IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Crl.MC.No. 2892 of 2008() ------------------------------------- C.C.46/2004, C.C.47/2004, C.C.48/2004, C.C.49/2004, C.C.50/2004, C.C.51/2004, C.C.52/2004, C.C.55/2004 AND C.C.56/2004 OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, TRIVANDRUM. ................... PETITIONERS/ACCUSED: ------------------------------------- 1. R. KARUNAKARAN , S/O.RAMAN, AGED 68 YEARS KRISHNA NIVAS, ASHRAMAM WARD, AVALOOKUNNU P.O. ALAPPUZHA- 688 006. FORMERLY VILLAGE OFFICER KAINAKARY NORTH 2. M. SOMAN, AGED 61 YEARS 'KALPANA', KUNNAMKARI PO, VIA CHANGANASSERI ALAPPUZHA- 686 102, FORMERLY VILLAGE OFFICER NEDUMUDY. 3. MATHEW CHACKO, S/O.MATHEW, AGED 69 YEARS MATTAPALLY, KUNTHIRICAL P.O., THALAVADI ALAPPUZHA- 689 575, FORMERLY VILLAGE OFFICER THAKAZHY 4. V.T. DEVASIA, S/O.THOMAS AGED 65 YEARS, VAIPPICHERRY, VAZHAPPALLY CHANGANASSERI, KOTTAYAM- 686 103 FORMERLY VILLAGE OFFICER EDATHUA. 5. K. PANKAJAKSHAN, S/O.KESAVAN, AGED 65 YEARS, KARRISERIL, EDATHUA TOWN P.O. ALAPPUZHA- 689 573, FORMERLY VILLAGE OFFICER, THALAVADY. 6. A. UNNIKRISHNAN NAIR, AGED 65 YEARS S/O.ACHUTHAN NAIR, CHITTADITHARA, AMICHAKARI CHAMBAKULAM PO., ALAPPUZHA- 688 505 FORMERLY VILLAGE OFFICER, MUTTAR. 7. T.K. GOPI, S/O.KUNJAN, AGED 58 YEARS VILANJOOR HOUSE, NADVILEMURI ,THALAVADI PO ALAPPUZHA- 689 572, FORMERLY VILLAGE OFFICER, MUTTAR. 8. M.G. MATHEW, S/O. GEEVARGESE, AGED 67 YEARS, MAPPILA VEETTIL BENGALA AYINIVELIKULANGARA SOUTH, S.V.M. P.O. KARUNAGAPPALLY, KOLLAM- 690 573, FORMERLY VILLAGE OFFICER, PULINKUNNU. Crl.MC.No. 2892 of 2008 9. A.V. RAVEENDRAN NAIR, AGED 64 YEARS S/O.VELAYUTHAN NAIR, SANNIDHANAM, THANNEER MUKAM P.O, ALAPPUZHA- 688 527, FORMERLY VILLAGE OFFICER ,NEELAMPEROOR. BY ADV. MR.K.V.SOHAN, SMT.SREEJA SOHAN, MR.VINEETH KURIAKOSE. RESPONDENTS/STATE: ----------------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION, ALAPPUZHA DISTRICT 2. THE DISTRICT COLLECTOR ALAPPUZHA. 3. STATE OF KERALA REP. BY ITS SECRETARY REVENUE DEPARTMENT, TRIVANDRUM. R1 TO R3 BY PUBLIC PROSECUTOR MR.B. VINOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON 24/02/2010 PASSED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2892 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2010. ORDER in this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners seek to have all further proceedings pursuant to Annexures A8 to A16 quashed. 2. The petitioners were working in Village offices of various Panchayats in Alappuzha District during 1994 July. They had engaged in rescue operations in an unprecedented flood that occurred in that year. The second respondent issued orders to take immediate steps to ameliorate the agonies of the victims. The copy of the order is produced as Annexure 1. The Tahsildar, as per the orders of the District Collector sought to implement the directions through the Village Officers including the petitioners. About 2000 families had to be evacuated and they had to be provided shelters and food had also to be made available to them. All this Crl.M.C.2892/2008. 2 were implemented under the supervision of the District Collector as well as the Tahsildar. Copy of the report submitted to the District Collector is produced as Annexure 2. It seems that later complaints were raised from several quarters regarding the misappropriation of the funds allotted for relief operation and misutilization. Papers flashed the news. It appears that a vigilance case as Case No.1 of 1998 under Sections 468, 471 and 477A read with Section 120 IPC and Section 13(1)(c) and (d) of the Prevention of Corruption Act was registered by the Deputy Superintendent of Police. The copy of the FIR is produced as Annexure 3. 3. Petitioners point out that prior to the registration of the FIR, one P.N. Venugopal of Alappuzha had filed a writ petition as O.P.10393 of 1996 complaining about the illegalities and irregularities committed in the distribution of relief etc to the flood affected victims. This court by Annexure 4 judgment directed the State to conduct an enquiry into the matter and to consider whether a vigilance enquiry is necessary. Petitioners point out that a Crl.M.C.2892/2008. 3 detail enquiry was conducted by the RDO, Alappuzha as per the direction issued by the District Collector and Annexure 5 report was filed. In the said report, it is observed as follows: “After careful consideration of the evidences produced before me, I find that the allegations made out in the Desabhimani Daily in the article published on 23.8.1995, 24.8.1995 and 25.8.1995 and in the O.P.10393/96 filed before the Hon'ble High Court have not been proved. I do not consider it necessary to have a further detailed departmental or vigilance enquiry in the matter. ” The first respondent on receipt of the relevant report has issued Annexure 6 communication. In the meanwhile, the Vigilance Department went on with its enquiry and as a result of which, the FIR was registered. The Vigilance Department without giving heed to the decision of the Government to drop the proceedings went on with the investigation and submitted a final report, which is marked as Annexure 7. Charge sheet was framed and the offences were taken cognizance of by the Enquiry Commissioner and Crl.M.C.2892/2008. 4 special Judge, Thiruvananthapuram and a single charge has been framed against petitioners 1 to 9, which are marked as Annexures 8 to 16. 4. The complaint of the petitioners is that the enquiry and investigation by the Vigilance department in the light of the fact that the Government has decided to drop the proceedings is without sanction and non-est. They would point out that it was the Government, who had to decide whether vigilance enquiry is necessary. A detailed enquiry was conducted and it was thereafter the Government had come to the conclusion that it was unnecessary to have the vigilance enquiry. The Vigilance Department, which is the limb of the Government has no right thereafter to go on with the investigation and enquiry and they should have dropped the proceedings. Consequently, it is pointed out that the filing of the final report and consequent taking of cognizance are all bad in law. Crl.M.C.2892/2008. 5 5. Per contra, learned counsel appearing for the first respondent supported the vigilance enquiry. It was pointed out by him that departmental enquiry and vigilance enquiry are two different matters and merely because the departmental proceedings are dropped, it does not mean the vigilance enquiry has to come to an end. There is no communication from the State to the Vigilance Department to drop the proceedings. It was also pointed out that once the Vigilance department has taken a case on file, they are bound to investigate the same and proceed in accordance with law. None can interdict them in the course of action. That was precisely what has been done in the present case. It is also contended that it is not possible to accept the findings in departmental enquiry, because in the vigilance enquiry it was found to be otherwise. Therefore, it is contended that no grounds are made out to interfere with Annexures A8 to A16. Crl.M.C.2892/2008. 6 6. It does not appear that the contentions now taken by the petitioners before this court have been urged before the court below. Annexures A8 to A16 are charges framed against the petitioners. Before going further, one aspect needs to be noticed. As far as the seventh petitioner is concerned, he is still in service and it is pointed out that it was the Commissioner of Revenue, who is the authority to grant sanction and the sanction given by the District Collector is non-est. This point also does not seem to have been urged before the court below. The present case of the petitioners is that once it was found by the Government that the enquiry was unnecessary, it was not within the powers of the Vigilance Department to go on with the investigation. It is contended that the Vigilance Department has no overriding powers of the State and it is bound by the decisions taken by the State. 7. As already noticed, none of these grounds seen to have been urged before the court below. The court below had no occasion to consider these aspects. There may be Crl.M.C.2892/2008. 7 some substance in the contention of the petitioners that since the Government had decided that there is no need to go on with the vigilance enquiry, the enquiry by the Vigilance Department ought not to have continued. But powers and duties of the Vigilance Department vis a vis the State is a matter for consideration. How far the decision of the State Government to drop further proceedings against the petitioners in view of the detailed report submitted by the District Collector and also not to embark upon the vigilance enquiry can bind the Vigilance Department, which has already set the law in motion is a matter for determination. It is true that the charge has been framed. But these are certain fundamental aspects, which affect the case. So also the question as to whether the sanction given in relation to the seventh petitioner is valid or not can be raised at any time. But it is a question regarding the jurisdiction of the authority which granted sanction to take cognizance of the offence against that accused. The petitioners also have a case that the filing of final report was Crl.M.C.2892/2008. 8 deliberately delayed to avoid seeking sanction under Section 19 of the Prevention of Corruption Act. The acts of Vigilance Department therefore lack credence. 8. It is therefore thought fit and proper that the whole issue be determined by the court which considers the matter, since none of the grounds had been urged before that court. Therefore, this petition is disposed of giving liberty to the petitioners to agitate all their contentions before the court below in appropriate proceedings. If so agitated, the court below shall determine the issues in accordance with law and in the light of what has been stated above. P. BHAVADASAN, JUDGE sb.