## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE V.K.MOHANAN**
**WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932**
**Crl.Rev.Pet.No. 1874 of 2010(D)**
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**[CRL.M.P.NO.126/2010 IN THE COURT OF THE SPECIAL JUDGE (SPE/CBI)-I, ERNAKULAM]**
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## **PETITIONER/COMPLAINANT:**
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**THOMAS V.THOMAS,S/O.V.E.THOMAS, VELOOR HOUSE,P.O.KARTHIKAPPALLY, ALAPPUZHA-690 515.**
**BY ADVS. SRI.C.S.MANU, SRI.S.K.PREMRAJ.**
## **RESPONDENTS/ACCUSED:**
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**1. V.R.MENON,FATHER'S NAME AND AGE NOT KNOWN TO THE COMPLAINANT,PRESENTLY WORKING AS THE SENIOR DIVISIONAL RETAIL SALES MANAGER,INDIAN OIL CORPORATION LIMITED,PANAMPILLY AVENUE,PANAMPILLY NAGAR, KOCHI-682 036.**
**2. PREMJITH,FATHER'S NAME AND AGE NOT KNOWN TO THE COMPLAINANT,PRESENTLY WORKING AS THE FIELD OFFICER,INDIAN OIL CORPORATION LIMITED,PANAMPILLY AVENUE,PANAMPILLY NAGAR,KOCHI-682 036.**
**3. DEEPA SAJEEV,W/O.K.K.SAJEEV,AGE NOT KNOWN TO THE COMPLAINANT,RESIDING AT KADACKAL PEEDIKAYIL HOUSE,P.O.PENNUKKARA,ALAPPUZHA-689520.**
**4. AJAY KUMAR,FATHER'S NAME AND AGE NOT KNOWN TO THE COMPLAINANT,RESIDING AT KALATHILETHU RAMAPURAM,P.O.KEERIKKADU,ALAPPUZHA-690508.**
## **BY**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON 11/08/2010 PASSED THE FOLLOWING:**
**prv.**
## **V.K.MOHANAN, J.**
**---------------------------------------Crl.R.P. No. 1874 of 2010 ----------------------------------------** Dated the 11[th] Day of August 2010
## **ORDER**
Aggrieved by the order dated 18.5.2010 in Crl.M.P.No.126/2010 of the court of Special Judge(SPE/CBI)I, Ernakulam, by which the learned Special Judge dismissed the above complaint therein, the complainant preferred this Crl.Revision Petition.
2. Annexure-A1 is the complaint which preferred under section 190(1)(a) of the Central Act II of 1974 read with Section 5(1) of the Prevention of Corruption Act, (hereinafter referred for short 'the P.C.Act')
3. The allegation in the complaint is that the revision petitioner along with other four land owners leased out their lands, total measuring 35.07 cents comprised in Survey Nos. 529/2-3, 529/2-2, 528/5 and 529/2-1 of Pallippadu Village in Alappuzha district to the 3[rd] accused for a period of 21 years to run a retail outlet of the Indian Oil Corporation Limited (herein after referred for short 'the IOC') and the same was on the basis of a lease agreement
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executed between the land owners and the 3[rd] accused and according to the complainant, the IOC granted dealership on the basis of the above lease agreement. It is also the case that a separate lease agreement was also executed between the IOC and the 3[rd] accused. The further allegation is that the 3[rd] accused has clandestinely transferred dealership to the 4[th] accused who is now running the retail outlet.
4. According to the complainant, the 3[rd] accused transferred the outlet to the 4[th] accused without the consent, knowledge, and permission of the complainant and the other land owners. According to the complainant, when himself and other land owners came to know about the transfer of the outlet by the 3[rd] accused to the 4[th] accused, they informed the same to the Ist accused who was working as Senior Divisional Retail Sales Manager of IOC and requested him to initiate action against the above illegal transaction. The 2[nd] accused is the Field Officer of IOC. According to the complainant, A1 and A2 are the henchmen of A3 and A4 and A1 and A2 have been bribed
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by A3 and A4 to refrain from contemplating action for transfer of the dealership.
5. According to the complainant, the inaction on the part of A1 and A2 against A3 and A4 is in pursuance of a criminal conspiracy hatched between themselves and A1 and A2. So it is alleged that due to the said criminal conspiracy, A1 and A2 are forebearing to initiate action to terminate the dealership of A3 and A4 and thus A1 and A2 by corrupt and illegal means, are obtaining from A3 and A4, undue pecuniary advantage. Thus according to the complainant, the accused are punishable under section 120-B of IPC and Sections 11 and 13(2) of the P.C. Act. It is also the case that a complaint was lodged before the Superintendent of Police, CBI, Kochi on 21.11.2009, but no action was taken, hence he approached the Special court with Annexure A1 complaint.
6. On filing the complaint, the learned Special Judge, as revealed from the impugned order, posted the complaint for hearing on the question of maintainability and the Prosecutor was also directed to enlighten the
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court on the question of maintainability of a private complaint before the court. After referring to various authorities cited before the learned Special Judge, and also considering the complaint and the procedure adopted by the complainant in filing the same, the learned Special Judge has specifically found that the alleged offence is under sections 11 and 13 of the P.C.Act by public servants and along with the complaint, the requisite sanction is not produced and therefore, according to the
learned Special Judge, “even if the complaint is examined and this court want to taken cognizance, the bar under section 19 of the Act will be there”.
7. The learned Special Judge has further found that if the complaint is sent for investigation under section 156 (3)of Cr.P.C, the CBI is bound to register the FIR and investigate. It is further observed that our Hon'ble Apex Court recognized the Manual of CBI, which says about a preliminary inquiry and the preliminary inquiry is to avoid unnecessary harassment of public servants. Thus
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according to the learned Special Judge, if the complaint is sent under section 156(3) of Cr.PC, this safety measure may not be effective and the court need to overlook this safety measure only when the facts and circumstances narrated in the complaint is glaring or staring to the court, compelling to choose such a course. The Special court further found that though the court can order preliminary inquiry giving liberty for the CBI to register or not to register a crime, such a course can be resorted only very sparingly since it will be an order stepping into the area of police inquiry and in order to come into such a conclusion, the learned Special Judge relied upon the decision of the Apex Court in **Shashikant v. CBI and another (2007 (1) SCC (Cri) 406).**
8. Thus by assigning the above reasons, the learned Special Judge dismissed the complaint.
9. The learned counsel for the revision petitioner vehemently argued that the learned Special Judge has not stated any reason for taking the view that it is not a fit case to order to conduct a preliminary inquiry or to
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direct to register a case by forwarding under section 156 (3) Cr.P.C. Thus, according to the learned counsel, the order impugned is not a speaking order. It is also the contention of the learned counsel that in view of Section 19(3) of the P.C. Act, the bar contained under section 19(1) is diluted and therefore, the learned Special Judge is not correct and legal in dismissing the complaint for want of sanction. It is also the contention of the learned counsel that it is improper and illegal on the part of the court below in non-exercising its jurisdiction, especially, when the court has found ample jurisdiction to entertain the complaint.
10. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner and also perused the impugned order and gone through the authorities relied on by the counsel for the revision petitioner as well as the learned Special Judge.
11. From the facts involved in the case, it appears that the main grievance of the revision petitioner/complainant is that though there was a lease
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agreement between the revision petitioner/complainant being the land owner with the 3[rd] accused for conducting the sales outlet of IOC, the 3[rd] accused without his consent, permission or knowledge transferred the licence in favour of the 4th accused. According to the him, accused 1 and 2 are not taking action against accused 3 and 4. It is the above allegation considered by the court below and the court came into the conclusion that the Apex court has recognized the Manual of CBI which contemplates a preliminary inquiry and such preliminary inquiry is to avoid unnecessary harassment of public servants and when a complaint is sent under section 156 (3) Cr.P.C., this safety measures will not be effective and the court need to overlook this safety measure only when the facts and circumstance narrated in the complaint is glaring and staring to the court compelling to choose such a course. From the above observation and discussion, it is crystal clear that the learned Special Judge has applied its judicial mind upon the facts and circumstances involved in the complaint and particularly
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the allegations and grievance of the complainant and declined to exercise powers under section 156(3) Cr.P.C.
12. The contention of the learned counsel that by virtue of Section 19(3) of the P.C.Act, the rigor contained under action 19(1) is diluted cannot be accepted as the same is contrary to the statutory provisions. All the situations contemplated under section 19(3) of the P.C.Act are post cognizance stage. Therefore, in order to take cognizance upon the private complaint, even if the other requirements are satisfied, sanction contemplated under section 19(1) is a condition precedent to take cognizance and in the absence of proper sanction, the court is statutorily debarred from taking cognizance upon a complaint where the allegations are against the public servants and the offences alleged are punishable under sections 7, 10, 11, 13 and 15 of the P.C.Act. Therefore, the learned Special Judge is perfectly justified in holding that even if the court is inclined to take cognizance, the bar under section 19 will negate such action.
13. It is also relevant to note that in paragraph 6 of
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the impugned order, the learned Special Judge has specifically observed: “Surely, this order will not be a bar to conduct an inquiry as contemplated in para 9.1 of Manual”. In the light of the above observation, the complainant can proceed in that line if he is so advised and the dismissal of the complaint by the learned Special Judge or dismissal of this Crl.R.P. approving the correctness, legality and propriety of the impugned order will not be a bar for the complainant to proceed with in terms of the observation made by the learned Special Judge in the impugned order.
With the above observation, this Crl.R.P is dismissed as the same is devoid of any merit.
## **V.K.MOHANAN**
**JUDGE**
**kvm/-**
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## **kvm/-**
O.P.No.
**JUDGMENT**
Dated:..
