IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 Crl.MC.No. 2641 of 2003(A) -------------------------------- (V.C.NO.2/97 PENDING BEFORE THE VIGILANCE AND ANTI CORRUPTION BUREAU SPECIAL CELL, THIRUVANANTHAPURAM) PETITIONER/ACCUSED: R.DINAKARAN, DEPUTY COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM,. BY ADV. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.S.D.ASOKAN SRI.NAVEEN.T RESPONDENTS/STATE & DIRECTOR OF VIGILANCE & COMPLAINANT: 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,HOME DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 2. THE DIRECTOR OF VIGILANCE & ANTICORRUPTION BUREAU, DEPARTMENT OF VIGILANCE, THIRUVANANTHAPURAM, 3. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE DEPARTMENT, HEADQUARTERS UNIT, THIRUVANANTHAPURAM, BY PUBLIC PROSECUTOR MR.P.N.SUKUMARAN. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON 22/02/2008 PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 2641 of 2003 --------------------------------------------- Dated this the 22nd day of February, 2008 O R D E R The petitioner, who is the accused in C.C.No.6 of 2006 pending before the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, approached this Court by filing this petition under Section 482 of the Code of Criminal Procedure seeking to quash Annexure-A5 final report in C.C.No.6 of 2006 which is instituted for the offences punishable under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947(hereinafter referred to for short as 'the P.C.Act, 1947') and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to for short as 'the P.C.Act, 1988'). 2. The allegation against the petitioner/accused is that the petitioner, who was working as the Deputy Commissioner of Excise, being a public servant, while working as the Excise Circle Inspector, the Assistant Commissioner and the Deputy Commissioner in the Excise CRL.M.C.NO.2641 OF 2003 :-2-: Department at various offices during the period between 1.1.1981 and 31.1.1995 and his wife Smt.Chandralekha had been in possession of pecuniary resources and other properties worth of Rs.4,14,127/- which is disproportionate to his known sources of income for which he could not satisfactorily account for and thereby committed the offences punishable under the above provisions of the Act. The above Crl.M.C. is filed when Annexure A2 First Information Report was filed before the court below. According to the petitioner, no offence as alleged in the F.I.R. is disclosed against the petitioner even if the entire allegations are admitted as true. In support of the above contention, the petitioner submits that as per Annexure A1 report dated 4.6.1993, the Director of Vigilance (Investigation) had already recommended that there is no scope for any criminal prosecution and as disclosed by Annexure A1, the Director has already considered the entire facts and circumstances involved in the case and the materials available on record and he came to an independent CRL.M.C.NO.2641 OF 2003 :-3-: conclusion and according to him, departmental proceedings are sufficient for the ends of justice. Thus, according to the petitioner, there is already a report by a competent authority in favour of the petitioner/accused and the subsequent lodging of F.I.R. as well as the subsequent investigation were done overlooking Annexure A1 report. It is also contended in the Crl.M.C. that there is inordinate delay which is not at all explained and no reason is forthcoming to excuse the culpable delay and in the light of the settled proposition of law regarding the delay on the part of the prosecution, the petitioner contended that the present proceedings of the court below will amount to abuse of process of court and based upon the above ground, it is prayed that Annexure-A5 final report and the case instituted thereon, pending before the court below may be quashed. 3. I have heard Mr.Elvin Peter, the learned counsel appearing for the petitioner as well as Sri.P.N.Sukumaran, the learned Public Prosecutor. CRL.M.C.NO.2641 OF 2003 :-4-: 4. The learned counsel for the petitioner submits that the whole proceedings were initiated on the basis of an anonymous letter received by the Government and as per letter dated 29.6.1988, an enquiry was ordered. From Annexure A1 report, it can be seen that the enquiry was initially ordered by the Government rightly as on 29.6.1988. The learned counsel further submits that as disclosed by Annexure A1 report of the Director of Vigilance (Investigation), there are several enquiries before his opinion as per Annexure A1 report. From the list of enclosures shown in Annexure A1, it can be seen that there is a preliminary enquiry report by the