Dismissed

C.C Thampi v. the Inspector of Police

Kerala HC3 Jun 2020Crl.MC/1408/2017

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the petitioner's challenge against an order allowing the CBI to conduct further investigation into an affiliation fraud case. The court found sufficient justification for reopening the case based on new facts and material allegations regarding procedural irregularities not covered in the earlier investigation.

What did the court decide?

The criminal miscellaneous petition challenging the order for further investigation is dismissed.

C.C Thampi Vs the Inspector of Police — Kerala HC (2020) — LawSathi Research

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Crl.M.C.1408/17

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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 SUNIL THOMAS

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WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942

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Crl.MC.No.1408 OF 2017

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AGAINST THE ORDER/JUDGMENT IN CMP 21/2017 DATED 06-01-2017 IN CRIME NO.RC.18A/2009-CBI/COCHIN OF SPECIAL COURT SPE/CBI-I, EKM

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PETITIONER/2nd ACCUSED:

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C.C THAMPI AGED 60 YEARS, S/O.CHAKKUTTY, 5/244, CHERUVATHUR HOUSE, KOTTOR, PAZHANJI P.O., THRISSUR DISTRICT,PIN - 680 548.

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SRI.RAJU RAMACHANDRAN (SR.) BY ADV. SRI.DINESH MATHEW J.MURIKAN

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RESPONDENT/COMPLAINANT:

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THE INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION, KOCHI, KATHRIKADAVU, KALOOR P.O.,KOCHI - 682 017, REPRESENTED THROUGH THE STANDING COUNSEL, HIGH COURT OF KERALA, KOCHI - 682 031.

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R1 BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.

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OTHER PRESENT:

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SRI.S.S.AJITHKUMAR ,SPL.PP FOR CBI

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-032020, THE COURT ON 03-06-2020 PASSED THE FOLLOWING:

Crl.M.C.1408/17

ORDER

Petitioner is the second accused in Crime No.R.C.18(A)/2009 of the Special Judge (SPE-CBI) Ernakulam for offences punishable under section 120B, 420 IPC r/w 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Petitioner challenges Annexure-A12 order passed by the Court in C.M.P.No.21 of 2017. First accused is the Regional Director of AICTE.

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According to the petitioner, he is a Non Resident Indian and the Chairman and Managing Trustee of one Cheruvathoor foundation. The above foundation has established an engineering college by name, Thejus Engineering College. The above college is situated in 10.525 Acres of land in Thalapully taluk. The college had obtained letter of approval issued by AICTE dated 23.06.2009 which thereafter was being renewed from time to time.

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While so, the present crime was registered by the CBI on an allegation that the first accused while functioning as the Regional Director of AICTE, during the period 2008-2009, abused her official position as public servant and entered into criminal conspiracy with the second accused in dishonestly recommending the proposal of the second accused for affiliation to the new engineering college set up by the foundation. It was alleged that the above proposal was sent for approval

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when the college did not have basic facilities as per the AICTE norms and standards and thereby cheated the Government of India and obtained wrongful gain in the form of capitation fee collected from the students. After investigation, CBI filed Annexure-A10 closure report dated 13.09.2010. It was accepted by the Court. Later, CBI submitted Annexure-A11 application dated 05.01.2017 before the CBI Court seeking permission to investigate further the case. It was allowed by the Court by Annexure-A12 order holding that the CBI has given valid and cogent grounds for conducting further investigation. The above order is under challenge in the present proceedings.

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Assailing the above order, Mr.Raju Ramachandran, the learned senior counsel for the accused contended that the scope of further investigation was restricted to the discovery of new oral and documentary evidence. It was contended that, its purpose was to bring the true facts before the Court even if it was discovered at a subsequent stage to the primary investigation. Learned senior counsel contended that, averments in Annexure-A11 application would show that the application was not filed on the ground of revelation of fresh and new facts and evidence or that, it has acquired new materials which has come to light or for the reason that the earlier investigation was tainted. It was further contended that, it was trite law that further investigation can be conducted only if new or further materials had come to the notice of the

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investigating agency or that the earlier investigation was tainted. The reason projected by CBI was that, there was a different angle of the case to be probed into, based on hypothetical assumptions of the present investigating officer. That was not a justifiable ground for ordering further investigation, it was contended.

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To buttress the above contention, learned senior counsel relied on the decision reported in Vinay Tyagi v. Irshad Ali @ Deepak and Ors. (2013 CRI.L.J.754). In that case, it was held that further investigation was justified when the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8) Cr.P.C. This power was vested with the Executive. It was in continuation of a previous investigation and, therefore, was understood and described as a further investigation. Scope of such investigation was restricted to the discovery of further oral and documentary evidence. Its purpose was to bring true facts before the Court, even if they were discovered at a subsequent stage to the primary investigation.

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Learned senior counsel then relied on the decision in Kishan

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Lal v. Dharmendra Bafna and Another (2009(7) SCC 685) . In that, it was held that the investigating officer may exercise his statutory power of further investigation in several situations, as for example, when new facts come to his notice, when certain aspects of the matter had not been

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considered by it and it found that further investigation was necessary to be carried out from a different angle, keeping in view of the fact that new or further materials came to his notice. Apart from that, learned Magistrate or superior courts can direct further investigation, if the investigation was found to be tainted and/or otherwise unfair or was otherwise necessary in the interest of justice.

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In State v. Gopakumar (1988(1) KLJ 521) it was held that, after having formed the opinion on the materials and placed the accused for trial before Court, investigation agency cannot have a second thought on the same materials and submit a further report arriving at a different conclusion. Section 173(8) which was the only provision authorizing further investigation was only an enabling provision which preserves that right in the interest of society for fair administration of criminal justice. That subsection only preserves the right to forward a further report or reports in addition to the original report which was already forwarded to court. It was not intended to erase the original report and its substitution by a new report. The Supreme Court hastened to hold that, further report only means a report in addition to the original one. It may have the effect of adding to or subtracting from the original report. But a condition precedent to the exercise of that right as provided in section 173(8) itself was the obtaining of “further offence” over and above what was collected or known earlier.

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Learned senior counsel further relied on the decisions reported in State of Karnataka v. G. Lakshman (1993) Cri.L.J 2331) and Ram Lal Narang v. State (Delhi Admn.) (1979(2) SCC 322) to supplement the above legal proposition.

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Learned senior counsel pointed out that, since closure report was filed on the basis of the materials covered in the course of investigation, any further investigation can be sought only if facts demanded a further investigation. It was contended that, under the guise of further investigation the police was not intended to take a reinvestigation or a fresh investigation. It was contended that, fresh investigation or re-investigation can be adopted only on the order of superior courts.

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To supplement the above contention, learned senior counsel relied on the decision reported in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel ((2017)4 SCC 177) . The Supreme Court in that decision held that, fresh investigation, re-investigation, de novo investigation, however was an exercise, which could neither be undertaken by the investigating agency suo motu nor could be ordered by the Magistrate and that it was essentially within the domain of the higher judiciary to direct the same and that too under limited compelling circumstances warranting such probe to ensure a just and fair investigation and trial.

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Crl.M.C.1408/17

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In K.Chandrasekhar v. State of Kerala ((1998)5 SCC 223)

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it was held that the police has a right of further investigation under section 173(8) Cr.P.C but, not fresh investigation or re-investigation. It was clarified that, further investigation was a continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether.

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This view was expressed by the Supreme Court earlier in State of Punjab v. CBI (2011(9) SCC 182) as well as in Rama Chaudhary v. State of Bihar (2009)6 SCC 346) both relied on by the learned senior counsel.

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It was pointed out by the learned senior counsel that the closure report was filed in 2010. The investigating agency, after collection of entire materials was satisfied that no further investigation was called for and there was no material to prosecute the accused. Petitioner was enjoying the benefit of such a closure report till 2017 when a request for further investigation was made. After having permitted the petitioner to enjoy that benefit, if a further investigation is ordered, it will cause considerable mental trauma to the petitioner. It was contended that the right of speedy trial envisaged in Article 21 of the Constitution was not confined to the actual trial only but it included the right to an investigation without delay. In the present case, belated re-investigation under the guise of further investigation will violate right conferred under

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Article 21 of the Constitution of India, it was contended. To supplement the above contention, learned senior counsel for the petitioner relied on the decisions reported in Pankaj Kumar v. State of Maharashtra ((2008)16 SCC 117), Mahendra Lal Das v. State of Bihar ((2002)1 SCC 149) and Abdul Rehman Antulay v. R.S.Nayak ((1992)1 SCC 225) . In all the above decisions, it was held that the settled legal principle was that, right of speedy trial in all criminal prosecution was an inalienable right under Article 21 of the Constitution. This right was applicable not only to the actual proceedings in the Court but also included within its sweep the preceding police investigations as well.

