CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 Crl.Rev.Pet.No. 4078 of 2007(D) ------------------------------- CRMP.956/2007 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... REVN. PETITIONER: COMPLAINANT ----------------------------- ADVOCATE P.REHIM, KERALA STATE SECRETARY, INDIAN LAWYERS CONGRESS, THIRUVANANTHAPURAM. BY ADV. SRI.K.HARILAL SRI.R.GOPAN RESPONDENTS: COUNTER PETITIONERS -------------------------------- 1. BINOY VISWAM, MINISTER FOR FOREST AND WILD LIFE, KERALA STATE. 2. P.K.GURU DASAN, MINISTER FOR LABOUR AND EXCISE, KERALA STATE. 3. SEVI MANO MATHEW, S/O JOHN MATHEW, SOUTHERN FIELD VENTURES, VAZHUTHACADU. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY DIRECTOR GENERAL OF PROSECUTION SRI. P.G. THAMBI BY PUBLIC PROSECUTOR SRI.P.N. SUKUMARAN SRI.N.NANDAKUMARA MENON (SR.) FOR R2 SRI.P.K.MANOJKUMAR FOR R2 SMT.SUSHYA RAJAN FOR R2 SRI.V.M.KRISHNAKUMAR SRI.S.SANAL KUMAR FOR R3 SRI.C.V.BIMAL ROY FOR R3 SMT.LAKSHMI PRATHAPAN FOR R3 SMT.BHAVANA VELAYUDHAN FOR R3 SRI.T.KRISHNANUNNI (SR.) FOR R.1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2008, THE COURT ON 27/06/2008 PASSED THE FOLLOWING: ani/ V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 4078 of 2007 * * * * * * * * * * * * * * * * * * Dated: 27-06-2008 ORDER In this Revision filed under Section 397 read with Sec. 401 Cr.P.C. the revision petitioner who was the complainant in a private complaint filed as Crl.M.P. No. 956 of 2007 before the Enquiry Commissioner and Special Judge, Thiruvananthapuram, (hereinafter referred to as “the Special Judge” for short), alleging the commission of an offence under Sec. 13 (1)(d) and punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 and Sec. 120 B I.P.C, challenges the dismissal of the said complaint by the Special Judge. 2. I heard Adv. Sri. K. Harilal, the learned counsel appearing for the revision petitioner/complainant. At the stage of hearing on admission of this revision petition, I had heard Adv. Sri. P.G. Thampi, the learned Director General of Prosecutions. Now, at the stage of final hearing I also heard Adv. Sri. P.N. Sukumaran, the learned Public Prosecutor. Crl.R.P. No. 4078 of 2007 -:2:- 3. Eventhough in a revision against an order of rejection of a private complaint without taking cognizance, the accused have no right to be heard, since they were made as respondents 1 to 3 in this Revision and also since this Court had ordered notice in this Revision, I gave an opportunity of being heard to respondents 1 to 3 who were represented by Sr. Adv. Sri. Krishnan Unni, Sr. Adv. Sri. N. Nandakumara Menon and Adv. Sri. S. Sanal Kumar respectively. GRAVAMEN OF THE PRIVATE COMPLAINT The allegations in the complaint filed before the Special Judge by the revision petitioner are as follows:- The complainant is a social worker who is associated with activities for the betterment of the society and eradication of the evil of corruption in the public administration. The first accused (Binoy Viswam) is the Minister for Forest and Wild Life, Kerala State. The 2nd accused (P.K. Gurudasan) is the Minister for Labour and Excise. Both of them are public servants coming under the Prevention of Corruption Act, 1988. The 3rd accused (Sevi Mano Mathew) is a private person and is the Manging Director of Southern Field Ventures, Vazhuthacaud. As per Crl.R.P. No. 4078 of 2007 -:3:- notification dated 20-10-2000 an extent of 268.872 hectares of land called Merchiston Estate was declared as ecologically fragile land under Sec. 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000. The above land was an estate originally owned and possessed by the Birla Group. The Ordinance referred to above was subsequently replaced by an Act in the year 2005. By virtue of the aforesaid Ordinance the said estate vested in the Government. Knowing fully well that the land had vested in the Government as per the aforementioned notification dated 20-10-2000, the 3rd accused purchased the said land from the Birla Group on 30-3-2005. In response to a press publication given by the Indian Space Research Organization (ISRO) on 13-12-2006 the 3rd accused offered to sell 217 acres out of the said 268.872 hectares of land to the ISRO. On 3-2-2007 Rules under the Kerala Forest Vesting and Management of Ecologically Fragile Lands Act were published. During the intermittent period the 3rd accused had started felling and removing trees from the notified area and collecting timber for his personal benefit. The Palode Range Officer registered cases against him for cutting 68 trees. On 7-3- Crl.R.P. No. 4078 of 2007 -:4:- 2007 pursuant to the