Dismissed

N.K.Sivaraman v. Aniamma Varghese

Kerala HC3 Jul 2012Crl.Rev.Pet/375/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition challenging a Judicial Magistrate's order dismissing a complaint. The Magistrate found no prima facie case against officials from different departments accused of conspiring to remove a file to avoid official duty regarding ecologically fragile land.

What did the court decide?

The criminal revision petition was dismissed as it was liable to fail.

N.K.Sivaraman Vs Aniamma Varghese — Constitutional and Fundamental Rights | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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TUESDAY, THE 3RD DAY OF JULY 2012/12TH ASHADHA 1934

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Crl.Rev.Pet.No. 375 of 2012 ()

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AGAINST THE ORDER IN Crl.MP 1274/2011 of J.M.F.C.,ALATHUR DATED 30.11.2011

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REVISION PETITIONER/COMPLAINANT:

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N.K.SIVARAMAN

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S/O. KRISHNANKUTTY, NOKKARA HOUSE, VELLAPPARAKUNNU PIN - 678 543, KAVASSERY.PO, ALATHUR TALUK PALAKKAD.

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BY ADVS.SRI.P.BABU KUMAR

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SRI.P.YADHU KUMAR

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RESPONDENTS/ACCUSED:

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ANIAMMA VARGHESE JUNIOR SUPERINTENDENT, OFFICE OF THE ASST. DIRECTOR RESURVEY OFFICE, PALAKKAD - 678 001.

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T.S. SURENDRAN,

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FOREST RANGE OFFICER, FOREST RANGE OFFICE, ANAKKAPARA, ANJUMOOR

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THYMANGALAM, ALATHUR, PALAKKAD - 678 682.

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TONY JOSEPH, VILLAGE OFFICER, KAVASSERY II VILLAGE, PADUR.P.O ALATHUR, PALAKKAD - 678 548.

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STATE OF KERALA REP. BY PUBLIC PROSECUTOR,\ HIGH COURT OF KERALA, ERNAKULAM-31.

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R4 BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 375 of 2012 ()

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNX.A : TRUE PHOTOCOPY OF THE COMPLAINT AND THE DOCUMENTS ALONG WITH THE COMPLAINT DATED 7.4.2011.

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ANNX.B : CERTIFIED COPY OF THE JUDGMENT IN C.M.P.NO.1274/11 ON THE FILE OF THE JUDICIAL I^st CLASS MAGISTRATE COURT, ALATHUR DATED 30.11.2011.

// TRUE COPY //

TKS

P.S. TO JUDGE

C.T.RAVIKUMAR, J.

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-----------------------------Crl.R.P.No.375 of 2012 ------------------------------Dated 3rd July, 2012

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ORDER

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This revision petition has been directed against the order dated 30.11.2011 in Crl.M.P.No.1274 of 2011 of the Court of Judicial I^st Class Magistrate, Alathur. The said complaint was filed alleging commission of offences under Sections 166, 167, 175, 204, 290, 291 and 120B of the Indian Penal Code against respondents 1 to 3 herein. The allegation was that the 1^st respondent/1^st accused who was the custodian of file No.M.C.2187/1997 had failed to produce, rather, purposefully not produced the same, in spite of specific directions issued by the Sub Divisional Magistrate, Munsiff's Court, Sessions Court and Higher Authorities of the Revenue Department. The 2^nd and 3^rd respondents herein were the Forest Range Officer, Alathur and the Village Officer, Kavassery II Village. The allegation against the 2^nd respondent was that he had blocked the road which the petitioner has been using in violation of the orders of the Court of Sub Divisional Magistrate, Palakkad. The allegation against the 3^rd respondent Village Officer was that he produced a false record before the Sub Divisional Magistrate and failed to produce the report submitted by the Village

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Crl.R.P.No.375 of 2012 2

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Officer dated 30.5.1997. It was averred in the complaint by the revision petitioner herein that himself, his wife, his children and his brother-inlaw are the owners in possession of 17.9 acres of landed property in Survey No.428J/3, 4, 5 of Kavassery II Village. According to him, there is a crusher unit in the said property. It is an admitted fact that Government had declared the said property as Ecologically Fragile Land. According to the petitioner, the crusher unit does not fall within the property that was declared as Ecologically Fragile Land and despite the specific orders from the Sub Divisional Magistrate in respect of the pathway passing through the property the 1^st respondent intentionally disobeyed that order in order to save the 2^nd accused/2^nd respondent from penal action. Accused Nos.1 to 3 conspired together and removed the file No.M.C.2187/1997 from the office of the Sub Divisional Magistrate. In the year 2009, the property owned by him had been notified as Ecologically Fragile Land.

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Evidently, the gist of the complaint is that respondents 1 to 3 herein have conspired together and removed the file only to save the 2^nd accused/2^nd respondent from the action for disobedience of the order of the Sub Divisional Magistrate subsequent to the declaration of the land as Ecologically Fragile Land. The 3^rd accused/3^rd respondent

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Crl.R.P.No.375 of 2012 3

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submitted a report to the effect that the pathway in dispute has not been used by the public. The order of the Sub Divisional Magistrate was set aside by the learned Sessions Judge. The contention is that even if the file is missing it can be reconstructed and the delinquent officer can be punished through departmental proceedings. No criminal cases were registered against the complainant/revision petitioner herein.