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Yet another contention advanced by the learned senior counsel was that, though the police have a statutory duty to investigate further, however the power can be exercised only within a reasonable time. While the reasonable time principle has been laid down in the context of Article 21, it was applicable to a plea for further investigation as well, especially where there was no new or fresh material. To supplement this, learned counsel relied on the decisions reported in the Godrej & Boyce Mfg. Co. Ltd. v. State of Maharashtra ((2014)3 SCC 430) and in Mansaram v. S.P.Pathak (1984)1 SCC 125).

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With the above legal propositions settled, it has to be evaluated whether the facts in this case justified the invocation of all or any of the above propositions of law. The facts disclose that, application

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was submitted to the AICTE on 26.12.2008. The team of AICTE inspected the premises and the building on 15.06.2009. Pursuant to the approval granted, college was incorporated and it started functioning on 13.08.2009. Crime was registered in 2009.

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The crux of the allegation was that the college did not satisfy the immediate requirement as statutorily mandated for granting approval by the AICTE. The prosecution allegation was that, accused Nos.1 and 2 entered into a criminal conspiracy and the first accused knowing that 2^nd accused did not satisfy the legal requirement granted approval. Original investigation seems to have proceeded mainly on the question whether the building had sufficient built up area of 4300 sq.m as was statutorily required. It seems that the prior investigating agency had relied on some materials, including the materials available with the management, the contractor and also the expert opinion given by the PWD officers to decide the crucial question whether as on the date of inspection by the committee, the college had completed construction of 4300 sq.m. The trend of the investigation indicates that, investigating agency was called upon to consider expost facto, whether as on a previous date, the builder could have completed the statutorily required extent of building. Relying on the version of the contractor, employees of the second accused, the information given by the members of the executive committee, the opinion of experts whose services were solicited by the investigating

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agency and perusal of files kept in the office of the contractor, investigating agency concluded that, there were materials to hold that the contractor had completed the construction of 5571.86 sq.m on 11.06.2009. It concluded that, no document or oral evidence was available to hold that the built up area was less than the minimum requirement. However, committee suggested that the first accused had committed certain procedural irregularities and departmental action was recommended against the first accused. The final report does not specifically disclose the procedural irregularities committed by the first accused.

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Annexure-A11 is the application submitted by the CBI requesting for further investigation. It seems that, specific grounds were set up in the above application. In the application, it was stated that the specific angles of the acts of misconduct of the accused have not been probed into which, if investigated, would have resulted in collection of materials relevant to substantiate the charges in this case. It was also alleged that there was suppression of material facts by the accused during earlier investigation necessitating further investigation.

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One of the grounds set up by the CBI was that, AICTE had approved the names of three persons constituting the expert committee members, for inspection of the colleges to ascertain the infrastructural facilities. However, on the request of the first accused, 2 other persons

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attended the committee, without the permission of AICTE. It was alleged that, she deliberately avoided the approved members of the committee and selected members of her choice. It was further alleged that, under the AICTE norms, the expert committee shall consist of three expert members but, only two experts attended the committee. Yet another allegation was that during the inspection, committee claimed to have found 4917 sq.m building. However, it was alleged that it was impossible to construct building with such a built up area in a short span of 3½ months time. It was further alleged that, during investigation, no physical verification was conducted about the existence of digital library, electrical generator, students canteen, barrier free environment, availability of faculty, computers, stadium etc which were also mandatory requirements for the approval of AICTE. It was further alleged that though the expert committee had mentioned that there was gymnasium/indoor outdoor stadium, sports stadium and rain harvesting facilities in the college, infact there were no such facilities at the time of investigation.

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Another serious allegation raised in the application by the CBI was that, according to the expert committee, they had inspected the college on 15.06.2009 and completed the inspection within 2 hours. The duration of inspection conducted in the present college was between 10.30 a.m to 12.30 p.m., which according to the investigating agency overlapped with the time of inspection of another college. It was later

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revealed that the committee had inspected 4 colleges on that day. Another college was seen inspected between 10 a.m. to 6 p.m. on 15.06.2009. It was also alleged that, according to the experts, they left Nedumbassery Abad Airport hotel at 11 a.m on 15.06.2009, after completing the inspection at the other college. Going by the logistical timing, it was humanly impossible to reach the present college within the time mentioned in the petition, it was alleged.

