IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 OP(CRL.).NO. 446 OF 2011(Q) ------------------------------------------ CC.115/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM .................... PETITIONER: ------------------ C.K.KRISHNAN, S/O.APPU, A.R.CAMP ROAD, MALOORKUNNU, CHEVAYOOR, KOZHIKODE. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE POLICE STATION, THODUPUZHA, IDUKKI. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(Crl.) No.446 of 2011 ==================================== Dated this the 11th day of February, 2011 J U D G M E N T The Deputy Tahsildar at the office of the Special Tahsildar Murikkassery in Idukki District being the first accused in C.C. No.115 of 2008 of the court of the learned Enquiry Commissioner and Special Judge (for short, “the Special Judge”) has filed this petition challenging the order of the Special Judge framing charge against him for offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for short, “the Act”). The Deputy Superintendent of VACB, Idukki submitted final report against four accused including petitioner in Crime No.VC.7 of 2010 alleging commission of offences punishable under Secs.13(1) (d), 13(2) and 15 read with Sec.13(1)(d) of the Act and Sections 409, 468, 471 and 120B read with Section 109 of the Indian Penal Code, charge being that petitioner and second to fourth accused conspired and connived together and abetted the issue of a fraudulent Patta in favour of the third accused for illegal gratification. The second accused was the then Deputy Tahsildar. Third accused is said to be the beneficiary of the alleged fraud. O.P(Crl.) No.446 of 2011 -: 2 :- The 4th accused is a School Teacher who also was allegedly a party to the fraud and conspiracy. According to the Investigating/Charging Officer Patta was issued to the third accused as above stated suppressing official records and possession (of the property) of one Abraham Joseph (husband of third accused). It was stated that in the light of the fraud committed by the officials in the issue of Patta to the third accused, the District Collector Idukki on a petition filed by the said Abraham Joseph cancelled the Patta issued in favour of the third accused. It is accordingly that the final report was filed against four accused including petitioner as above stated. When the matter was argued before the Special Judge it was pointed out that the Patta issued in favour of the third accused was cancelled by the District Collector which order, this Court set aside as per Ext.P6, judgment in O.P. No.7615 of 2001. Taking note of the said development learned Special Judge observed that judgment of this Court has to be respected and obeyed and hence the VSCB could no more contend that Patta issued to the third accused is fraudulent. Accordingly petitioner and other accused were discharged for the offence attributed to them under the IPC. The second accused was discharged for the reason that O.P(Crl.) No.446 of 2011 -: 3 :- the statement given by the witnesses did not reveal his involvement in the alleged illegal gratification. But charge was framed against petitioner and accused 3 and 4 for offences punishable under Secs.7 and 13(2) of the Act. Petitioner challenges that order of the Special Judge faming charge against him. Learned counsel contends that in the light of Ext.P6, judgment of this Court in O.P. No.7615 of 2001 and Ext.P6(a) judgment in Writ Appeal No.1110 of2009 it could no more be contended that the Patta issued to the third accused is fraudulent. It is also contended by the learned counsel that there is no material to show that there was any demand made by the petitioner for any illegal gratification as alleged. Learned counsel contended that Patta was issued to the third accused in a lawful manner in the course of discharge of official duty. Petitioner was engaged in issuing about 4000 and odd Pattas, he is aged about 62 years and that it is hard to ask him to face trial on insufficient material collected by the Special Judge in the course of inquiry. Learned counsel made a fervent plea to discharge petitioner of the charges made against him. Learned Public Prosecutor contended that there is sufficient material on record based on which the Special Judge has framed charge against petitioner O.P(Crl.) No.446 of 2011 -: 4 :- under Secs.7 and 13(2) of the Act. 2. It is apposite to refer to Secs.7 and 13(2) of the Act. Section 7 deals with Public servant taking gratification other than legal remuneration in respect of an official act while Sec.13(2) refers to a public servant committing criminal misconduct in the course of his official duty. 'Criminal misconduct' is defined in Sec.13 of the Act and sub-clause (a) says about habitually accepting or obtaining or agreeing to accept or attempting to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as mentioned in Sec.7. Sub-clause (i) of Sec.13(1)(d) deals with a person obtaining for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means and sub-clause (ii) of Sec.13(1)(d) deals with any person abusing his position as a public servant obtaining for himself or for any other person any valuable thing or pecuniary advantage. A reading of the said provisions inform me that even if in respect of a lawful act if a public servant receives illegal gratification as above stated offence under Sec.7 and 13(2) of the Act is attracted. Hence it is idle for petitioner to contend that in the O.P(Crl.) No.446 of 2011 -: 5 :- light of Exts.P6 and P6(a), judgments of this Court and the finding that Patta issued in favour of the third accused is not fraudulent, no offence under Sec.7 and 13(2) of the Act is committed. 3. I have been taken through the statement of C.W.4 recorded by the Special Judge. She is the sister of the third accused. The statement of that witness that on the relevant day petitioner and the 4th accused came to the place where the third accused was staying, all of them talked over the issue of Patta (in favour of the third accused), third accused had shown some papers signed by one Xavier to the petitioner and petitioner offered to issue Patta to the third accused. Third accused gave Rs.10,000/- to the petitioner which petitioner received. A further sum of Rs.40,000/- was paid to the petitioner the following day. Learned counsel made an attempt to argue that there was no demand from the petitioner for any illegal gratification. 4. It has been held by the Supreme Court in State of M.P.v. Sheetla Sahai ([2009] 8 SCC 617) that to frame charge it is sufficient that there is strong suspicion. What is required to be considered at the time of framing charge is only O.P(Crl.) No.446 of 2011 -: 6 :- whether a case has been made out which if unrebutted would warrant conviction and a discharge is possible only when the Special Judge considers the charge to be groundless. I must bear in mind that the alleged transaction spoken by C.W.4 took place at the residence of the third accused where the petitioner had no business to be, in connection with his official duty of issuing Patta if at all it was lawful to issue Patta. Petitioner as alleged by C.W4 received Rs.10,000/- after the deliberations he had with accused Nos.3 and 4 and after he offered to issue the Patta to the third accused and in continuation of the said transaction, received the balance amount of Rs.40,000/- the following day. In the circumstances I am unable to accept argument of learned counsel at this stage that there was no demand, charge against the petitioner is groundless and hence he should have been discharged. 5. Nor is it a ground to discharge the petitioner that he is aged about 62 years. Law has to take its course and proceedings must have its logical conclusion. A premature termination of the proceeding against petitioner in the circumstances stated above is not warranted. O.P(Crl.) No.446 of 2011 -: 7 :- Original Petition is dismissed. But the Special Judge shall dispose of the case untrammelled by any observation or finding contained in this judgment. THOMAS P. JOSEPH, JUDGE. vsv