offer made by the 3rd accused an agreement was entered into between the 3rd accused and the ISRO for sale of the required area of land at the rate of Rs. 4 lakhs per acre. The validity of the said agreement was to be in force till 31-5-2007. The 3rd accused then managed to obtain a possession certificate from the Thennoor Village Officer on 19-4-2007 and paid tax for the said land on 19-4-2007. Thereafter, in order to enable the 3rd accused to get full marketable title over the said land which had vested in the Government and allegedly held by the 3rd accused, the three accused persons entered into a criminal conspiracy on a day in May 2007. In pursuance of the said conspiracy A1 and A2 jointly convened a meeting of the officers of the Forest Department on 16-5-2007 in the chambers of A1 on the pretext of settling a labour dispute in the estate of A3. On that day they took decisions enabling A3 to fell trees standing on the vested land and also enabling A3 to submit an application before the CFL Custodian for getting the vested land of 707 acres other than 23.7371 hectares released in his favour. True copy of the letter dated 19-6-2007 issued by the Deputy Secretary, Forest Department, enclosing the minutes of the decisions taken in the Crl.R.P. No. 4078 of 2007 -:5:- meeting held on 16-5-2007 is produced along with the complaint. Based on the above decision an ante-dated application was filed by the 3rd accused before the CFL Custodian and as per order dated 12-6-2007 the CFL Custodian passed proceedings de- notifying the said land in favour of the 3rd accused by-passing all other pending applications. True copy of the said proceedings is produced along with the complaint. A written request made by the Director of ISRO to the Revenue Minister for allotment of 100 acres of land for setting up Indian Institute of Space Technology had been turned down by the Government. While so, on 20-7- 2007 the 3rd accused sold 81.5 acres out of the above land to the ISRO for Rs. 3.26 crores. Thereafter the ISRO made a request to the Chief Minister of Kerala for clearance by de-notifying the above land so as to enable the 3rd accused to perfect the sale of land to the ISRO. All the above acts on the part of A1 to A3 were done pursuant to the aforesaid criminal conspiracy hatched for the purpose of enabling A3 to obtain pecuniary advantage to the extent of Rs. 3.26 crores by sale of 81.85 acres of land to ISRO. A1 to A3 have thereby committed offences under Sec. 13 (1)(d) punishable under Section 13 (1) (2) of the Prevention of Crl.R.P. No. 4078 of 2007 -:6:- Corruption Act, 1988 and Sec. 120 B of I.P.C. PRIVATE COMPLAINT REJECTED BY THE SPECIAL JUDGE 4. When the learned Special Judge took up the aforesaid complaint for consideration A1 entered appearance through an Advocate and filed an affidavit refuting the allegations. The Special Judge after hearing the learned counsel for the complainant, the learned counsel appearing for the first accused and the legal advisor representing the Vigilance Department, as per the impugned order dated 16-10-2007 rejected the complaint after holding that the case was not a fit one to order a preliminary enquiry by the Vigilance Department or to order investigation under Sec. 156 (3) Cr.P.C. It is the said order which is assailed in this Revision filed by the Revision Petitioner/complainant. ARGUMENTS OF THE REVISION PETITIONER 5. Adv. Sri. K. Harilal the learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- Crl.R.P. No. 4078 of 2007 -:7:- The entire extent of 268.872 hectares which is about 664 acres of land called the Mechiston Estate situated in Thennor Village belonged to the Birla Group. As per Section 3(1) of Ordinance 6/2000 the ownership and possession of the entire extent of 268.872 hectares vested in the State Government as an ecologically fragile land. The name of the said Ordinance is the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000. The Governor had re-promulgated three other Ordinances to keep alive Ordinance 6/2000 which was eventually replaced by the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (Act 21 of 2005) published on 8-6-2005 and which came into force with effect from 2-6-2000. Section 5 of the said Ordinance as well as the Act declares that ecologically fragile lands so vested in the State shall be deemed to be reserved forest constituted under the Kerala Forest Act, 1961 and shall be liable to be manged as such. It was nearly 5 years after the possession and ownership of the aforesaid land had vested in the Government that A3 purchased the said land from the Birla Group on 30-3-2005. As on 30-3-2005 the Birla Group had no ownership or possession Crl.R.P. No. 4078 of 2007 -:8:- over the said land in view of the Ordinance as well as the subsequent Act. On 13-12-2006 ISRO issued a newspaper publication calling for offers from property owners in Ponmudi area for 217 acres of land for the setting up of a Space Technology Institute. On 15-12-2006 the ISRO also wrote to the Revenue Minister for allotting 100 acres of land for establishing the Space Technology Institute. The District Collector, Thiruvananthapuram had sent a reply to ISRO stating that no land was available with the Government for allotment to the ISRO. On 7-3-2007, A3 entered into an agreement with ISRO for selling 217 acres out of 268.872 hectares of land at the rate of Rs. 4,00,000/- per acre. The validity of the agreement was till 31-5-2007. When, as on 2- 6-2000 the ownership and possession of the entire estate admeasuring 268.872 hectares had vested in the Government free from all encumbrances, neither Birla Group nor A3 had any ownership or possession over the land with effect from 2-6-2000. Hence the sale of the said land by Birla Group to A3 on 30-3-2005 was null and void. Likewise, the agreement for sale of 217 acres from out of the above total extent by A3 to ISRO on 7-3-2007 was also null and void. It was by corrupt means that A3 obtained a Crl.R.P. No. 4078 of 2007 -:9:- possession certificate from the Village Officer, Thennoor on 19-4- 2007 in respect of the 268.872 hectares of land. Realising that the land purchased by him from the Birla Group was taken in by Ordinance 6/2000, A3 entered into a criminal conspiracy with the two Ministers A1 and A2 for the purpose of regularising and perfecting his title over the said land. Under the guise of settling a labour dispute in the estate of A3, a meeting was held in the Chambers of A1, the Forest Minister. The persons who attended the meeting were: i) A1, the Forest Minister, ii) A2, the Labour Minister iii) A3, Savy Mano Mathew, iv) A. Alexander v) K. Abbas, representing C.I.T.U. Union vi) Patric Gomas (DFO, Thiruvananthapuram) vii) N. Sukumaran, Addl. Forest Secretary viii) K.J. Varghese, Forest Conservator, Southern Circle, Kollam and ix) C.V. Bimal Roy, Advocate, Vanchiyoor representing the 3rd accused. In that meeting four vital decisions were taken as follows:- Crl.R.P. No. 4078 of 2007 -:10:- i) The estate owner shall not cut trees or carry on any activities in the 23.7371 hectares of land included as ecologically fragile land and which has been in the dominion of the Forest Department from the year 1971 onwards. ii) It is permissible to the estate owner to cut trees for the purpose of firewood from the land in his possession for the running of the estate. However, the firewood shall not be taken out of the estate under any circumstance. iii) The estate owner will have to submit application as per rules to the EFL Custodian for de-notifying the ecologically fragile lands other than the 23.7371 hectares. iv) After obtaining the previous permission of the EFL Custodian trees can be cut from the land in the possession of the estate owner for the purpose of attending to the maintenance and repair works of the labourers' quarters in the estate. The effect of decision No. (i) is that A3 the Estate owner was allowed to cut trees from the entire ecologically fragile land other than 23.7371 hectares. In other words, by allowing A3 to cut trees from the ecologically fragile lands which had been declared as reserved forest, A3 was indirectly allowed to commit an Crl.R.P. No. 4078 of 2007 -:11:- offence under Sec. 27 of the Kerala Forest Act and A1 and A2 were abettors to the said offence by virtue of Sec. 84 of the said Act. The effect of the second decision taken was also for enabling A3 the estate owner to cut trees for firewood which will also amount to the aofrementioned offences under the Kerala Forest Act. By taking decision No. (iii) as above A3 who had no ownership or possession over the entire land was recognised as the owner by A1 and A2 and A3 was permitted to apply for de- notification. Under R.17 of the EFL Rules an owner having a right of possession alone can apply for de-notification and his application in that behalf should be accompanied by the necessary documents of title. A1 and A2 thus ratified the illegal purchase of land by A3 on 30-3-2005 from the Birla Group. The 4th decision taken was also in violation of the provisions of the Kerala Forest Act and giving undue pecuniary advantage to A3. It is pertinent to note that if it was a genuine labour problem as was attempted