Quashed

K.a.Hashim v. State of Kerala

Kerala HC1 Sept 2016Crl.MC/791/2015

Case brief

AI extract

What is this about?

The High Court of Kerala held that the final report in a Vigilance case was too vague, failing to specify exact acts of misconduct under the Prevention of Corruption Act. The court quashed the report, finding the lower court erred in taking cognizance, and directed the investigating officer to conduct a fresh investigation to file a new report.

What did the court decide?

Final report quashed; direction for fresh investigation by the Enquiry Commissioner; writ petitioner to be considered.

K.a.Hashim Vs State of Kerala — Corruption | Kerala HC (2016)

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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 B.KEMAL PASHA

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THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938

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Crl.MC.No. 791 of 2015 ()

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-------------------------CC.NO. 26/2014 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, (VIGILANCE) THIRUVANANTHAPURAM CBCID CRIME NO. 133/CR/OCW-1,TVM/2011

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PETITIONER/ACCUSED:

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K.A.HASHIM, AGED 58 YEARS, S/O.ABUBECKER, SALMA, VEMBAYAM.P.O., THIRUVANANTHAPURAM.

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BY ADVS.SRI.S.RAJEEV

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SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENT/STATE/COMPLAINANT:

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.(CRIME NO.133/CR/OCW-1/TVPM/2011, THIRUVANANTHAPURAM).

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BY SR PUBLIC PROSECUTOR SRI.P.NARAYANAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-09-2016,ALONG WITH CRL.MC.NO.5593 OF 2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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Crl.MC.No. 791 of 2015 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE I- CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.133/CR/OCW-I/TVPM/2011. ANNEXURE II- COPY OF THE REPORT DATED 22/11/2013 SUBMITTED BY THE INVESTIGATING AGENCY. ANNEXURE III- COPY OF THE ORDER DATED 30/09/2008 IN COMPLAINT NO.572/2008 PASSED BY UPA LOK AYUKTA. ANNEXURE IV COPY OF THE ORDER DATED 29/12/2011 IN COMPLAINT NO.572/2008 PASSED BY UPA LOK AYUKTA ANNEXURE V COPY OF THE FINDINGS OF THE COMMISSION.

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ANNEXURE VI COPY OF THE STATEMENT GIVEN BY THE PETITIONER BEFORE THE JFCM-II, THIRUVANANTHAPURAM

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ANNEXURE VII COPY OF THE STATEMENT UNDER SECTION 164 CR PC OF GIRLY

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ANNEXURE VIII COPY OF THE NOTE DATED 08/05/2008 PUT UP BY THE PETITIONER.

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RESPONDENT(S)' ANNEXURES: -----------------------------------------------

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ANNEXURE R1(A) COPY OF THE RELEVANT PAGES OF KERALA UNIVERSITY STATUTES, 1977. ANNEXURE R1(B) COPY OF THE STATEMENT OF CW4, SRI.R.S.SASIKUMAR. ANNEXURE R1(C) COPY OF THE STATEMENT OF CW5, SRI. VIPIN JOSE. ANNEXURE R1(D) COPY OF THE STATEMENT OF CW15, I.P.GIRLY. ANNEXURE R1(E) COPY OF THE STATEMENT OF CW16, CHITHRA.J.S. ANNEXURE R1(F) COPY OF THE STATEMENT UNDER SEC. 164 CR.PC. ANNEXURE R1(G) COPY OF THE REPORT VIDE NO.DDL 220/13 DATED 25/01/2014. ANNEXURE R1(H) COPY OF THE JUDGMENT OF HON'BLE JUDICIAL 1ST CLASS MAGISTRATE COURT-II, ATTINGAL IN C.C.NO.149/93.

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ANNEXURE R1(J) COPY OF THE FIR.

/TRUE COPY/

P.A.TO JUDGE

sts

[CR]

B. KEMAL PASHA, J.

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Crl.M.C. Nos.791, 5593 & 5660 of 2015 and W.P.(C) No.18488 of 2016

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Dated this the 1^st day of September, 2016

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O R D E R

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~ ~ ~ ~ ~ ~

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Crl.M.C. No.5593/2015 has been preferred by A3

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and A4, Crl.M.C. No.5660/2015 has been preferred by A5 and A6 and Crl.M.C. No.791/2015 has been preferred by A7 in CC No.26/2014 of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram, which has arisen from CBCID Crime No.133/CR/OCWI/TVM/2011. The aforesaid petitioners have come up for getting the final report in CC No.26/2014 in the aforesaid crime, quashed. W.P.(C) No.18488/2016 has been preferred by the petitioner seeking a further investigation by the CBI

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Crl.M.C.791/2015 & connected cases

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into the missing of OMR sheets relating to the valuation of the answer papers involved in the aforesaid crime.

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Heard learned Senior Counsel Sri.P.Vijaya Bhanu for the petitioners in Crl.M.C. No.5593/2015, learned Senior Counsel Sri.B.Raman Pillai for the petitioners in Crl.M.C. No.5660/2015, learned counsel Sri.S.Rajeev for the petitioner in Crl.M.C. No.791/2015, Sri.R.T.Pradeep and Sri.Nagaraj Narayanan for the petitioners and learned Senior Public Prosecutor Sri.P.Narayan. Heard learned counsel Sri.B.H.Mansoor for the petitioner, learned Standing Counsel for the CBI Sri.P.Chandrasekharan Pillai, and also Sri.George Poonthottam in W.P.(C) No.18488/2016.