Deputy Superintendent of Police, Vigilance Department, Thiruvananthapuram and the forwarding endorsement of the Superintendent of Police, Vigilance Department, Special Cell, Thiruvananthapuram. It is also seen that the opinion of the Legal Adviser to Vigilance Department, Thiruvananthapuram was also considered while making Annexure A1 report. It is also disclosed CRL.M.C.NO.2641 OF 2003 :-5-: that there was a revised preliminary enquiry report of the Deputy Superintendent of Police, Vigilance Department, Special Cell, Thiruvananthapuram dated 12.11.1992. Besides that, there was another forwarding endorsement of the Superintendent of Police, Vigilance Department, Special Cell, Thiruvananthapuram dated 13.11.1992. Apart from the legal opinion mentioned above, there is another remark of the Legal Adviser dated 10.12.1992. Thus, according to the counsel for the petitioner, several enquiries were conducted and all the legal opinions furnished by the legal advisers are also against the prosecution. Thus, according to the counsel for the petitioner, the Director of Vigilance (Investigation) who is the highest superior officer of the Department had already considered the entire facts and materials on record and instead of giving an opinion for prosecution, what he had suggested is that barring departmental action for entering into financial transaction with his subordinates and relatives in violation of Rule 16(1)(a) and (c) of the Kerala CRL.M.C.NO.2641 OF 2003 :-6-: Government Servants (Conduct) Rules, 1960, further action shall be dropped in the matter. According to counsel for the petitioner, that being the position, there was no further action or information from the Department and all of a sudden, the petitioner came to know that Annexure A2 F.I.R. was prepared and presented on 30.1.1995 at about 10.30 am. 5. According to counsel for the petitioner, initially an enquiry was conducted by Mr.A.Surendran who was the Superintendent of Police, Vigilance and Anti corruption Bureau who is CW 115. After the registration of the F.I.R., the same was again forwarded to the said Officer for investigation. Counsel submits that the said Officer is very much inimical towards the petitioner and so he was very much prejudiced by the enquiry conducted by the said Officer. It is further submitted that the above belief of the petitioner is not unfounded since the Director has already found fault with the enquiry conducted and the report prepared by the said Officer. It was in the above circumstances the CRL.M.C.NO.2641 OF 2003 :-7-: petitioner approached this Court by filing the Crl.M.C. on 27.3.2003. Counsel submits that the proceedings were started as early as on 29.6.1988 and the matter was being dragged unnecessarily. In the mean while, the Government issued Annexure A4 order by which the concerned authorities were directed to expedite the enquiry and guidelines were formulated through the above Government Order. Counsel submits that in view of clause (12) of Annexure A4 Government Order, investigation in the present case ought to have been completed within 12 months, but no investigation was conducted and concluded in accordance with Annexure A4 Government Order. 6. Counsel for the petitioner points out that the date of retirement of the petitioner was on 31.3.2006. Though the alleged enquiry and investigation were started much earlier, no final report could be filed in time especially, even though Annexure A4 guidelines are in force. But on the eve of the retirement of the petitioner, all of a sudden, a final report was filed on CRL.M.C.NO.2641 OF 2003 :-8-: 30.3.2006 whereas the date of retirement of the petitioner was 31.3.2006. So, the mala fide intention and extraneous consideration are manifest from the above conduct. 7. On realising the fact that a final report was filed before the court below, the petitioner by filing Crl.M.A.No. 3390 of 2006 sought permission of this Court to amend the Crl.M.C. after producing the final report as Annexure A5 and by order dated 25.8.2006, this Court had allowed the amendment petition. As per Annexure A5 final report, the allegation against the petitioner has been modified from Annexure A2 F.I.R. and the present allegation as per Annexure A5 report is to the effect that the petitioner during the period between 1.1.1981 to 31.1.1995 and his wife Smt.Chandralekha have been in possession of pecuniary resources and other properties worth of Rs.4,14,127/- which is disproportionate to his known sources of income for which he could not satisfactorily account for and thereby committed the said offences. Whereas, as CRL.M.C.NO.2641 OF 2003 :-9-: per Annexure A2 F.I.R., the check period was between 1.1.1981 and 31.12.1988 and the allegation is that the petitioner/accused, while working as public servant, has been in possession of movable and immovable assets and pecuniary resources to the tune of Rs.1,74,024/- during the period from 1.1.1981 to 3.12.1988 which is prima facie disproportionate to his known source of income and which has been worked out to be worth Rs.56,585.11 (24.62%) in excess of his total income for the above period. Learned counsel submits that due to the inimical approach of certain officers of the Department, especially CW 115 though the check period in the F.I.R. is between 1.1.1981 and 31.12.1988, because of their lapse to conduct the investigation properly and effectively and to show a large amount at the time of filing Annexure A5 final report, the check period was enhanced up to 31.1.1995. As part of the said wicked plan, though the amount which was alleged to be in possession of the petitioner and disproportionate to his income, was fixed as CRL.M.C.NO.2641 OF 2003 :-10-: Rs.56,585.11 in Annexure A2 FIR, it was re-fixed as Rs.4,14,127/- in Annexure A5 Final Report. The enlargement of check period and enhancement of the amount are made with a view to circumvent the guidelines contained in Annexure A4 Government Order. On various accounts, the counsel for the petitioner challenges the very assertion and the allegation contained in Annexure A5 report. In order to substantiate the contention raised by the petitioner and the argument advanced by learned counsel for the petitioner, they have very much placed reliance on the document of the prosecution itself namely, Annexure A2 FIR and also Annexure A5 Final Report. 8. According to counsel for the petitioner, in the statement 'A' attached to Annexure A5, the assets of the petitioner and his family as on 1.1.1981 are shown as Rs.4857/- + 40 Sovereigns and 179.500 gm. silver ornaments. In the statement 'A', the first item is shown as bank balance and the figure is only Rs.472.50/-. It is an admitted fact of the prosecution that the petitioner CRL.M.C.NO.2641 OF 2003 :-11-: joined in the service as an Excise Inspector during the month of April, 1977 and subsequently, he was directly recruited as Circle Inspector of Excise with effect from December, 1977. Those salaries have not been shown in any of the items in Statement 'A' attached to Annexure A5 and, had it been shown correctly, no allegation would lie. According to counsel for the petitioner, the above aspect itself is sufficient to shake the prosecution case. It is also submitted by the counsel that the total assets of the petitioner as on 31.1.1995 is 3,81,384/-, which is considered as the entire salary drawn by the petitioner from the initial stage and this amount is different from that of in Annexure A5 Final Report. In item No.2 in Statement-B of Annexure A5 Final Report, the cost of construction of house is shown as Rs.3,30,000/- whereas the cost of construction of house in Annexure A2 is shown as Rs.1,36,322/-. The prosecution has no case that the petitioner had constructed two houses or there was any renovation work on the house already constructed as shown in the CRL.M.C.NO.2641 OF 2003 :-12-: F.I.R. Hence the cost of construction now shown has no basis and is contrary to their own document Annexure A2. It is also pointed out by counsel for the petitioner that in Statement B as item No.4, an amount of Rs.1,00,000/- is shown as the price of the Maruthy 800. Annexure A6 is an order of the Government by which car loan was sanctioned by the Government. Counsel for the petitioner submits that from Annexure A1 report, it is discernible that the cost of house construction was shown as Rs.1,36,322/- on the basis of the inspection and assessment conducted by the P.W.D.Executive Engineer, but when the final report was filed, the same is shown as Rs.3,30,000/- and that is without any valuation conducted by any expert. So, according to counsel for the petitioner, the documents relied on by the prosecution itself are contradictory in nature and the allegations are not sufficient to constitute the offences levelled against the petitioner. Therefore, according to counsel, the entire proceedings initiated and pending against the petitioner are liable to be quashed. CRL.M.C.NO.2641 OF 2003 :-13-: 9. It is also pointed out by counsel for the petitioner that there is inordinate delay on the part of the prosecution in conducting the enquiry and further proceedings from 29.6.1988 till the finalisation of the Annexure A5 Final Report. After the filing of the final report, so far trial has not commenced. It is also pointed out by counsel for the petitioner that the petitioner had already retired from service on 31.3.2006 and so far, his pensionary benefits are not given due to the pendency of the criminal case. So, according to counsel, the entire proceedings, even though the trial is not over, are pending for the last 20 years and therefore, the proceedings now pending before the court below are liable to be quashed. In support of the fervent plea for quashing of the proceedings, the petitioner very much placed reliance on Abdul Rehman Antulay and others v. R.S.Nayak and another (1992(1) SCC 225). My attention is invited to sub-paras 5 and 9 in para 86 of the above decision, which reads as follows:- CRL.M.C.NO.2641 OF 2003 :-14-: “86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situation. Nor is it possible to lay down any hard and fast rules These propositions are:- (1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) xxx xxx xxx xxx (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on--- what is called, the sustemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) xxx xxx xxx xx xx (7) xxx xxx xxx xx xx (8) xxx xxx xxx xx xx (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction as the case may be, shall be CRL.M.C.NO.2641 OF 2003 :-15-: quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order-- including an order to conclude the trial within a fixed time where the trial is not concluded or educing the sentence where the trial has concluded – as may be deemed just and equitable in the circumstances of the case.” On the basis of the above passage, counsel for the petitioner submits that the dictum laid down in the above decision is squarely applicable to the facts and circumstances involved in the case in hand. 10. The counsel further submitted that on an examination of the entire facts and circumstances and shabby nature of the allegation, the proceedings pending against the petitioner are liable to be quashed. It is also not disputed that the proceedings are pending for the last twenty years. In support of his contention to quash the proceedings on the ground of delay, the CRL.M.C.NO.2641 OF 2003 :-16-: petitioner has cited another decision of the Apex Court reported in Ramanand Chaudhary v. State of Bihar and others (AIR 1994 SC 948). 11. Counsel for the petitioner also invited my attention to the two judgments of this Court namely, Crl.M.C.No.9257 of 2002 dated 6.2.2003 and Crl.M.C.No.5425 of 2002 dated 14.8.2002. In those two cases also, the proceedings were pending for quite a long time and considering the long delay involved in those cases, this Court has quashed the entire proceedings against the petitioner in those cases. Counsel for the petitioner submits that the facts and circumstances involved in the present case are more or less same as that of the above two cases and therefore, it is submitted that the petitioner is entitled to get a similar treatment. 12. Per contra, Mr.P.N.Sukumaran, the learned Public Prosecutor submits that Annexure AI report has no relevance and it cannot be looked into since the Government was not satisfied with Annexure A1 report CRL.M.C.NO.2641 OF 2003 :-17-: and the Government has already ordered for an enquiry and based upon such order, the F.I.R. was subsequently registered and the investigation was subsequently undertaken by the department and now a final report was filed. Though the above contention has some force, but considering the factual situation contained in the present case and the materials turned out from the report, it appears that the nature of allegations against the petitioner seem to be very shabby and the documents relied on by the prosecution, especially Annexure A2 F.I.R. and the documents attached to Annexure A5 Final Report are sufficient to show the shabby and contradictory nature of the allegations. It also shows that the allegations contained in the F.I.R. as well as in the final report are not sufficient to constitute the offences against the petitioner. It is submitted by the Public Prosecutor that on the basis of the decision, even though there is an independent and separate opinion by the competent authority, there is no bar on the investigating agency to conduct an investigation and CRL.M.C.NO.2641 OF 2003 :-18-: to file a final report and thus, according to the learned Public Prosecutor, Annexure A1 report of the Director has no bearing or relevance to the present case since after Annexure A1 report, the Government has ordered to conduct an enquiry on the basis of which the F.I.R. was registered and the further investigation was conducted. 