IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 OP(Crl.).No. 177 of 2010(Q) ---------------------------------------- CC.115/2008 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM .................... PETITIONER ------------------- C.K. KRISHNAN, TAHSILDAR (RETD.), 33/560 (A), AMRUTHAKRIPA, A.R.CAMP ROAD, CALICUT-12. BY ADV. SRI.M.V.BOSE, SRI.VINOD MADHAVAN. RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE POLICE STATION, THODUPUZHA, IDUKKI. R1 & R2 BY GOVT. PLEADER MR.P.A. SALIM. THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ----------------------------------------------------- O.P.(Criminal) NO.177 OF 2010 ---------------------------------------------------- Dated 4th October, 2010 JUDGMENT Petitioner, the accused in C.C.115/2008 on the file of Enquiry Commissioner and Special Judge, Kottayam filed this petition to quash Ext.P1 final report taken cognizance for the offences under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and under Sections 409, 468, 471, 120 B and 109 of Indian Penal Code. Petitioner had earlier filed W.P.C.15465/2005 for the same relief. By Ext.P8 judgment this Court found that the cognizance taken or the final report cannot be quashed the petitioner could raise the contentions before the learned Special Judge. In view of the submission that a petition for discharge OP(Cr).177/10 2 under Section 239 of Code of Criminal Procedure is pending before the learned Magistrate, in Ext.P8 judgment this Court directed the Special Judge to dispose Ext.P10, the said petition, within six weeks from the date of receipt of a copy of the judgment. Learned Special Judge then informed the Court that Ext.P10 application was not filed before the Court. This Court was therefore, compelled to review the order by Ext.P9 order. But as it is submitted that an application was subsequently filed, this Court made it clear that petitioner is entitled to raise the contentions before the Special Judge and it is for the learned Special Judge to consider the same. 2. This petition is filed contending that by Ext.P6 judgment in O.P.7615/2001 this Court considered the validity of patta and OP(Cr).177/10 3 accepted the case of the petitioner and in such circumstances, the case is to be quashed. 3. In Ext.P8 judgment, this Court has already declared that question to be considered with regard to the patta in the writ petition and the prosecution for the offences under the Prevention of Corruption Act as well as under the Indian Penal Code are different and hence, based on the writ petition or the decision in the writ petition, the case cannot be quashed. 4. In such circumstances, petitioner is not entitled to approach this court once again to quash the proceedings based on Ext.P6 judgment or subsequent settlement between the parties, evidenced by Ext.P7 judgment in the appeal against Ext.P6 judgment. Petitioner is at liberty to raise all the tenable contentions in Ext.P10 application before the learned OP(Cr).177/10 4 Magistrate. If Ext.P10 is not disposed, petitioner is at liberty to approach the learned Special Judge to consider the application, expeditiously and pass appropriate orders in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.