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Obviously, the accused persons are working in different departments. The 1^st respondent/1^st accused is a Junior Superintendent in the Survey Department, the 2^nd respondent/2^nd accused is the Forest Range Officer, Anakkapara, Alathur and the 3^rd respondent/3^rd accused is the Village Officer of Kavassery II Village. The accusation is that as a consequence of the conspiracy with a view to save the 2^nd respondent they removed file No.M.C.2187/1997. The learned Magistrate after perusing the complaint, sworn statement and copies of the documents filed by the complainant/the revision petitioner found that no prima facie case was brought against the accused. Evidently, the learned Magistrate had taken into account the fact that the allegation of the revision petitioner herein was that the respondents herein had conspired together for not producing file No.M.C.2187/1997 before the court with a view to defeat his interest. The facts that accused Nos.1 to 3 are working in

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Crl.R.P.No.375 of 2012 4

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different departments and the allegation against them pertains to the failure to discharge the official duties revealed from the complaint and the perusal of the sworn statement and the copies of the documents filed by the revision petitioner constrained the learned Magistrate to arrive at the conclusion that there was not even an iota of evidence before the court to show that they had conspired together for not producing the aforesaid file before the court, as alleged. Further, it was noted that even as per the allegation in the complaint the 1^st accused/1^st respondent alone had been dealing with that file. The fact is that the revision petitioner has not produced any document to show that the 1^st accused was holding the charge of the section dealing with the said file and also to show that the file was purposefully removed from the office of the first respondent.

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It is in the said circumstances that the court opined that even in case of missing of files, it could be reconstructed and the delinquent officer could be punished in departmental proceedings. However, no criminal prosecution could be initiated against such an officer, it was held. Accused Nos.2 & 3 were working in other departments and there is not even an allegation that they were in custody of the file in question at any point of time. The learned

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Crl.R.P.No.375 of 2012

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Magistrate had also taken into consideration the fact that the property in question was declared by the Government as Ecologically Fragile Land and in such circumstances, it was the duty of the 2^nd accused to protect the Ecologically Fragile Land. It was also made clear that the sworn statement of the revision petitioner revealed the factum of issuance of a letter by the 2^nd respondent to the effect that the Sub Divisional Magistrate Court got no jurisdiction to decide the dispute over the pathway through Ecologically Fragile Land. The sworn statement would further show that such a stand adopted by the 2^nd respondent was also approved by the Divisional Forest Officer. It was upon considering such aspects and perusing the complaint, sworn statement and copies of the documents filed along with Annexure-A complaint that the learned Magistrate passed Annexure-B order under Section 203 of the Code of Criminal Procedure dismissing the complaint.

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After hearing the learned counsel for the petitioner and also perusing Annexure-B order and Annexure-A complaint which were produced along with the revision petition I do not find any reason to disagree with the findings of the learned Magistrate that respondents 1 & 3 are working in different departments than the department in which the 2^nd respondent has been working and at no point of time they had the

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Crl.R.P.No.375 of 2012

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custody of the concerned file. As regards the 2^nd accused, there is certainly no material to show that he was in charge of the concerned section dealing with the said file. In paragraph 4 of Annexure-A complaint what the revision petitioner alleged was as follows:-

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“KÐOU qºOU oPÐOU Nkf]W¥ kqy×qU SpL^]\ÿOU YPഢ�SsL\j ja¾]pOU hOqOSÇwS¾LaOU hOìv]\LqS¾LaOU WPa] 2187/97& )U jമര lp¤ IyV. c]. IU KLl}y]¤ j]ÐOU IaO¾V oLറ�p] ŸOçfLeV.”

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In the context of the said allegation it is to be noted, as noted by the learned Magistrate, that the 1^st accused/1^st respondent is a Junior Superintendent in the Survey Department, the 2^nd accused/2^nd respondent is the Forest Range Officer, Anakkapara and the 3^rd accused/3^rd respondent is the Village Officer, Kavassery-II Village. The allegation that they had removed file No.M.C.2187/1997 from the office of SDM in such circumstances and in the absence of any material to support it, can never be the foundation for a criminal prosecution, as held by the learned Magistrate. Though the revision petitioner alleged commission of offences under Sections 166, 167, 175, 204, 290, 291 and 120-B, IPC against respondents 1 to 3 he has failed to satisfy the prima facie existence of ingredients to attract the offences. When such a conclusion was arrived at by the learned Magistrate after hearing the

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Crl.R.P.No.375 of 2012 7

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petitioner and perusing his sworn statement, Annexure-A complaint and the documents filed along with it (In fact, they were also produced along with Annexure-A complaint in this revision petition) the revision petitioner has to show that, in fact, a prima facie case does exist against respondents 1 to 3. The fact that the property in question was declared as Ecologically Fragile Land is not in dispute and therefore, for the steps to safeguard the protection of the Ecologically Fragile Land, no criminal action can be initiated against the 2^nd respondent based on the case of the petitioner that there is a public pathway and that it is not part of the land declared as Ecologically Fragile Land. The petitioner may have to establish and obtain consequential relief in appropriate proceedings.

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In the above circumstances, I do not find any error, illegality or impropriety in the impugned order passed by the learned Magistrate to exercise a revisional jurisdiction. This revision petition is liable to fail and accordingly, it is dismissed.

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Sd/C.T.RAVIKUMAR Judge

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kvr/TKS

N.K.Sivaraman v. Aniamma Varghese

Case brief

What is this about?

What did the court decide?

N.K.Sivaraman v. Aniamma Varghese

Case brief

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