to be projected, then the meeting would have been piloted by the Labour Department. But nobody from the Labour Department participated in the meeting. So, the excuse that it was a labour problem was merely a cloak. Eventhough the Conservator of Crl.R.P. No. 4078 of 2007 -:12:- Forests had informed during the meeting that A3 had illegally cut 68 trees from the land justifying the registration of criminal cases against him, the intervention of the Ministers (A1 and A2) was sought by A3 only to see that the cases registered against him were withdrawn. Thus, A3 was being allowed pecuniary advantage by A1 and A2 by abusing their position as Ministers within the meaning of Sec. 13 (1) (d) of the P.C. Act. When one of the decisions taken was that A3 should apply to the Custodian for de-notification, Annexure F proceedings of the Custodian would show that A3 had already applied for de-notification on 30-3- 2007 that is, much before the meeting dated 16-5-2007. This must have been an ante-dated application subsequently submitted by A3. This conclusion is reinforced by the fact that Annexure F proceedings of the Custodian shows that the designated committee submitted its report only on 24-5-2007. Rule 18(2) of the E.F.L. Rules specifies a time limit of one month for filing of the report by the designated committee. If A3 had applied for de- notification on 30-3-2007 as is contended by him, the designated committees' report should have been filed on or before 30-4- 2007. But the very fact that the report was filed only on 24-5- Crl.R.P. No. 4078 of 2007 -:13:- 2007 will indicate that the so called application dated 30-3-2007 filed by A3 is an ante-dated application. Annexure F proceedings of the Custodian will show that the designated committee visited only 24.409 hectares of land and that too on one single day. Annexure F proceedings further shows that the committee filed its report before the Custodian with a recommendation by the Conservator of Forests who was none other than Varghese who had earlier submitted during the meeting on 16.5.2007 that the entire land was ecologically fragile land. He was making a recommendation in favour of de-notifying the land without any enabling provision either in the E.F.L. Act or in the Rules for such recommendation. Within 25 days of receipt of the report of the committee the Custodian issued orders on 12-6-2007 de-notifying the entire property excluding 24.409 hectares of land. Subsequently on 20-7-2007 even before the issuance of a revised notification A3 sold to ISRO 81.5 acres of land which was the subject matter of the agreement for sale dated 7-3-2007. The sale was for Rs. 3.26 crores. The very fact that on 8-1-2008 the Government have re-called the order dated 12-6-2007 passed by the Custodian for de-notification of the ecologically fragile land in Crl.R.P. No. 4078 of 2007 -:14:- question will show that the property was validly included in the notification dated 20-10-2000 as an ecologically fragile land and was not eligible for de-notification. The learned Special Judge has approached the complaint as if he was searching for some material to connect A1 and A2. For taking cognizance of an offence under Sec. 190 Cr.P.C., a complaint constituting the offence alone is sufficient. The Special Judge seems to have been more concerned about the stigma that might be caused to A1 and A2 who are Ministers. Cognizance is taken of the offence and not the offender and therefore the social status of the accused is irrelevant. The Special Judge has proceeded as though the allegations in the complaint should have the likelihood of being proved. It is well settled that it is not open to the court to sift the materials for considering whether an offence has been made out or not. After having admitted that there was a clandestine land deal by A3 involving the Revenue and Forest officials the Special Judge has observed that no ill-will or bad motive could be attributed to A1 and A2 since the decisions taken were without any concealment and in a transparent manner and further that there was no material to indicate the criminal conspiracy alleged. Crl.R.P. No. 4078 of 2007 -:15:- It is impossible to get direct evidence of criminal conspiracy which can only be inferred from the circumstances of the case. Absence of criminal conspiracy cannot be spelt out by merely reading the complaint. Such considerations were not germane at the stage of taking cognizance of the offence which is otherwise made out from the averments in the complaint. An accused person does not come into the picture at all until process is issued. Eventhough