Yakoob Purayil v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 ``` ``` WP(C) NO. 9466 OF 2024 ``` ## **`PETITIONER:`** ``` YAKOOB PURAYIL AGED 63 YEARS S/O BEERAN HAJI, PURAYIL HOUSE, CHERUVADI MURIYIL, KODIYATHOOR VILLAGE, KOZHIKKODE TALUK, KOZHIKKODE DISTRICT, PIN - 673001 ``` ``` BY ADVS. S.J.SHEMEER V.JOHN MANI(K/421/2007) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001`** - **`2 THE HOME SECRETARY DEPARTMENT OF HOME, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE DIRECTOR GENERAL OF POLICE STATE POLICE HEADQUARTERS, VELLAYAMBALAM, CITYTHIRUVANANTHAPURAM, PIN - 695010`** - **`4 THE DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU,PMG, VIKAS BHAVAN P.O, OPPOSITE KSRTC DEPOT, THIRUVANANTHAPURAM, PIN - 695033`** - **`5 THE ADGP CRIME BRANCH EANCHAKKAL, THIRUVANANTHAPURAM, KERALA, PIN - 695008`** - **`6 THE IGP, CRIME BRANCH RANGE OFFICE, CRIME BRANCH, THRIPUNITHURA,ERNAKULAM, PIN - 682011`** - **`7 THE SP, CRIME BRANCH ALUVA RURAL, ERNAKULAM, PIN - 683101`** - **`8 THE DY.SP, CRIME BRANCH ERNAKULAM KALAMASSERY, THRIPUNITHURA, ERNAKULAM,, PIN - 682030`** - **`9 MONSON MAVUNGAL MONSON MAVUMKAL ,S/O M.L CHАСКО, С.МС 24, MAVUMKAL HOUSE, VALLAYIL BHAGOM POST, CHERTHALA CHERTHALA ALLEPPEY, PIN - 688524`** - **`10 Y.R.RESTUM THE DLF NEW TOWN HEIGHTS, SEAPORT - AIRPORT RD,`** ``` WP(C) NO. 9466 OF 2024 ``` ``` 2 ``` ``` ECHAMUKU, KAKKANAD, PIN - 682037 11M.T.SHAMEER S/O.ABDUL KAREEM MT, MELETHVUKKANDI HOUSE, PANTHEERANKAVU PO, KOZHIKODE DISTRICT, PIN - 673019 12ANOOP V AHEMMMED S/O. AHAMMED, VALIYAKATH HOUSE, MANGALAM, WAADAKANCHERI RAILWAY STATION PO, THRISSUR DISTRICT, PIN - 680582 ``` ``` BY ADVS. M.G.SREEJITH VIDYAJITH M.(K/000174/2019) BINCY JOSE(K/001070/2021) ROJIN DEVASSY(K/1581/2022) ``` SRI.RAJESH A SPL.G.P., REKHA SR.P.P ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 9466 OF 2024 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------ ## WP(C). No.9466 of 2024 -----------------------------------Dated this the 23[rd ] day of May, 2024 ## **JUDGMENT** The prayers in the Writ Petition are as follows; “i. Issue a writ of mandamus or any other appropriate writ or order or direction to the 4[th] respondent to take appropriate action against the 10[th] respondent by considering the Ext-P17 complaint. ii. Direct the respondents 1 to 4 to take appropriate and effective action against the 10[th] respondent and other delinquent officers based on Ext-P17 complaint and other allegations raised by the petitioner as expeditiously within a time frame fixed by this Hon’ble court. iii. Direct the respondents 1 to 3 to take appropriate action including disciplinary proceedings against the delinquent officers forthwith.. iv. To pass an order to dispense with filing of the translation of vernacular documents. v. Pass such other orders as the petitioner may pray for and this Hon’ble Court deems fit to grant in the circumstances of the case.” 2. Heard the learned counsel for the petitioner and the learned Special Government Pleader (Vigilance). 3. The petitioner is the defacto complainant in Crime No.260 of 2021 of Crime Branch Police Station (CBPS), Ernakulam. The principal accused in the crime is one Monson ``` WP(C) NO. 9466 OF 2024 ``` ``` 4 ``` Mavungal. He is alleged to have committed offences punishable under Sections 468, 471 and 420 of the Indian Penal Code. 4. Respondent No.10 was the Investigating Officer in the case. It is submitted that various Senior Police Officers were involved in the transactions with Shri.Monson Mavungal, respondent No.9. The various illegalities committed by the Senior Police Officials were placed before respondent No.10 by the petitioner. 5. The petitioner alleges that respondent No.10 received bribe from him. It is alleged that respondent No.10 instructed him to transfer money through the Google Pay accounts of one Mr. Liju John and Smt. Anumol K.G. The petitioner pleaded that he transferred money to different persons as instructed by respondent No.10. 6. The specific allegations levelled by the petitioner are contained in paragraph 9 of the writ petition which is extracted below. 9. It is submitted that, above stated illegalities were pointed before the 10 th respondent, the investigation officer. He was least bothered about the grievances of the petitioner and rection of the investigation officer was surprising . He replied that, if the investigation has to proceed petitioner has to spend money and the ``` WP(C) NO. 9466 OF 2024 ``` ``` 5 ``` investigation officer demanded money from the petitioner. He used the wordings ‘ കൈ നനയാതെ മീന്‍ പിടിക്കാന്‍ പറ്റൂല്ല ‘ . He asked to transfer money through Google Pay to one Mr. Liju Jhon , 9447667710. He called and informed to the petitioner that, after the transfer send the screen shot of payment. Audio clip of investigation officer to the petitioner is produced herewith marked as Exhibit-P9. The investigation officer, 10th respondent herein asked to transfer money to One Mr.Liju Jhon and to Smt. Anumol KG. True copy of screen shot of payment of Rs.10,000/- to Mr. Liju John is produced herewith and marked as Exhibit-P10 . True copy of screen shot of transaction details to Anumol KG is produced herewith and marked as Exhibit-P11 . Apart from this online transactions as per the demand of investigation officer Rs.1,00,000/- given to Mr. Sabu , SI of Crime Branch, Kalamassery . Later it came to know that from Investigation officer, the said sabu was collecting money from the petitioner for giving it to the Victim in Crime No.280/2021. 