V. K. Kerala Varma v. Dr. Beena and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 22ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ## `OP(CRL.) NO. 145 OF 2018` ``` [AGAINST THE ORDER IN CRIMINAL M.P.NO.2006/2017 DATED 20.02.2018 ON THE FILE OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, ``` ## `KOTTAYAM]` ## `PETITIONER:` ``` V.K. KERALA VARMA AGED 65 YEARS S/O. LATE. SRI. NARAYANAN NAMBOOTHIRI, RESIDING AT KAIRALI, ANANTHAPURAM PALACE, KUMARAPURAM P.O., HARIPAD, ALAPPUZHA-690548. BY ADVS. SRI.M.R.RAJENDRAN NAIR, SR.ADVOCATE ``` ## `RESPONDENTS:` - `1 DR. BEENA,EX-HEALTH SECRETARY (AYUSH), HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 HEALTH SECRETARY (AYUSH),HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM695001.` - `3 DR. M.K.C. NAIR,VICE CHANCELLOR, KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE, TRISSUR-680596.` - `4 DR. IPE VARGHESE,EX-REGISTRAR, KERALA HEALTH UNIVERSITY, MEDICAL COLLEGE, TRISSUR-680596.` - `5 DR. VENUGOPAL,DHMS, PRINCIPAL, ANSS HOMEO MEDICAL COLLEGE, S. PURAM P.O., KOTTAYAM-686532.` - `6 PROF. PRASANNAKUMAR,EDUCATION SECRETARY, N. S. S. HEAD OFFICE, PERUNNA P.O., CHANGANASSERY-686102.` - `7 SUKUMARAN NAIR,CHAIRMAN, ANSS HOMEO MEDICAL COLLEGE, GOVERNING BODY, N. S. S. HEAD OFFICE, PERUNNA P.O., CHANGANASSERY-686102.` - `8 DR. NISHA PAUL PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMEO MEDICAL COLLEGE, AYRANIMUTTOM, MANAKKAD, THIRUVANANTHAPURAM, PIN-695009.` - `9 DR. ROOFUS PRINCIPAL, R.V.S. HOMEO MEDICAL COLLEGE, KANNANPALAYAM, SULUR, COIMBATORE, TAMILNADU, PIN-641402.` OP (CRL) No.145/2018 2 ``` 10DR. V. VINOD KUMAR READER, DEPARTMENT OF COMMUNITY MEDICINE, ANSS HOMEO MEDICAL COLLEGE, S.PURAM P.O., KOTTAYAM-686532. 11DR. G. SREEDEVI READER, DEPARTMENT OF PATHOLOGY, ANSS HOMEO MEDICAL COLLEGE, S.PURAM P.O., KOTTAYAM-686532. 12DR. ARUN B. NAIR LECTURER, DEPARTMENT OF PHARMACY, N.S.S HOMEO MEDICAL COLLEGE, S.PURAM P.O., KOTTAYAM-686532. 13DR. PRATHIBHA LECTURER, DEPARTMENT OF PRACTICE OF MEDICINE, N.S.S HOMEO MEDICAL COLLEGE, S.PURAM P.O., KOTTAYAM-686532. 14DR. JAYASREE LECTURER, DEPARTMENT OF MATERIA MEDICA, A.N.S.S. HOMEO MEDICAL COLLEGE, S. PURAM P.O., KOTTAYAM-686532. 15DR. REMA,LECTURER, DEPARTMENT OF MATERA MEDICA, S. PURAM P.O., KOTTAYAM-686532. 16DR. NISHA,REPERTORY DEPARTMENT, A.N.S.S. HOMEO MEDICAL COLLEGE, S. PURAM P.O., KOTTAYAM-686532. 17DR. NARAYANAPRASAD PILLAI,DEPARTMENT OF COMMUNITY MEDICINES, A.N.S.S. HOMEO MEDICAL COLLEGE, S. PURAM P.O., KOTTAYAM-686532. 18DR. PRASHALINI DEPARTMENT OF FORENSIC MEDICINE, A.N.S.S. HOMEO MEDICAL COLLEGE, S. PURAM P.O., KOTTAYAM-686532. 19THE SUPERINTENDENT OF POLICE,VIGILANCE AND ANTI CORRUPTION BUREAUE, KOTTAYAM [IMPLEADED SUO MOTU VIDE ORDER DATED 19.9.2018 IN OP(CRL) No.145/2018] SRI.P. SREEKUMAR, SR.ADVOCATE FOR R3 SRI.K.JAJU BABU, SR.ADVOCATE FOR R5 AND R15 SRI.S.SREEKUMAR, SR. ADVOCATE FOR R6 AND R7 SRI.R.T.PRADEEP, COUNSEL FOR R8 SRI.S. RAJEEV, COUNSEL FOR R10 AND 11 SRI.P.SANKARANKUTTY NAIR, COUNSEL FOR R12,R13,R14,R16 AND R18. SRI.SYAM J. SAM, COUNSEL FOR R17, SRI.RANJIT GEORGE, SR. PP FOR R19 ``` ``` THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21.11.2022, THE COURT ON 22.11.2022 DELIVERED THE FOLLOWING: ``` OP (CRL) No.145/2018 3 ## `JUDGMENT` ``` The petitioner is the complainant in C.M.P.No.2006/2017 on the file of the Vigilance Enquiry Commissioner and Special Judge, Kottayam (hereinafter referred to as ‘Special Judge’). The aforesaid complaint was submitted by the petitioner alleging various malpractices against respondents 1 to 18 in this Original Petition in the matter of certain appointments made towards the post of Principal and Readers, Athurashramam NSS Homeo Medical College and obtaining the approval for the same from Government and the Kerala University of Health Science. The petitioner's grievance is that, based on the aforesaid complaint, Exhibit P4 order was passed by the Enquiry Commissioner and Special Judge, Kottayam, in which a preliminary inquiry was ordered only in respect of one of the allegations raised in the complaint. This ``` OP (CRL) No.145/2018 4 ``` Original Petition is filed challenging the said ``` ``` order. ``` ``` 2.The facts which led to the filing of this Original Petition are as follows: ``` ``` The petitioner is the Organizing Secretary ofKerala Medical University Teachers Sangh (hereinafter referred to as ‘KMUTS’),affiliated ``` ``` to the Akhila Bharatheeya Rashtreeya Shaikshik Mahasanghwhich is one of the leading ``` ``` organizations of teachers at the national level. ``` ``` He submitted Exhibit P1 mainly raising the following allegations: ``` ``` “(a)The appointment of 5[th] respondent as Principal was illegal as he is not qualified. Such appointment was made due to nepotism and corruption and manipulation of records and proceedings in this regard at various levels is very evident; ``` ``` (b)Appointment of readers (respondents 10 to 18) is illegal as they don’t have necessary qualifications. This is an output of nepotism and corruption; ``` ``` (c)The appointment of respondents 10 and 11 is made by false representation regarding their qualification for which fake certificates were ``` OP (CRL) No.145/2018 5 ``` issued by 9[th]respondent. This is output of corruption; ``` ``` (d) The illegal appointments were made by the college management and approved by the University and Government Officials as a part of corrupt practice that was followed in the matter of administration of the college; ``` ``` (e)Serious financial irregularities have been reported by the Auditor General in respect of various activities of the college. This too, indicates corruption and activities causing loss to Government and illegal gain to the respondents.” ``` ``` 3.It is averred by the petitioner in the ``` ``` Original Petition that when Ext.P1 complaint ``` ``` came up for consideration, the learned Special ``` ``` Judge told the petitioner that since the ``` ``` memorandum of the complaint was drafted in a complicated manner, it needed to be simplified. ``` ``` Consequently, the petitioner was required to ``` ``` reduce the contents of the complaint to a bullet point model and accordingly, he submitted Ext.P3 brief notes. It is further contended that the learned Special Judge acted upon Ext.P3 and ``` ``` considered only the averments mentioned therein, ``` OP (CRL) No.145/2018 6 ``` which were against only eight respondents out of ``` ``` 18 persons named in the original complaint. The ``` ``` respondents referred to in Ext.P3 are the respondents 1,4,5,7,8,9,10 and 11 in this ``` ``` Original Petition. During the course of ``` ``` consideration of the same, it came to the notice ``` ``` of the learned Special Judge that, earlier, another complaint was submitted by one Dr. ``` ``` Binuraj S.R., who was the General Secretary of ``` ``` ‘KMUTS’ raising the very same allegations. Based ``` ``` on the same, a quick verification was already ordered, and one Mr.Ashok Kumar, Dy.S.P. ``` ``` VigilanceandAnti-corruption,Kottayam, ``` ``` conducted a preliminary inquiry and submitted a quick verification report in respect of the same. According to the petitioner, while ``` ``` submitting the complaint, he was not aware of ``` ``` the complaint submitted by Dr. Binuraj S.R. and ``` ``` the quick verification report submitted on the basis of the said complaint. The learned Special ``` OP (CRL) No.145/2018 7 ``` Judge called for the said quick verification ``` ``` report and considered the same along with the complaint submitted by the petitioner herein. The copy of the aforesaid report is produced along with the Original Petition as Exhibit P2. ``` ``` 4.After considering the findings in Ext.P2 quick verification report and after hearing the petitioner, Ext.P4 order was passed by the learned Special Judge, by which a preliminary inquiry was ordered in respect of only one ``` ``` allegation which pertains to the appointment of respondents 10 and 11, who were arrayed as ``` ``` accused Nos. 7 and 8 in Ext.P4. According to the ``` ``` petitioner, appointments of accused Nos.7 and 8 ``` ``` were made on the basis of fake experience certificates issued by the 9[th] respondent, who is arrayed as the 6[th] accused in Ext.P4. With regard ``` ``` to the other allegations raised in the complaint, it was found by the learned Special Judge that no inquiry is required to be made ``` OP (CRL) No.145/2018 8 ``` as it is found in Ext.P2 quick verification ``` ``` report that those allegations are baseless and the learned Special Judge accepted those conclusions. This Original Petition is submitted in such circumstances. ``` ``` 5.A detailed statement has been filed by the DySP of Police, Vigilance and Anti- corruption Bureau, Kottayam. In the said statement, they support the findings of the learned Special Judge in Ext.P4 order and contend that there is no legal infirmity in the said order warranting interference of this ``` ``` Court. ``` ``` 6.In response to the same, the petitioner ``` ``` submitted a reply affidavit by producing ``` ``` additional documents to substantiate his claims. Later, a memo was submitted by the Special ``` ``` Government Pleader along with a report of the 19[th] respondent wherein it is mentioned that, an ``` ``` inquiry based on Ext.P4 order was conducted ``` OP (CRL) No.145/2018 9 ``` against respondents 10 and 11, and it was found ``` ``` that respondents 9, 10 and 11 had committed the offences punishable under Sections 420,465,468,471 and 120(B) of the Indian Penal ``` ``` Code.However, as those respondents were not ``` ``` public servants, the matter was referred to ``` ``` Chingavanam Police Station and accordingly, they registered Crime No.2294/2018, which is now ``` ``` pending investigation. ``` ``` 7.Heard Sri.M.R.Rajendran Nair, the learned ``` ``` Senior Counsel appearing for the petitioner, ``` ``` Sri.P.Sreekumar, the learned counsel for the 3[rd] ``` ``` respondent, Sri.K.Jaju Babu, the learned Senior ``` ``` Counsel for respondents 5 and 15, Sri. S. ``` ``` Sreekumar, the learned Senior Counsel for respondents 6 and 7, Sri.R.T.Pradeep, the ``` ``` learned counsel for the 8[th] respondent, Sri.S. ``` ``` Rajeev, the learned counsel for respondents 10 ``` ``` and 11, Sri. P. Sankarankutty Nair, the learned ``` ``` counsel for respondents Nos.12,13,14,16 and 18, ``` OP (CRL) No.145/2018 10 ``` Sri. Syam J. Sam, the learned counsel for respondent No.17 and Sri.Ranjit George, the learned Senior Public Prosecutor for respondent ``` ``` No.19. ``` ``` 8.In the Original Petition, the petitioner raised several allegations about the appointment of respondents 1 to 18. Before going into the said allegations, one crucial aspect to be noticed is the averment made in the Original Petition that the learned Special Judge required the petitioner to submit a simplified complaint and in response to the same, he submitted Ext.P3 wherein he limited the allegations only in respect of eight respondents. It is also contended that Ext.P3 was submitted by the petitioner only as a brief note of the ``` ``` allegations raised, but the learned Special Judge confined the consideration in respect of Ext.P3 alone without considering the contentions raised in the complaint initially submitted by ``` OP (CRL) No.145/2018 11 ``` him. However, it is discernible from the records that when this Original Petition came up for consideration on 27.6.2018, remarks were called for from the learned Special Judge as to this averment, and in response to the same, a report dated 29.6.2018 has been placed on record wherein, it is specifically mentioned that, during the course of consideration of Ext.P1 complaint, a submission was made by the petitioner to the effect that, he intends to proceed with only against some of the accused. Therefore, he was required to submit an application showing the same and accordingly Crl.M.P.No.260/2018 was filed by him showing accused Nos.1,4,5,7,8,9,10 and 11 as accused Nos.1 to 8 with brief allegations. It was in that circumstances, the consideration was limited to the averments made in Ext.P3. It is discernible from Ext.P4 order that the aforesaid aspect is clearly mentioned. ``` OP (CRL) No.145/2018 12 ``` In such circumstances, I am not inclined to accept the contention that the petitioner submitted Ext.P3 only as a brief note of the allegations contained in Ext.P1. A perusal of Ext.P3 also would indicate that it was submitted in the form of a complaint wherein only eight respondents were shown as the accused. Therefore, I do not find any merit in the contentions raised by the petitioner in this regard. ``` ``` 9.Now, when coming to the merits of the complaint submitted, the first allegation in the complaint is with respect to the appointment of the 5[th] respondent, the 3[rd] accused in Ext.P4, as the Principal of Aathurasramam NSS Homeo Medical College, Kottayam. The specific contention of the petitioner is that the 5[th] respondent did not ``` ``` have the essential qualifications to be appointed as a Principal. According to the petitioner, the minimum qualification prescribed ``` OP (CRL) No.145/2018 13 ``` for the post of Principal is as follows: ``` ``` “A post graduate degree in Homoeopathy from any of the Universities in Kerala or from any other University recognized by the Universities in Kerala as equivalent thereto. ``` ``` In the absence of persons having post graduate degree in Homoeopathy, person with Bachelors degree in Homoeopathy acquired after undergoing regular course of study for 5½ years will be considered. ``` ``` OR ``` ``` In the absence of the degree holders, persons having diploma with diploma awarded by National InstituteHomoeopathy,Calcuttawillbe considered. ``` ``` Permanent registration under Homeopathic Medical Council ``` ``` 10 years teaching experience with 5 years administrative experience or 15 years teaching experience.” ``` ``` It is contended that the 5[th] respondent is not ``` ``` having a degree qualification, but instead, his ``` ``` qualification is a Diploma in Homoeo Medicine and Surgery (DHMS). It is also contended that, even though he claims to have an M.D. ``` ``` qualification, it is a degree obtained through a ``` ``` correspondence course, usually referred to as an ``` ``` external M.D. and such degree is not recognized ``` OP (CRL) No.145/2018 14 ``` by any of the Universities in Kerala. Therefore, ``` ``` by granting appointment to the 5[th] respondent, ``` ``` the 6[th] respondent, the Education Secretary of ``` ``` N.S.S.,which is conducting the said college and ``` ``` respondent No.7 being the Chairman of the said ``` ``` College, have committed the offence under the ``` ``` Prevention of Corruption Act. Similarly, as the ``` ``` Universities and the Government approved the ``` ``` said appointment, the officials responsible for ``` ``` supporting the said appointment were also made as accused persons. ``` ``` 10.When coming to the question of ``` ``` qualification of the 5[th] respondent, it is an ``` ``` undisputed fact that the 5[th] respondent has a ``` ``` Diploma in Homoeopathy Medicine and Surgery ``` ``` (DHMS)and he passed the same in the year 1980. ``` ``` As per the Government order bearing No. ``` ``` GO(Ms)219/96/H/FWD dated 3.5.1996, which is ``` ``` produced along with the statement of the 19[th] ``` ``` respondent as Annexure-1, the DHMS obtained ``` OP (CRL) No.145/2018 15 ``` before 1983 by undergoing a course not less than ``` ``` four years duration was made equivalent to Bachelor in Homoeopathy Medicine and Surgery (BHMS). This fact was explicitly noted in Ext.P2 quick verification report and found that since the 5[th] respondent is having the qualification of a Diploma in Homoeopathy Medicine and Surgery, before the period prescribed by the Government Order cited above, the said qualification is ``` ``` equivalent to a degree course and hence it cannot be contended that he is not qualified for the post of Principal. The said finding was accepted by the learned Special Judge. With regard to the contention that, the Universities did not approve the M.D. qualification obtained by the 5th respondent in Kerala, a specific ``` ``` inquiry is seen conducted in the earlier quick ``` ``` verification report and found to be not correct. ``` ``` It is discernible that, as per the records, the 5[th]respondent acquired an MD degree in ``` OP (CRL) No.145/2018 16 ``` Homoeopathy, from Dr Baba Sahib Ambedkar ``` ``` Marathwada University in the year, 2009. As per Central Council Homoeopathy (Minimum standards of Education) Regulation 1983, (hereinafter referred to as ‘CCH Regulations’), the essential ``` ``` qualification for the post of Principal shall be the one included in the second schedule of Homoeopathy Central Council Act, 1973. The said schedule is produced as Annexure-II along with ``` ``` the statement of the 19[th] respondent wherein it is seen that the M.D. qualification acquired from Dr Baba Sahib Ambedkar Marathwada ``` ``` University is specifically included therein. Therefore, it was found that the M.D. ``` ``` qualification acquired by the 5[th] respondent is acceptable even though the Universities did not recognize the same in Kerala. It is also discernible from the inquiry report that, even in the absence of the qualification of M.D., the 5[th] respondent was eligible to be appointed as ``` OP (CRL) No.145/2018 17 ``` the Principal. This is because, as perthe CCH regulations, 1983, the essential qualification prescribed was a Degree or Diploma in ``` ``` Homoeopathy or the qualification prescribed in ``` ``` the second schedule of the Homoeopathy Central Council Act, 1973. The aforesaid regulations were amended in 2002, and amended regulations are produced as Ext.P11 in the Original ``` ``` Petition. As per the same, the qualification for ``` ``` the post of Principal is prescribed as the Post Graduate qualification in Homoeopathy and ``` ``` holding a post as Professor/Reader in a Degree level Homoeopathic college for two years or ``` ``` Degree in Homoeopathy with six years teaching ``` ``` experience as Professor/Reader in a Homoeopathic ``` ``` College. It is an undisputed fact that the 5[th] ``` ``` respondent was appointed as a Professor in ANSS ``` ``` Homoeopathy Medical College in the year, 1998, and he was promoted as the Principal of the said college with effect from 1.5.2009. As per the ``` OP (CRL) No.145/2018 18 ``` qualifications referred to above, even in ``` ``` respect of a person who was not having an M.D., he will be eligible to be appointed even if he has teaching experience as Professor/Reader for ``` ``` more than six years. Moreover, as per the ``` ``` stipulation in the CCH regulations, prior to the ``` ``` amendment in 2002, even a diploma was an ``` ``` acceptable qualification. Therefore, even if it is assumed for the sake of the argument that the ``` ``` M.D. degree acquired by the petitioner was not an acceptable qualification, he was otherwise eligible, being a person working as Professor for more than six years. On these grounds, the Inquiry Officer arrived at the conclusion that there was no illegality in the appointment of the 5[th] respondent as Principal. There is yet another aspect which fortifies the said ``` ``` findings. The appointment of the 5[th] respondent was challenged before this Court by one Dr. Sureshby fling WP(C) No.15932/2009, the said ``` OP (CRL) No.145/2018 19 ``` challenge was rejected by a Division Bench of ``` ``` this Court on 23.9.2014, wherein it was ``` ``` specificallyobservedthat,sincethe ``` ``` appointment of the 5[th] respondent was approved by ``` ``` the Universities and the Government, there is no merit in the challenge. Thus, it is evident that, as regards the contention of the petitioner that the 5[th] respondent did not have ``` ``` the requisite qualification to be appointed as Principal, the only conclusion possible is that the same is unsustainable on account of the reasons mentioned above. Therefore, the ``` ``` allegation of nepotism, bias and corruption behind the said appointment is not legally ``` ``` sustainable. This is mainly because there is no dispute that the 5th respondent was the ``` ``` seniormost professor at the time of appointment. ``` ``` Hence, the contention raised by the petitioner ``` ``` in this regard is only to be rejected. ``` ``` 11. There is yet another aspect. Even if it ``` OP (CRL) No.145/2018 20 ``` is assumed for the sake of the argument that ``` ``` there were some discrepancies in the appointment of the 5[th] respondent, that by itself would not attract the offence under the provisions of the Prevention of Corruption Act. In order to attract the offences under the Prevention of Corruption Act, there must be some materials indicating that such appointments were made dishonestly, fraudulently and or by accepting illegal gratification. The requirement for ``` ``` attracting the offence under the Prevention of Corruption Act was considered by this Court in ``` ``` Ramesh Chennithala v. State of Kerala and Another [2018(4) KLJ 647]. In the said decision, it was observed as follows: ``` ``` “37. It appears that there is a misconception among the officers of the VACB and the Police that loss caused to the Government or the Public Exchequer by a public servant in the discharge of his official functions is a ground for proceeding against him under the P.C Act. This misconception is the result of the wrong understanding of the scope and object of the Prevention of Corruption Act. For a prosecution ``` OP (CRL) No.145/2018 21 ``` against a public servant on the allegation of corruption or criminal misconduct as meant and defined under the P.C Act, the public servant must have either accepted illegal gratification or undue advantage for himself or any other person for anything done as part of his official functions as a public servant, or he must have dishonestly or fraudulently misappropriated money from public funds, or must have otherwise converted for his own use any property entrusted to him, or under his control as a public servant in the discharge of his official functions, or he must have enriched himself illicitly, or must have acquired pecuniary resources or property disproportionate to his known source of income. 38. There can be instances where some benefit or advantage is caused to a person, or such benefit or advantage is derived by a person by the wrongful acts of a public servant or due to his carelessness in the discharge of his duty or due to malfeasance. In such cases, there may be corresponding loss to the Government or the Public Exchequer also. What matters in such cases, is not whether the public servant has just caused loss to the Government or the Public Exchequer, but whether there has been any vicious link or nexus between him and the person benefited, and whether the public servant caused such benefit to the other person with the knowledge that his act will or may cause such benefit and cause loss to the Government or the Public Exchequer. In short, what is required for a prosecution is not simply that the Government or any Department of the Government or any Public body has sustained any loss. While proving such loss, the prosecution will have ``` OP (CRL) No.145/2018 22 ``` also to prove that a corresponding gain was made by the public servant or somebody else in whom he is interested or with whom he has vicious nexus. Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C Act. In short, mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C Act.” ``` ``` In this case, on examining the materials placed on record, none of the considerations mentioned in the said decision is available. Apart from the mere allegation of nepotism or malpractices, no materials are forthcoming to substantiate the same. ``` ``` 12. The next contention is with respect to the appointment of respondents 10 to 18. ``` ``` According to the petitioner, none of them were ``` ``` having the requisite qualification to be appointed as Readers in the ANSS Homoeo Medical College. The said contention cannot be ``` OP (CRL) No.145/2018 23 ``` considered on the reason that in Ext.P3 ``` ``` complaint, those aspects were not included, and the said respondents are not arrayed as accused ``` ``` persons. Even though it is contended by the petitioner that, while submitting Ext.P3, he never intended to confine his relief to the allegations raised against eight persons mentioned in the said complaint only, on perusal of the records, I am of the view that the ``` ``` allegations pertaining to them cannot be ``` ``` considered in the light of the observations made by the learned Special Judge in Ext.P4 order. In ``` ``` the said order, the learned Special Judge ``` ``` specifically observed that, while submitting Ext P3, the petitioner confined his reliefs to the matters referred to therein, and I do not have any materials or reasons to find otherwise. ``` ``` 13. Even if it is assumed for the sake of ``` ``` the argument that the petitioner is entitled to raise a contention with regard to the same, it ``` OP (CRL) No.145/2018 24 ``` can be seen that, in Ext.P2 quick verification ``` ``` report, all those aspects are clearly mentioned and nothing has been produced by the petitioner ``` ``` for controverting the findings entered in the said report with respect to the same. In the statement filed by the 19[th] respondent also, it ``` ``` is asserted that all the said appointments were ``` ``` made based on their qualification. Therefore, ``` ``` appointments were approved by the University as well as the Government. However, only with respect to the appointment of respondent No.15, Dr. Rema, there was some objection, and the ``` ``` University did not approve the same. Therefore, ``` ``` she has been continuing as a lecturer since 2014 ``` ``` without pay. As mentioned above, even if it is assumed for the sake of argument, there were ``` ``` some discrepancies in their appointments that by ``` ``` itself would not enable the Special Judge to direct the Vigilance and Anti-corruption Bureau to register a crime. The learned Special Judge ``` OP (CRL) No.145/2018 25 ``` can direct the registration of F.I.R. only if it ``` ``` is satisfied that the complaint discloses a cognizable offence punishable under the provisions of the Prevention of Corruption Act. ``` ``` In Manoj Abraham, IPS v. P.P.Chandrasekharan Nair and Another [2017(3) KHC 983], it was ``` ``` observed by this Court as follows: ``` ``` “14. Special Courts under the PC Act are authorised to receive complaints under S.190 Cr.P.C. All the procedural aspects applicable to the Court of a Judicial First Class Magistrate, will apply to the Special Courts also. In view of the directions of the Honourable Supreme Court in Lalitha kumari's case, the Court below ordered a preliminary enquiry before proceeding on the complaint under S.156(3) Cr.P.C., or under S.200 Cr.P.C. Ofcourse, it was quite right, and in cases like this investigation cannot be straight away ordered under S.156(3) Cr.P.C. The purpose of obtaining a report of preliminary enquiry is to ascertain whether there is any scope to proceed on the complaint under S.156(3) Cr.P.C., or under S.200 Cr.P.C., or whether the complaint would deserve rejection at the threshold. The first option possible for a Court would be to reject the complaint if the Court identifies it as a dishonest complaint, or if the Court finds no material at all for a prosecution on the basis of the complaint. In a case where a report of enquiry is obtained by the Special Court, the ``` OP (CRL) No.145/2018 26 ``` Court can reject the complaint, if the report of preliminary enquiry would convince the Court beyond any reasonable doubt that there is absolutely no merit in the complaint, or that there is no reason at all for a prosecution, or if the Court finds that the complaint is in fact a dishonest one. In this case, the report of preliminary enquiry is practically in favour of the petitioner. But the learned Trial Judge entertained his own doubts about the report, and proceeded to examine it in detail after giving notice to the complainant, and after obtaining objections from him. ``` ``` 15. Of course, when a report of preliminary enquiry is filed in Court, the Special Court is not bound to accept it. If the Court finds that the report is not clear, or if the Court wants some more details, the VACB can be directed to make a proper enquiry, and to submit a proper report. In cases where further or additional materials will have to be furnished by the complainant for proceeding further on the complaint, when the Court is not inclined to accept the report immediately, the Court will have to direct the complainant to furnish the required materials in Court.” ``` ``` In this case, the Special Court before arriving ``` ``` at a conclusion considered the quick ``` ``` verification report submitted on the basis of a complaint submitted by Dr. Binuraj S.R., which has admitted by the petitioner as containing the ``` OP (CRL) No.145/2018 27 ``` very same allegations, and arrived at the ``` ``` specific conclusion that no cognizable offence punishable under the Prevention of Corruption Act is made out. ``` ``` 14.Even though, the petitioner raised a ``` ``` contention that the learned Special Judge ought not to have relied upon Ext.P2 quick ``` ``` verification report as the same was not a report ``` ``` obtained based on the complaint submitted by the ``` ``` petitioner, I find no merit in the said contentions. It is discernible that Dr.Binuraj ``` ``` S.R. submitted the said complaint in his ``` ``` capacity of General Secretary of ‘KMUTS’ whereas ``` ``` the petitioner herein claims to be the ``` ``` Organizing Secretary of the very same organization. Thus, when a complaint submitted ``` ``` by an office bearer of the same organization ``` ``` resulted in a quick verification report, the petitioner, another office bearer of the same organization, cannot claim that said quick ``` OP (CRL) No.145/2018 28 ``` verification cannot be accepted. This is particularly when, even according to the petitioner, the allegations raised in both these complaints are the same. On perusal of the Ext.P2 quick verification report, it can be seen that all the allegations raised in Ext.P1 complaint are seen addressed in Ext.P2 report. The learned Special Judge specifically considered all the conclusions in the said verification report and after a meticulous analysis, came to the finding that no cognizable offence punishable under the Prevention of Corruption Act is made out, except the allegations