he is not precluded from being present when an enquiry is held by the Magistrate, his presence either physical or through a counsel or an agent can only be with a view to be informed of what is going on. He has no right to take part in the proceedings. (See Chandra Deo Singh v. Prakash Chandra Bose - AIR 1963 SC 1430 and Sashi Jena v. Khadal Swain - 2004 (4) SCC 236). At the time of taking cognizance of the offence the court has to consider only the averments made in the complaint or in the charge-sheet filed under Sec. 173 Cr.P.C., as the case may be. It is not open to the court to sift or appreciate the evidence at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. (See Reshmi Kumar v. Mahesh Kumar Bhada - (1997) 2 SCC Crl.R.P. No. 4078 of 2007 -:16:- 397) . An enquiry under Section 202 Cr.P.C. is not in the nature of a trial since a trial can commence only after process is issued to the accused. The proceedings under Sec. 202 Cr.P.C. are not strictly proceedings between the complainant and the accused. (Dr. S.S. Khanna v. Chief Secretary, Patna and another - (1983) 3 SCC 42). At the stage of consideration of the private complaint the court is not expected to see whether the allegations are likely to be proved by the materials produced before court. (See Sreekumar S. Menon v. State of Kerala - 2004 (2) KLT 53). After deciding the question as to whether a prima facie case has been made out in an enquiry under Sec. 202 Cr.P.C. the consideration should be from the point of view of the complainant without adverting to any defence which the accused may have. At that stage the accused has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. (See Smt. Nagawwa v. Veeranna Sivalingappa - AIR 1976 SC 1947). If a public servant causes wrongful loss to the Government for benefiting a 3rd party it amounts to abuse of power within the meaning of Sec. 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Sec. Crl.R.P. No. 4078 of 2007 -:17:- 13 (1)(d) of the Prevention of Corruption Act, 1988. The learned Special Judge committed a patent illegality by allowing the first accused to be represented by a lawyer and permitting an affidavit to be filed by the first accused. Until process is issued to the accused, the person shown as the counter petitioner in the complaint does not have the status of an accused and has no right of audience before the trial court or before a superior Court at the pre-process stage. [Somu alias Somasundaram and others v. The State and another - 1985 Crl.L.J. 1309 (Madras) and Sivasankar v. Santhakumari - 1993 (1) KLT (Madras)]. JUDICIAL RESOLUTION 6. I am afraid that I find myself unable to agree with the above submissions. 7. Certain aspects of the matter can be taken judicial notice of by this Court. The Kerala Forest (Vesting and Management of Ecologically Fragile Land Act, 2003 (hereinafter referred to as “the EFL Act” for short) was preceded by 4 Ordinances. The first of the Ordinances namely, Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Crl.R.P. No. 4078 of 2007 -:18:- Ordinance, 2000 (Ordinance 6 of 2000) was promulgated by the Governor on 1/6/2000 and it was published in the Kerala Gazette (Extraordinary) on 2-6-2000. This Ordinance , therefore, came into force on 2-6-2000. As per Section 3 (1) of the said Ordinance the ownership and possession of ecologically fragile lands as defined in clause (i) of Sec. 2(b) of the Act were to automatically vest in the Government with effect from 2-6-2000 without any notification in that behalf. As per Sec. 4(4) of the said Ordinance the ownership and possession of all ecologically fragile lands as defined under clause (ii) of Sec. 2 (b) of the said Act would vest in the Government with effect from the date of declaration of such ecologically fragile lands by a notification issued in the gazette by the government as provided under Sec. 4(1) of the said Ordinance on the recommendation of an Advisory Committee constituted under Section 15 thereof. Thus, while the vesting of Ecologically Fragile lands under Sec. 3 (i) is automatic with the passing of the Ordinance itself, the vesting of ecologically fragile lands under Sec. 4(4) of the said Ordinance is only after declaration of such such lands by the Government by means of a notification on the recommendation of an advisory committee. As mentioned earlier, Crl.R.P. No. 4078 of 2007 -:19:- eventhough no notification is contemplated for the vesting of ecologically fragile lands under Sec. 3(1) of the Ordinance, a notification dated 20-10-2000 and published in the Kerala Gazetted dated 2-1-2001 was in fact issued