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Yet another allegation was that, though in the report, it was mentioned that the building had permanent electricity and water connection during their inspection on 15.06.2009, further materials revealed that, college had applied for permanent electricity connection only on 13.12.2009. It was also revealed that, though the committee had stated that they had verified the audited statement of accounts of the trust for the last 3 years, the trust was formed only on 25.08.2008 and account had not been audited till the date of inspection.

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It seems that the earlier investigation was confined to only one aspect, whether it was possible to construct the building with built up area of 4300 sq.m as on the date of inspection. On the basis of the materials gathered, earlier investigation had concluded that a large extent was constructed within the above time. It seems that the present allegations are based on specific new and relevant factors. It seems to have not been the subject matter of the earlier investigation. Viewed

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from that angle, it is definite that, further investigation is not sought on the basis of a new angle of the same material alone, but analyzing the entire facts on the basis of new allegations and new factual circumstances. Evidently, these are matters which are to be investigated in detail. Having considered this, I feel that, none of the above legal objection advanced by the learned senior counsel will apply. Necessarily, plea set up by the CBI has only to be accepted. Hence, there is no illegality in the order passed by the court below and is not susceptible for a challenge at the instance of the accused on the above grounds. I find no reason to interfere in the impugned order.

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Crl.M.C fails and is dismissed accordingly.

Sd/-

SUNIL THOMAS

JUDGE

Sbna

Crl.M.C.1408/17

APPENDIX

PETITIONER'S EXHIBITS:

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ANNEXURE A1.	TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO.RC.18(A)/2009- CBI/COCHIN OF CENTRAL BUREAU OF INVESTIGATION, ERNAKULAM DATED 28.12.2009.
ANNEXURE A2.	TRUE COPY OF LETTER OF APPROVAL ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 23.06.2009.
ANNEXURE A3.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 2010-2011 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 23.08.2010.
ANNEXURE A4.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 2011-2012 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 01.09.2011.
ANNEXURE A5.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 2012-2013 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 10.05.2012.
ANNEXURE A6.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 3-2014 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 19.03.2013.
ANNEXURE A7.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 2014-2015 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 04.06.2014.
ANNEXURE A8.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 2015-2016 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 07.04.2015.
ANNEXURE A9.	TRUE COPY OF APPROVAL FOR THE ACADEMIC YEAR 2016-2017 ISSUED FROM THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NEW DELHI DATED 25.04.2016.

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ANNEXURE A10.	TRUE COPY OF THE FINAL REPORT IN CRIME NO.RC.18(A)/2009-CBI/COCHIN OF CENTRAL
	BUREAU OF INVESTIGATION, ERNAKULAM DATED 13.09.2010.
ANNEXURE A11.	TRUE COPY OF C.M.P.NO.21/2017 ON THE FILE COURT OF SPECIAL JUDGE (SPE/CBI)-I, ERNAKULAM DATED 05.01.2017.
ANNEXURE A12.	TRUE COPY OF THE ORDER IN C.M.P.NO.21 OF 2017 PASSED BY THE COURT OF SPECIAL JUDGE (SPE/CBI)-1, ERNAKULAM DATED 06.01.2017.
ANNEXURE A13.	TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE RESPONDENT DATED 10.02.2017.
ANNEXURE A14.	TRUE COPY OF THE COMMON ORDER IN C.M.P.NO.1636/2017, C.M.P.NO.1638/2017 AND C.M.P.NO.1640/2017 IN WRIT APPEAL NOS.93, 94 AND 95 OF 2017 RESPECTIVELY PASSED BY THE HONOURABLE HIGH COURT OF MADRAS DATED 02.02.2017.
ANNEXURE A15.	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DATED 13.02.2017.
ANNEXURE A16.	TRUE COPY OF THE FINAL REPORT IN CRIME NO.RC.18(A)/2009-CBI/COCHIN DATED 16.07.2018

C.C Thampi v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

C.C Thampi v. the Inspector of Police

Case brief

What is this about?

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