in relation to the appointment of ``` ``` respondents 10 and 11. ``` ``` 15.Thus, on careful scrutiny of the observations made by the learned Special Judge and the other materials relied on by him, ``` ``` such as the quick verification report, the ``` ``` relevant statutory provisions prescribing the ``` OP (CRL) No.145/2018 29 ``` qualifications of the parties concerned etc., ``` ``` I have no hesitation in holding that, the contentions raised by the petitioner are without any merits. ``` ``` In such circumstances, I do not find any ``` ``` justifiable reasons to interfere with Ext.P4 order, and accordingly, this Original Petition is dismissed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` OP (CRL) No.145/2018 30 ## `APPENDIX OF OP(CRL.) 145/2018` |`PETITIONERS’ EXHIBITS:`|`PETITIONERS’ EXHIBITS:`| |---|---| |`EXHIBIT P1`|`A TRUE COPY OF THE MEMORANDUM OF COMPLAINT`| ||`SUBMITTED BY THE PETITIONER.`| |`EXHIBIT P2`|`A TRUE COPY OF THE QUICK VERIFICATION`| ||`CERTIFICATE DATED 30.6.2017 ISSUED BY THE`| ||`DY.S.P., VIGILANCE AND ANTI-CORRUPTION,`| ||`KOTTAYAM.`| |`EXHIBIT P3`|`A TRUE COPY A BRIEF NOTE OF MEMORANDUM OF`| ||`COMPLAINT SUBMITTED BY PETITIONER.`| |`EXHIBIT P4`|`A TRUE COPY OF ORDER DATED 20.2.2018 ISSUED`| ||`BY THE SPECIAL JUDGE.`| |`EXHIBIT P5`|`A TRUE COPY OF THE MINUTES DATED 12.2.1993`| ||`SUBMITTED BY PETITIONER.`| |`EXHIBIT P6`|`A TRUE COPY OF THE REGULATION SUBMITTED BY`| ||`PETITIONER.`| |`EXHIBIT P7`|`A TRUE COPY OF NOTE DATED 17.11.2009.`| |`EXHIBIT P8`|`A TRUE COPY OF THE GO. NO. (MS)`| ||`219/96/HOMEO DATED 3.5.1996.`| |`EXHIBIT P9`|`A TRUE COPY OF THE REJECTION OF COMMITTEE`| ||`OF EQUALIZATION SUBMITTED BY PETITIONER.`| |`EXHIBIT P10`|`A TRUE COPY OF THE PROMOTION ORDER`| ||`NO.E/2448/2009 DATED 29.4.2009.`| |`EXHIBIT P11`|`A TRUE COPY OF THE HOMEOPATHY (MINIMUM`| ||`STANDARD OF EDUCATION) AMENDMENT REGULATION`| ||`OF 2002 PUBLISHED IN GOVERNMENT OF INDIA`| ||`GAZETTE DATED 12.9.2002.`| |`EXHIBIT P12(A)`|`THE TRUE COPY OF THE RELEVANT PORTIONS OF`| ||`THE INSPECTION REPORTS FOR 2010-11 OBTAINED`| ||`THROUGH THE RIGHT TO INFORMATION ACT.`| |`EXHIBIT P12(B)`|`THE TRUE COPY OF THE INSPECTION REPORT FOR`| ||`THE SAME COLLEGE 2012-13.`| |`EXHIBIT P13`|`A TRUE COPY OF THE RESPONSE RECEIVED UNDER`| ||`RIGHT TO INFORMATION ACT FROM THE MGR`| ||`MEDICAL UNIVERSITY.`| |`EXHIBIT P14(A)`|`A TRUE COPY OF CERTIFICATE DATED 12.8.2015`| ||`OF THE RESPONDENT 10 AND 11.`| |`EXHIBIT 14(B)`|`A TRUE COPY OF CERTIFICATE DATED 12.8.2015`| ||`OF THE RESPONDENT 10 AND 11.`| |`EXHIBIT P15`|`A TRUE COPY OF THE ORDER NO. 12-4/91-CCH`| ||`ISSUED BY THE SECRETARY CENTRAL COUNCIL OF`| ||`HOMEOPATHY, NEW DELHI.`| |`EXHIBIT P16`|`A TRUE COPY OF THE ORDER NO. 19-8/97-CCH`| ||`DATED 4.11.2004 ISSUED BY THE SECRETARY`| ||`CENTRAL COUNCIL OF HOMEOPATHY, NEW DELHI.`| |`EXHIBIT P17`|`A TRUE COPY OF THE REPORT DATED NIL AS`| ||`ISSUED BY THE UNIVERSITY UNDER RIGHT TO`| OP (CRL) No.145/2018 31 ``` INFORMATION ACT. ``` ``` EXHIBIT P18A TRUE COPY OF THE ESTIMATE DATED 8.1.2009 OF THE EXECUTIVE ENGINEER. EXHIBIT P19A TRUE COPY OF THE REPORT FOR 1999-2000 TO 2007-08 AS OBTAINED UNDER RIGHT TO INFORMATION ACT. EXHIBIT P20A TRUE COPY OF THE REPORT DATED 19.7.2018 EXHIBIT P21A TRUE COPY OF THE LETTER DATED 14.8.2018 ALONG THE POSTAL RECEIPT THEREOF EXHIBIT P22ATRUECOPYOFTHEORDER NO.6651/AC1/GEN/A3/AUHS/2013DATED 18.9.2018 EXHIBIT P23A TRUE COPY OF THE PROMOTION ORDER DATED 6.5.2017 EXHIBIT P24A TRUE COPY OF THE ORDER DATED 16.10.2018 IN CRL.M.P.NO.2006/2017 EXHIBIT P25A TRUE COPY OF THE REPRESENTATION SUBMITTED TO SHO CHINGAVANAM POLICE STATION DATED 24.10.2018 EXHIBIT P26A TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 7TH RESPONDENT. EXHIBIT P27A TRUE COPY OF THE REMINDER SUBMITTED BEFORE THE 7TH RESPONDENT ON 4.11.2018 EXHIBIT P28A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES. EXHIBIT P29ATRUECOPYOFTHEORDER NO.R.17014/55/2013-EP(H) DATED NOVEMBER, 2017 ``` ``` RESPONDENTS’ ANNEXURES: ``` ``` ANNEXURE 1TRUE COPY OF THE GO(MS)219/96/H & FWD DATED 3.5.1996 ANNEXURE IITRUE COPY OF THE SECOND SCHEDULE OF THE HOMOEOPATHY CENTRAL COUNCIL ACT 1973 ANNEXURE IIITRUECOPYOFTHEORDER NO.4429/B11/2009/Acad DATED 15.10.2009 ANNEXURE IVTRUE COPY OF THE EXPERIENCE ANNEXURE VTRUE COPY OF THE JUDGMENT IN WP© NO.17262/2015 DATED 15.12.2016 ANNEXURE VITRUE COPY OF THE GO(MS)NO.188/2011/H & FWD DATED 1.3.2011. ```