13. I have perused Annexure A2 F.I.R. as well as Annexure A5 Final report in detail and also the documents attached therein. The argument of the learned counsel for the petitioner furnishing some explanation to cover up the amount which is alleged to have been shown as disproportionate income is not acceptable to me. Certainly these are all facts to be ascertained through evidence and not in a proceedings under Section 482 of the Code of Criminal Procedure. According to counsel, his asset as on 31.1.1995 will be only Rs.3,81,384/- and the prosecution had deliberately omitted to take into account the salary drawn by him from 1977 onwards while he was working as Excise CRL.M.C.NO.2641 OF 2003 :-19-: Inspector as well as Circle Inspector of Police. It is true that neither in the F.I.R. nor in the final report, the prosecution has considered the above income of the petitioner. Similarly as noted above, the cost of construction of the house is shown as Rs.1,36,322/- as per Annexure A2 F.I.R. In Annexure A1 report, the Director has observed that there was a reduction of Rs.8678/- occurred on a detailed valuation of the house by the Executive Engineer, P.W.D., Quilon which was not done earlier. But, in Annexure A2 F.I.R. also, the cost of construction of house was shown as Rs.1,36,322/-. So the above amount shown in Annexure A2 F.I.R. is not tallying with what stated by the Director in Annexure A1 report. But, In the very same time, in Annexure A5 Final Report, as seen in statement B, the cost of construction of the house is shown as Rs.3,30,000/-. Absolutely, there is no allegation that the petitioner had constructed two houses. In the absence of such allegation or any explanation, the above figure cannot be considered as true. Hence on an overall CRL.M.C.NO.2641 OF 2003 :-20-: consideration, it can be seen that figures shown in the statement attached to annexure A5 Final Report are incorrect and baseless and if those figures are excluded, there will be nothing as disproportionate income and consequently the prosecution case rendered as unbelievable and untenable. 14. It is seen from Statement B, the assets of the petitioner and family as on 31.1.1995. The price of the Maruthy 800 of the petitioner is shown as Rs.1,00,000/- as item No.4 in Statement B. The above amount has to be reduced from the asset since that amount was obtained as loan from the Government as evidenced by Annexure A6. It can also be seen from statement B that an amount of Rs.54,142/- which is shown as the value of clothings and Rs.62,935/- shown as value of Electronic and Electrical Gadgets and according to the counsel, these are not correct figures. Even if these figures are considered as correct, it can be seen that the prosecution allegation rests on certain quantity of clothings and electrical items. Thus, according to counsel CRL.M.C.NO.2641 OF 2003 :-21-: for the petitioner, there is no excess asset for the petitioner so as to attract the penal provisions charged against the petitioner. In the light of the above discussion, the figures, which are relied on by the Prosecution, are mutually contradictory, unbelievable and incorrect, even according to the documents. Thus, it is to be held that the allegations are very shabby and there is no meaning in directing the petitioner to undergo the ordeal of trial, based on such shabby allegations and also the allegations which are not sufficient to constitute the offence. 15. It is also an undisputed fact that the proceedings against the petitioner were initiated much early, as on 29.6.1988 and thereafter, about 20 years are over. Even now the trial has not started so far. There is no cogent explanation as to why the enquiry and investigation are delayed. Of course, the Investigating Agency can take their own time to complete the proceedings. In the decision reported in the Abdul Rehman's case (cited supra), the Apex Court had held CRL.M.C.NO.2641 OF 2003 :-22-: that ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, shall be quashed. In the above decision, it is further held that this is not the only course open and the nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. But, in the present case, I am of the view that considering the shabby nature of the allegations and the long pendency of the case, the proceedings against the petitioner are liable to be quashed. 16. After Abdul Rehman's case (cited supra), the Apex Court was pleased to quash a prosecution in Ramanand Chaudhary's case (cited supra) in which the prosecution against the accused was pending for more than 13 years, on the basis of the complaint before the Police that the appellant had demanded Rs.200/- from him as bribe for getting his work done in the Revenue Department. As a consequence, a raid was conducted