7. The petitioner thereafter filed Exhibit P17 complaint before the Director,Vigilance and Anti Corruption Bureau. The grievance of the petitioner is that the Vigilance Director has not taken any steps in Exhibit P17 complaint. 8. The learned Special Government Pleader submitted that a preliminary enquiry is required in the matter for which a prior approval under Section 17A of the PC Act, 1988 from the competent authority is required. 9. The specific allegation in the complaint preferred by the petitioner is that respondent No.10, the Investigating Officer ``` WP(C) NO. 9466 OF 2024 ``` ``` 6 ``` has received bribe from him through various persons. He has relied on Exhibits P7 to P 11 in support of his contentions. 10. I have no doubt that this is not a case where prior approval under Section 17A of the Prevention of Corruption Act is required. A bar under Section 17A operates where the alleged offence is relatable to any recommendation made or decision taken by such public servant concerned in discharge of his official function or duties. This bar does not apply to investigation or enquiry conducted into all or every offence under the Prevention of Corruption Act allegedly committed by a public servant. The purpose of Section 17A is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. When it is alleged that a public servant committed the offence of criminal misconduct by fraudulently misappropriating public money, it cannot be held that it relates to any decision taken or recommendation made by him in discharge of his official functions or duties. This view is reinforced by the decision of this Court in Jayaprakash V. State of Kerala [2022(1)KHC 206] . Therefore, I am of the view that ``` WP(C) NO. 9466 OF 2024 ``` ``` 7 ``` the bar under Section 17A of the Prevention of Corruption Act does not apply to the facts in the present case. Moreover, this Court is of the view that there is a necessity for investigation into the offence alleged. 11. In Venugopal V. State of Kerala [2021 KHC 565] this Court held that once a Constitutional Court examines and satisfies itself about the necessity or desirability of an enquiry or investigation into an offence under the PC Act, the requirement of previous approval by a competent authority is substituted by a more judicious determination. In view of the circumstances stated above, respondent Nos.3 and 4 are directed to conduct a preliminary enquiry into the allegations levelled in Exhibit P17 complaint and proceed in accordance with law. This Writ Petition is disposed of as above. Sd/- ``` K.BABU JUDGE ``` ``` saap ``` ``` WP(C) NO. 9466 OF 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 9466/2024`** ``` PETITIONER EXHIBITS Exhibit-P1TRUE COPY OF FIR IN CRIME NO.260/2021 OF CRIME BRANCH Exhibit-P2TRUE COPY OF COMMUNICATION SECRET NO. T1- 6005/2019/PHQ DATED 13-06-2019 ISSUED FROM THE KERALA POLICE HEAD QUARTERS BY STATE POLICE CHIEF Exhibit-P3TRUE COPY OF REPORT DATED 21-11-2019 BEARING NO.G1(A)-3333/2019/A ISSUED BY THE THEN DISTRICT POLICE CHIEF, ALAPPUZHA TO THE STATE POLICE CHIEF Exhibit-P4TRUE COPY OF REPORT DATED 18-06-2019 BEARING NO.G1(B)-40191/2019/EC ISSUED BY THE THEN INSPECTOR GENERAL & COMMISSIONER OF POLICE, KOCHI CITY TO THE STATE POLICE CHIEF Exhibit-P5TRUE COPY OF JUDGEMENT DATED 15-11-2022 IN WP(CRL) NO.602/2022 Exhibit-P6TRUE COPY OF AFFIDAVIT DATED 05-10-2021 FILED BY THE DGP IN WPC NO. 16674/2021 Exhibit-P8TRUE COPY OF RELEVANT PAGES OF BANK ACCOUNT STATEMENT OF MR. JOSHI DATED 14- 04-2019 Exhibit-P10TRUE COPY OF SCREEN SHOT OF PAYMENT OF RS.10,000/- TO MR. LIJU JOHN Exhibit-P11TRUE COPY OF SCREEN SHOT OF TRANSACTION DETAILS TO ANUMOL KG Exhibit-P12TRUE COPY OF COMPLAINT FILED BY THE PETITIONER DATED 08-12-2023 BEFORE THE RESPONDENTS 1 TO 3 Exhibit-P13TRUE COPY OF STATEMENT GIVEN BEFORE THE DIG, CRIMES-1, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM ON 08-02-2024 Exhibit-P14TRUE COPY OF ORDER DATED 15-02-2024 ISSUED BY THE ADDITIONAL DIRECTOR GENERAL OF POLICE Exhibit-P15TRUE COPY OF WPC NO. 37961/2023 FILED BY SMT. NIDHI DATED 14-11-2023 Exhibit-P16TRUE COPY OF JUDGEMENT DATED 17-12-2021 IN WPC NO.26008/2021 FILED BY DR.PRIYA Exhibit-P17TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 13-02-2024 BEFORE THE 4TH RESPONDENT. ``` ``` WP(C) NO. 9466 OF 2024 ``` ``` 9 ``` ``` Exhibit-P18TRUE COPY OF MAIL COMMUNICATION RECEIPT DOWNLOADED FROM ONLINE DATED 13-02-2024 TO THE 4TH RESPONDENT BY THE PETITIONER Exhibit -P19TRUE COPY OF REMINDER CUM REQUEST DATED 03-03-2024 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ```