IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 Crl.Rev.Pet.No. 1606 of 2010() ------------------------------ AGAINST THE ORDER DATED 29.8.2009 IN CMP 2933/2008 IN CC.31/2005 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... REVN. PETITIONER(S): REVISION PETITIONER/PETITIONER/IST ACCUSED --------------------------------------------------------------- R.RAMACHANDRAN NAIR,FORMER VICE CHANCELLOR OF SRE SANKARA UNIVERSITY OF SANSKRIT, KALADY, FORMERLY CHIEF SECRETARY TO GOVERNMENT OF KERALA. BY ADV. SRI.SANTHARAM.P RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- 1. THE DY.S.P.,VIGILANCE POLICE,ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI B. VINOD THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/6/2010, THE COURT ON 12/7/2010 PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No.1606 of 2010 ---------------------------------------- Dated the 12th day of July, 2010 ORDER The first accused in C.C.No.31 of 2005 in the court of the Enquiry Commissioner and Special Judge, Thrissur preferred this Crl.R.P as he is aggrieved by the order dated 29.8.2009 in CMP No.2933 of 2008 by which the learned Special Judge dismissed his petition filed under section 239 of Cr.P.C for discharging him in the above case. 2. The revision petitioner who is the former Vice Chancellor of Sree Sankara University of Sanskrit, Kalady and other accused were charge sheeted for the offences punishable under sections 13(1) (d) and 13(2) of the Prevention of corruption Act, 1988 and also under Sections 409, 468, 477A and 120B of IPC. The above case was instituted on the basis of report filed by the Deputy Superintendent of Police, V.A.C.B, Ernakulam in crime No.9/1996. The allegation in the above case is that, filling of earth in the land acquired for Sree Sankara University CRL.R.P. 1606/10 -:2:- of Sanskrit, Kalady in a most perfunctory and irregular manner with ulterior motive by not recording the measurement in the records, and thereby A1 to A5 criminally conspired together and wilfully committed falsification of accounts and forgery, criminal breach of trust and cheated the Government by corrupt or illegal means and committed misconduct, obtained undue pecuniary advantage of Rs.2,68,358/- and thereby, the accused including the revision petitioner who is the first accused, have committed offences punishable under section 13(1)(d) and 13(2) of IPC and Sections 409, 468, 477A & 120B of IPC. 3. It is in the above case, the petitioner moved CMP No.2933/2008 under section 239 Cr.P.C for his discharge from the above case. The learned Special Judge found that the allegations in the charge sheet and documents produced would reveal that there is a prima facie case against the revision petitioner/Ist accused that his acts and omissions were done not in good faith. According to the learned Special Judge, the revision petitioner had acted not according to CRL.R.P. 1606/10 -:3:- any Statute or Procedures, Rules or Orders established so as to get any protection. Thus on such factual finding, the learned Sessions Judge concluded that the revision petitioner is not entitled to get the protection under section 50 of the Sree Sankaracharya University of Sanskrit Act, 1994, and accordingly, the said Petition was dismissed. In the above revision petition, the revision petitioner has subsequently filed Crl.M.A.No.5208/10 producing two documents namely, Annexure-1 and Annexure-2, with a prayer to receive those documents in this Crl.R.P. 4. I have heard Sri P.Santharam, the learned counsel appearing for the revision petitioner. 5. The learned counsel vehemently argued that the order impugned is liable to be set aside as the Special Court has miserably failed to consider the scope of Section 50 of the Act, especially, the petitioner has not misused his official position and all his acts were in good faith as the Vice Chancellor of the said University. It is also the contention that the Government has already accord sanction CRL.R.P. 1606/10 -:4:- as evidenced by Annexure-1 to withdraw the prosecution. The additional Legal Advisor appeared in the court did not act upon Government instructions and therefore, according to the learned counsel, the order impugned is liable to be set aside. 6. At the outset, it is to be noted that the present revision petitioner approached this Court in an earlier occasion by invoking the writ jurisdiction of this court under article 226 of the Constitution of India and filed WPC No. 2366 of 2009 on the ground that the allegations in the above case is totally unjustified and they are groundless and according to the petitioner, he is entitled to have the proceedings against him discontinued at an earlier stage. As evidenced by Annexure 2, though the case was heard extensively, and this Court was not inclined to grant the releif sought as such, and the writ petition was disposed of by this Court with a direction to the learned Special Judge, Thrichur to consider the plea of the petitioner for discharge in C.C.No.31 of 2005 as expeditiously as possible, within a CRL.R.P. 1606/10 -:5:- period of 3 months from the date of receipt of copy of the judgment. As discernible from the order impugned, the learned Special Judge has considered the petition moved by the revision petitioner in the light of the direction contained in the judgment of this court in WPC No. 2366/2009. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner and also perused the order of the court below and other documents produced by the revision petitioner. Section 50 of the University Act reads: “Section 50:- Protection of acts done in good faith – (1) Acts and orders duly and in good faith done and passed by the University or any authority or body of the University shall be final and no suit shall be instituted against or damage claimed from the University or any authority, or body for anything done or purported to be done in pursuance of this Act, the Statutes, the Ordinance and the Regulations. (2) No suit, prosecution or other proceedings shall lie against any officer or other employee of the University for any act done purported to have been done under this Act or the Statutes or the Ordinances or the Regulations without the previous CRL.R.P. 1606/10 -:6:- sanction of the Syndicate. (3) No officer or other employee of the University shall be liable in respect of any such act in any civil or criminal proceedings if the act was done in good faith and in the course of the execution of the duties or in the discharge of the functions imposed by or under this Act.” In the impugned order, the learned Special Judge has specifically found that the allegations in the charge sheet and the documents produced reveal that there is a prima facie case against the revision petitioner and his acts and omissions were not done in good faith and the act of the revision petitioner was not in accordance with any law. In the light of the above observations and findings of the courts below, and on consideration of the fervent plea raised by the revision petitioner for a discharge, the question to be considered is whether the court below has justified in dismissing the petition filed by the revision petitioner for his discharge from the above case. Many of the contentions taken in this Crl. R.P and reiterated by the counsel for the CRL.R.P. 1606/10 -:7:- revision petitioner, are based upon pure facts and materials which are yet to be considered by the trial court. On the basis of the materials produced by the investigating agency, the trial court has, after perusal of such materials and documents, found that there is prima facie case against the revision petitioner and there is no justification for this Court to interfere with such a prima facie finding of the court on facts. According to the learned Special Judge the petitioner was a public servant, though retired from service, by virtue of Section 2 (c)xi) of the Prevention of Corruption Act, 1988. However, the contention of the learned counsel is that the petitioner is an officer as defined under section 2(k) of the above Act and according to section 23(i) of the Act, Vice Chancellor is the Officer of the University but the allegation raised against the petitioner is serious in nature and the alleged offences were committed connected with the filing of earth in the land acquired for the University. As indicated in Section 50, the protection contemplated by the provisions therein will get only with respect to the acts done in good CRL.R.P. 1606/10 -:8:- faith. In the present case, the allegation against the revision petitioner is that he had committed the offence while he was discharging the function of a public servant by abusing his official position. The protection given is only for the officer of the University and if the same are done in good faith. As the court below has already found that there is prima facie case against the revision petitioner that his acts and omissions were not in good faith, I find no reason to interfere with the order of the court of Enquiry Commissioner and special Judge. It is also discernible from the order that the additional Legal Advisor submitted in the court that he has not filed any petition for withdrawing the case, though the Government had issued a communication vide letter No.9575/B1/05/VIG., dated 03.04.2006. So far, no such petition is filed and therefore, though the petitioner is very much relied upon Annexure A1, in the absence of any properly framed and filed petition before the court below , the petitioner cannot press for the benefit of the said order and the court below cannot pass such an order. CRL.R.P. 1606/10 -:9:- In the light of the above facts and discussions and materials referred above, I am of the view that there is no merit in the Crl.R.P and the same is liable to be dismissed. However, the court of Enquiry Commissioner and special Judge, Thrissur is directed to expedite the trial of the case subjected to the convenience and workload of the court, since C.C.No.31/2005 is pertained to the year 2005. Subject to the above direction, this Crl.R.P is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.R.P. 1606/10 -:10:- O.P.No. JUDGMENT Dated:..