IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 152 of 2006() ------------------------ AGAINST THE ORDER DATED 14/09/2004 IN CMP.1131/03 IN CC.16/2002 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR .................... PETITIONER: RESPONDENT ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM(SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, THRISSUR) BY SPL.GOVT.PLEADER SHRI P.N.SUKUMARAN RESPONDENT: PETITIONER ----------------------------- DR.A.RAJAN, S/O.KUNJIKANNAN, AYILLATH HOSUE, BLOCK ROAD, OLLUKKARA DESOM AND VILLAGE, THRISSUR. ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.3.2009, THE COURT ON 03/04/2009 PASSED THE FOLLOWING: M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.152 OF 2006 ----------------------------------------------------- DATED THIS THE 3rd DAY OF APRIL, 2009 O R D E R This petition is filed by the petitioner-State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam (Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur) against the order dated 14.9.2004 in C.M.P.No.1131/03 in C.C.No.16/2002, VC No.4/97 of VACB, Thrissur, whereby accused 1 and 2 were discharged by the Enquiry Commissioner and Special Judge, Thrissur. The respondent is the accused in V.C.No.4/97 of Vigilance and Anti Corruption Bureau, Thrissur. He was charge sheeted by the Deputy Superintendent of Police, VACB, Thrissur, for the offences punishable under section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and under Section 120B IPC. 2. The statement of facts alleged in this petition are as follows: The respondent, while working as the Dean of College of Veterinary and Animal Science, Mannuthy issued purchase order dated 7.3.1995 to M/s Asceptis Systems, Coimbatore for the CRL.M.C.No.152/06 -2- supply of incinerator of 100 Kg capacity. The 2nd accused is the proprietor of the said firm. The 2nd accused accepted the purchase order and an agreement was executed on 1.6.1995 by him for the supply of incinerator on the conditions stipulated in the agreement. Among other conditions, it was agreed that the payment of the machinery will be effected only after satisfactory installation of the machine and satisfactory demonstration of the same. Subsequently, the first accused conspired with the 2nd accused and as a result of the conspiracy the first accused effected payment of Rs.1,87,500/- by way of cheque dated 28.6.2005 being 75% of the cost of the machinery. The 2nd accused failed to demonstrate the smooth functioning of the machine and thereby he had obtained undue pecuniary advantage of Rs.1,87,500/- and resulted loss of the said amount to the Kerala Agricultural University. It is alleged that the 1st accused abused his position as a public servant for obtaining pecuniary advantage for himself and for the 2nd accused and hence, the accused 1 and 2 have committed the offence alleged by the prosecution. 3. The first accused submitted C.M.P.No.1131/03 praying for discharge of the case against him. Both sides were heard by the learned Special Judge. The learned Special Judge came to the CRL.M.C.No.152/06 -3- conclusion that the agreement dated 1.6.1995 does not disclose any material to show that the 1st accused did anything to defeat the interest of the University and thereby to cause any unnecessary pecuniary loss to the University. It was also found that there are no grounds available on record for framing charge against accused 1 and 2 and that there are no materials on record to support the prosecution case for proceeding against the accused. Therefore, accused 1 and 2 were discharged under Section 239 Cr.P.C. Certified copy of that order is produced as Annexure I. 4. Aggrieved by the order dated 14.9.2004, this petition is filed by the petitioner-State of Kerala, under Section 482 of Cr.P.C. with the prayer to set aside Annexure I order. 5. Heard the learned Public Prosecutor and also the learned counsel for the respondent. 6. It is argued by the learned Public Prosecutor that the 1st accused is the Chairman of the Store Purchase Committee and the prosecution case is that the 1st accused has taken an arbitrary decision for purchasing the incinerator in conspiracy with the 2nd accused and the reasons stated by the learned Special Judge for discharging both accused under Section 239 of Cr.P.C. are not based on sound reasons. CRL.M.C.No.152/06 -4- According to the learned Public Prosecutor, in the present case the Investigators have collected evidence which are sufficient to establish a prima facie case against the accused to proceed against them. 7. The prayer in this petition is opposed by the learned counsel appearing for the respondent and submitted that this petition filed under Section 482 of Cr.P.C. is not maintainable and the proper remedy of the petitioner is to file a revision petition, which should be filed within 90 days of the date of order. Accordingly, the time for filing the revision petition had expired on 14.12.2004. Subsequently, this petition is filed on 13.1.2006 under Section 482 of Cr.P.C. which is not maintainable and is liable to be dismissed in limine. 