 5(6) of the Prevention of Corruption Act may be left open. It may be mentioned here that the Criminal Law (Amendment) Act, only enables State to file W.P.C.2652/ 2008 9 an application during the period of investigation and after the investigation is over and the case is filed before the concerned court, then they can file an application for attachment of the properties, if they feel that, the respondent is likely to transfer the properties, then that can be considered by that court under Section 5(6) of the Act, as though it is a District Judge, who has to pass orders as provided under the Criminal Law (Amendment) Ordinance, 1944. So, that right is always available to the investigating officer to approach that court for that purpose during the pendency of the trial of the case, after the investigation is completed and case was taken on file by that court. It is also submitted by the Additional Director General of Prosecution that, after investigation, final report was filed in this case and it is now pending as C.C. 22/2013 before the Enquiry Commissioner and Special Judge of Vigilance, Thrissur. So the petitioner is at liberty to move that court for this purpose and that right is not curtailed by dismissal W.P.C.2652/ 2008 10 of this application, as they can at any time move that application before that court. Further the undertaking given by the respondent that, he will not alienate the property, will be in force for a period of two months from today and within that time, if the State wants to file a petition before the concerned Special Court, where the case is pending, for attachment of the properties, they can file the application and that court is at liberty to consider and pass appropriate orders in that application, in accordance with law. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss