Allowed

Balaraj B.K. v. State of Kerala

Kerala HC15 Jan 2021Crl.MC/8765/2018

Case brief

AI extract

What is this about?

Hon'ble High Court of Kerala allowed Criminal Miscellaneous Case filed by the 2nd accused/Secretary of Kozhikode Corporation. The Court held that taking cognizance of offences alleged to be committed during official duty without previous sanction of the Government under Section 548 of the Kerala Municipality Act, 1994 is illegal. Accordingly, proceedings were quashed.

What did the court decide?

This Crl.M.C is allowed. All further proceedings against the petitioner in C.C.No.11/2017 are quashed.

Balaraj B.K. Vs State of Kerala — Writ and Judicial Review | Kerala HC (2021)

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Crl.MC.No.8765 OF 2018(E)

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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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

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Crl.MC.No.8765 OF 2018(E)

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AGAINST THE JUDGMENT IN CC 11/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOYILANDY

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PETITIONER/ACCUSED NO.2:

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BALARAJ B.K, AGED 50 YEARS S/O.LATE B.K.NARAYANA, JOINT DIRECTOR (ADMN), URBAN AFFAIRS DIRECTORATE, SWARAJ BHAVAN, NANTHENCODE, KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003.

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BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SRI.P.T.MOHANKUMAR SMT.BOBY M.SEKHAR KUM.LAYA MARY JOSEPH

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RESPONDENTS/STATE & COMPLAINANTS:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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2 ASSISTANT EXECUTIVE ENGINEER, K.Y.I.P.SUB DIVISION, KAKKODI, CALICUT - 673 611.

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3 ASSISTANT ENGINEER, KUTTIYADI IRRIGATION PROJECT, CANCAL SECTION NO.1, KAKKODI, CALICUT - 673 611.

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SRI.K.B.UDAYAKUMAR, SR.PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.8765 OF 2018(E)

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O R D E R

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Dated this the 15th day of January 2021

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Petitioner is the 2^nd accused in C.C.No.11/2017 on the file of the Judicial First Class Magistrate Court, Koyilandy.

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Crime No.132/2015 was registered by the Elathur Police based on Annexures A1 and A2 complaint from the Assistant Executive Engineer and Assistant Engineer of Kuttiady Irrigation Project. After investigation, the police filed a refer report as evident by Annexure A3 treating it as a “mistake of fact”. When Annexure A3 report was submitted before the learned Magistrate, the learned Magistrate conducted an enquiry under Section 202(1) Cr.P.C and examined PW1 to PW3, who are the officials of the Irrigation Department. Annexures A4, A5 and A6 are the statements recorded by the learned Magistrate under Section 202(1) Cr.P.C. Based on these statements, the learned Magistrate took cognizance of the offence under Sections 427 and 447 IPC and issued summons to the petitioner. The petitioner was the Secretary of Kozhikode Corporation at the relevant time. He filed this petition to quash the proceedings.

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Crl.MC.No.8765 OF 2018(E)

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Heard the learned counsel for the petitioner and the Public Prosecutor.

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The counsel for the petitioner submitted that, as per the decision taken by the Kozhikode Corporation and based on Annexure A7 memo, a road work was sanctioned by the Corporation. According to the counsel, the work was done based on the recommendation of Grama Sabha which was ratified by the Council of the Corporation. The work is tarring the existing road adjacent to Kanoli canal. According to the counsel, there is absolutely no case to the prosecution that the petitioner or others claimed title over the property. In such circumstances, the offences under Sections 447 and 427 IPC is not made out. The counsel also submitted that there is a bar in taking cognizance of the offence as per Section 548 of the Kerala Municipality Act, 1994.

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The Public Prosecutor submitted that the police after investigation referred the case and Annexure A3 is the refer report.

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After hearing both sides, I think there is some force in the argument of the learned counsel for the petitioner. Admittedly, it is a work done based on the decision of the Kozhikode Corporation Council. Annexure A7

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Crl.MC.No.8765 OF 2018(E)

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is the memo issued by the corporation Engineer accepting the tender from the contractor for the work. Section 548 of

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the Municipality Act read like this:

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“548. Sanction for prosecution of Chairperson, Secretary or Councillor.— Where the Chairperson, any Councillor or the Secretary of a Municipality is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government.”

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Admittedly, in this case, there is no sanction as

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per Section 548 of the Municipality Act. In the light of Section 548, no court shall take cognizance of any offence except with previous sanction of the Government if the offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. Admittedly, the petitioner was the Secretary of the Kozhikode Corporation during the relevant time. He was acting in discharge of official duty at the relevant time. In such situation, according to me, sanction is mandatory. It is a case in which the learned Magistrate took cognizance without sanction as per Section 548 of the Municipality Act. According to me, taking cognizance is illegal.

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Therefore, this Crl.M.C is allowed. All further proceedings against the petitioner in C.C.No.11/2017 on the

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Crl.MC.No.8765 OF 2018(E)

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file of the Judicial First Class Magistrate Court, Koyilandy

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are quashed.

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Sd/-

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P.V.KUNHIKRISHNAN

JUDGE

Crl.MC.No.8765 OF 2018(E)

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE A1 CERTIFIED COPY OF THE COMPLAINT DATED 26/02/2015 SUBMITTED BY THE 2ND RESPONDENT. ANNEXURE A2 CERTIFIED COPY OF THE COMPLAINT DATED 27/02/2015 SUBMITTED BY 3RD RESPONDENT. ANNEXURE A3 CERTIFIED COPY OF THE REFER REPORT DATED 19/10/2015 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOYILANDY. ANNEXURE A4 CERTIFIED COPY OF THE SWORN STATEMENT OF PW1 DATED 10/08/2016. ANNEXURE A5 CERTIFIED COPY OF THE SWORN STATEMENT OF PW2 DATED 19/09/2016. ANNEXURE A6 CERTIFIED COPY OF THE SWORN STATEMENT OF PW3 DATED 19/09/2016. ANNEXURE A7 TRUE COPY OF THE MEMO DATED 11/02/2015 ISSUED BY THE CORPORATION ENGINEER IN FAVOUR OF 1ST ACCUSED.

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RESPONDENTS EXHIBITS : NIL

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//TRUE COPY//

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P.A TO JUDGE

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Balaraj B.K. v. State of Kerala

Case brief

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Balaraj B.K. v. State of Kerala

Case brief

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