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Learned Senior Counsel and the other learned

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counsel for the petitioners have invited the attention of this Court to the final report, which is Annexure-I in Crl.M.C. No.5593/2015. It has been argued that the final report is vague to the core and the same cannot be acted upon by a

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court of law. Apart from that, it has been pointed out that the offence under the Prevention of Corruption Act, 1988 allegedly committed by the accused has been shown as the offence under Section 13(2) of the PC Act. At the same time, it has not been pointed out in the final report as to what is the exact nature of the misconduct allegedly committed in the matter by the accused. Further, it has been pointed out that apart from vaguely alleging that the public servants had favoured some persons in procuring employment, the identity of those persons have not been specifically revealed in the final report.

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On going through the final report and on hearing all the learned counsel for the petitioners, it seems that the aforesaid arguments forwarded by the learned counsel for the petitioners are fully correct. The court below ought not to have taken cognizance of the offences based on the vague final report filed by the investigating officer in the

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matter. As rightly pointed out by the learned counsel for the petitioners, the petitioners are entitled to know as to what exactly is the offence alleged against them. Here, the investigating officer has chosen to file the final report alleging the offence under Section 13(2) of the PC Act. At the same time, when specific misconducts are defined under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)(d) and 13 (1)(e) of the PC Act, the investigating officer ought to have revealed in the final report as to what exactly the nature of misconduct committed by them. Instead of that, it has been merely alleged that they have committed the offence under Section 13(2) of the PC Act. Section 13(2) of the PC Act is the penal provision for the misconducts specifically mentioned under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1) (d) and 13(1)(e) of the PC Act. Apart from that, even under Section 13(1)(d) of the PC Act, instances of separate misconducts are shown.

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In short, as far as a final report or the charges are

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concerned, Section 13(2) of the PC Act alone cannot be said to have an independent existence without the junction of the exact misconduct along with Section 13(2) of the PC Act. For example, in a case wherein a misconduct as defined in Section 13(1)(a) of the PC Act is alleged against an accused, the penal provision should be incorporated in the final report or charge as an offence under Section 13(2) read with Section 13(1)(a) of the PC Act. It is trite that the accused are entitled to know as to what should be the offence committed by them in order to defend the charges properly. The present instance is nothing but the denial of the principles of natural justice. Matters being so, the final report requires correction or clarification, as the case may be.

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Apart from that, this Court could notice a gross illegality in the final report. In the final report, it has been

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vaguely alleged that the public servants have favoured a category of candidates to procure employment, through misconduct by the public servants. In such case, the person/persons, who procured employment through the commission of misconduct by the public servants, are also particeps criminis and such person also ought to have been arraigned as accused in the case. Instead of that, the investigating officer has chosen to cite them as charge witnesses. This Court could have swallowed it, had they been made approver/approvers. The investigating officer has not made them approvers or accomplices, whereas they have been allegedly cited as charge witnesses in the case. The said act of the investigating officer cannot be approved.

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It seems that the court below has merely taken cognizance of the offences most mechanically without application of mind. At the time of taking cognizance under Section 190(1)(b) Cr.P.C., the court below ought to have

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applied its mind in the final report. In case of shortcomings, the court below is not powerless to order a further investigation, if required or correction or clarification in the final report, if required. The court below has not chosen to act timely in the matter. The court below ought to have returned the final report for correction or clarification or the court below ought to have ordered further investigation in the matter, if such an investigation was required.

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On hearing all the parties, this Court is of the view that a mere correction or clarification cannot improve the present final report in any manner. According to the learned Senior Public Prosecutor, the investigating officer has collected material evidence against the accused. This Court has not gone through the evidence so far collected by the investigating officer in the matter. At the same time, whatever be the evidence collected by the investigating officer, the present final report cannot be improved through

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a correction or clarification. The present final report is liable

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to be quashed.

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By quashing the final report, this Court is of the view that, that should not be the end of the matter. Justice has to be done. When the investigating officer had allegedly collected evidence, it is for the investigating officer to see that a prosecution should go on in the matter. Therefore, what is now required is a further investigation in the matter, for filing a fresh final report, without the aforesaid shortcomings. The investigating officer shall make use of the evidence already collected and shall conduct a further investigation to correct the aforesaid anomalies pointed out by this Court. The investigating officer shall take note of the aforesaid observations and suggestions made by this Court in carrying out such a further investigation for the filing of a fresh final report in the matter.

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Regarding the further investigation sought for by

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the writ petitioner by the CBI, this Court is of the view that when this Court has ordered a further investigation in the matter by the investigating officer, the investigating officer shall look into the complaints forwarded by the writ petitioner also, regarding the missing of OMR sheets relating to the valuation of the answer papers. The investigating officer shall carry out an investigation into those aspects also.

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After such further investigation in the matter, instead of filing a supplementary final report, the investigating officer in the present circumstances shall file a fresh final report before the court below.

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Crl.M.C. Nos.791/2015, 5593/2015 and 5660/2015 and W.P.(C) No.18488/2016 are disposed of accordingly.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/01/09

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// True Copy //

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PA to Judge

K.a.Hashim v. State of Kerala

Case brief

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K.a.Hashim v. State of Kerala

Case brief

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