IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 5682 of 2009(Q) ---------------------------------------- PETITIONER(S): ---------------------- 1. T.C.MATHEW, AGED 45, S/O.T.V.CHACKO, HONORARY SECRETARY, KERALA CRICKET ASSOCIATION, KCA COMPLEX, THYCADU, THIRUVANANTHAPURAM-695 014. 2. T.R.BALAKRISHNAN, AGED 54, S/O.T.V.RAMAKRISHNAN, ADVOCATE, SULTANBATTERY, WAYNAD, PRESIDENT, KERALA CRICKET ASSOCIATION, KCA COMPLEX, THYCADU, THIRUVANANTHAPURAM-695014. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE BY ADVS.MR.ALAN PAPALI MR.G.SHRIKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, ERNAKULAM. 4. BALAJI IYENGAR, CHARTERED ACCOUNTANT, RANGAMANI ASSOCIATES, SECOND FLOOR, ASWATHY TOWERS THEKKUMGOPURAM, KOTTAYAM. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE FOR R4 BY ADVS. MR.S.K.AJAY KUMAR FOR R4 MR.RAJIT FOR ADDL.R PROSECUTOR MR.P.N.SUKUMARAN (VIGILANCE) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2009, ALONG WITH WPC NO. 7164 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- W.P(C)No. 5682 OF 2009 & W.P(C)No. 7164 OF 2009 ------------------------------- Dated this the 30th day of March, 2009 JUDGMENT The W.P(C) 5682/09 is filed with a prayer to quash the proceedings initiated on the basis of Exhibit P1 complaint. The W.P(C) 7164/09 is also filed by one of the respondents in the C.M.P with a similar prayer. A perusal of the C.M.P would reveal that the prayer is to pass orders under Section 156(3) Crl.P.C to register and investigate a case for offences under Sections 13(1) (c) and (d) r/w 13(2) of P.C Act Sections 201, 409, 420, 468, 471, 477 and Section 120B of the IPC. The learned Enquiry Commissioner and Special Judge had directed the FIR to be registered in the matter and it is that which is under challenge. The challenge goes to the root of the matter. The contentions raised are whether the respondents in the complaint will come under the definition of Public Servants under the provisions of Prevention of Corruption Act and whether (2) the said court is having jurisdiction to proceed with the matter and (3) whether preliminary enquiry has to be conducted as contemplated in the decision reported in Sirajudeen Vs. State of Madras W.P(C)No. 5682/2009& W.P(C)No. 7164/2009 -2- [AIR 1971 SC 520]. In other words the crux of the matter depends upon the finding of the court prima facie on the question of Public Servants which alone will give the power to the court functioning under the P.C Act to proceed in accordance with law and it is only then the secondary aspect of a preliminary enquiry being conducted will arise. Unfortunately the learned Enquiry Commissioner and Special Judge has not applied his mind to these crucial facts which has resulted in registration of the crime and investigation. Therefore I set aside the order passed by the learned Enquiry Commissioner and Special Judge and direct him to reconsider the complaint after hearing all concerned on the points raised above and then proceed in accordance with law. The learned Enquiry Commissioner and Special Judge shall dispose of the matter as expeditiously as possible at any rate within a period of four months from the date of receipt of the copy of the judgment. The W.P.(C)s are disposed of accordingly. M.N. KRISHNAN, JUDGE vkm