IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 Crl.Rev.Pet.No. 1420 of 2009() ------------------------------ AGAINST THE ORDER DATED 08/04/2009 IN CMP 367/2008 IN CC.1/2002 of ENQUIRY COMMISSIONER AND SPECIAL JUDGE, TRIVANDRUM .................... REVN. PETITIONER(S): PETITIONER/ACCUSED NO.6 -------------------------------------------- K.GOPAKUMARAN NAIR, S/O. KESAVA PILLAI, 'VISAKAM' THOTTAMPARA,VEERANAKAVU VILLAGE, KATTAKKADA.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.P.VIJAYA BHANU SRI.M.SREEKUMAR SRI.M.REVIKRISHNAN RESPONDENT(S): RESPONDENT/COUNTER PETITIOER/COMPLAINANT -------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1420 of 2009 -------------------------------------- Dated this the 28th day of July, 2009. ORDER Petitioner along with others is accused in C.C.No.1 of 2002 of court of Enquiry Commissioner and Special Judge, Thiruvananthapuram for offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and Sections 120B, 468 and 471 of the Indian Penal Code. Case against petitioner is that though he had no interest in the property acquired for the purpose of BPCL and hence was not eligible to get appointment in that company in his capacity as a project affected person, he, along with other accused entered into criminal conspiracy and creating false records obtained employment in the said company. Investigation allegedly revealed involvement of petitioner also in the said offences. Petitioner filed Crl.M.P.No.367 of 2008 seeking his discharge contending that there is no sufficient ground to proceed against him. Learned Enquiry Commissioner and Special Judge vide order dated 8.4.2009 dismissed the petition. That order is under challenge in this revision. It is contended by learned counsel that there was no sufficient ground to proceed against the petitioner for any of the offences attributed to him. According to the learned counsel, petitioner had not applied for or obtained any employment with the BPCL. It is also contended that statement of CW33 would show that all along, petitioner was employed either in the Co-operative Society or Kerala State Road Transport Corporation and never had taken up any Crl.R.P.No.1420/2009 2 employment with the BPCL. Learned counsel submits that it was almost twelve years after the alleged recommendation for employment of petitioner in the BPCL that the complaint itself was preferred. Learned Prosecutor representing the respondent contended that apart from the above there are other allegations also made against the petitioner and there is sufficient ground to proceed against the petitioner. 2. On going through the order under challenge it is seen that learned Enquiry Commissioner and Special Judge referred to the statement of CW33 as to the petitioner being employed elsewhere but that statement was not considered by the learned Enquiry Commissioner and Special Judge for the reason that nowhere in the petition filed by the petitioner, he had contended that he had not availed the opportunity of employment in the BPCL which was granted to him as a project affected person and in the circumstance, it is too early to hold that there is no incriminating material against the petitioner. I am not inclined to think that for the reason that petitioner did not plead so in the petition, his request to discharge should have been rejected if otherwise he were entitled to a relief in that line. Learned Enquiry Commissioner and Special Judge had to refer to the materials on record and decide whether there was sufficient ground to proceed against the petitioner notwithstanding the lack of sufficient plea in the petition filed by the petitioner. To order a discharge, a petition from the petitioner was not essential. Court has to consider whether there is sufficient ground to proceed against petitioner. That having not been done, the impugned order cannot be sustained. I am not however going into the allegations made Crl.R.P.No.1420/2009 3 against the petitioner or his contention which according to him justified a discharge. That is a matter which the learned Enquiry Commissioner and Special Judge has to consider on the basis of materials on record. Resultantly, this revision petition is allowed. Order under challenge is set aside and the matter is remitted to the court of learned Enquiry Commissioner and Special Judge for fresh consideration and decision. THOMAS P.JOSEPH, Judge. cks