8. In the light of the argument advanced by the learned counsel for the respondent, I am not entering into the merits of the case. It is the specific case of the petitioner/State of Kerala that the reasons stated by the learned Special Judge for discharging accused 1 and 2 under Section 239 of Cr.P.C. are not based on correct facts of the case and the discussions made in the impugned order would reveal that the learned Special Judge has not properly considered the evidence collected by the Investigators in this case and has casually evaluated the same. On that basis, the present petition is filed under CRL.M.C.No.152/06 -5- Section 482 of Cr.P.C. after the lapse of 1 year and 4 months with the specific contention that the prosecution has collected evidence which are sufficient to establish a prima facie case against accused 1 and 2 and that the evidence collected by the Investigating Agency are sufficient to establish the guilt of the accused as alleged by the prosecution. Thus, it is evident that the State of Kerala is challenging the finding of the learned Enquiry Commissioner and Special Judge, whereby accused 1 and 2 were discharged under Section 239 of Cr.P.C., as per order dated 14.9.2004. 9. The extraordinary power under section 482 of Cr.P.C. has to be exercised sparingly and should not be resorted to like remedy of appeal or revision. It is well settled that the inherent power under section 482 of Cr.P.C. can be exercised only when no other remedy is available to the litigant and no where a specific remedy is provided by the Statute. Where the aggrieved party has equally efficacious alternative remedy under law, such extraordinary powers need not and should not be invoked by this Court. Extraordinary situations may call for extraordinary responses and it is only under such circumstances that this court would be justified in invoking the powers under Section 482 of Cr.P.C. In the present case, the petitioner-State of Kerala has CRL.M.C.No.152/06 -6- got a specific remedy of filing the revision petition. Even though they are aggrieved by the impugned order, which was passed on 14.9.2004, without resorting to that remedy, the present petition is filed after the lapse of 1 year and 4 months, for the reason that the revision would be barred by limitation. Rule of law and the procedure to be complied with under the Code of Criminal Procedure is applicable to all parties including the State of Kerala. No privilege can be given to the State of Kerala being the prosecuting agency, in the present case. Where remedies are otherwise available under the ordinary provisions of the Code resort to such extraordinary inherent jurisdiction will not be justified, unless exceptional circumstances of a given case warrant invocation of such powers in the interests of justice. 10. The specific finding of the Special Judge as per the impugned order is that even after perusal of the evidence available on record, there are no materials for establishing a prima face case against the accused and that no loss is caused to the University by the conduct of the accused. On a perusal of the impugned order, I find that it was passed by the learned Special Judge after considering the evidence collected by the Investigators(regarding the facts of the case) in its correct perspective, which cannot be interfered by this Court by CRL.M.C.No.152/06 -7- exercising the extraordinary inherent jurisdiction as envisaged under Section 482 of Cr.P.C. 11. According to the learned Public Prosecutor, only the first accused has filed an application for discharge and in that petition, the second accused was also discharged. On a perusal of the order, it is evident that the Special Judge has considered the evidence collected by the Investigators in the present case and since the case against the first accused was not well founded, the case against second accused also will not stand and both accused were discharged. 12. The learned Special Judge has considered the totality of evidence collected by the Investigators in the present case and found that there is no prima face case to proceed against both the accused and they were discharged. Considering the facts and circumstances of this case, I find that there is no merit in this petition and is liable to be dismissed. In the result, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn