Dismissed

T.A Abdul Sathar v. the State of Kerala

Kerala HC16 Nov 2022WP(Crl.)/407/2021

Case brief

AI extract

What is this about?

In this criminal writ petition, the High Court of Kerala rejected the petitioner's plea to quash an FIR registering charges of corruption under Section 7 of the Prevention of Corruption Act, holding that the allegations disclosed a cognizable offence, the need for preliminary enquiry was not mandatory in all corruption cases, and Section 17-A did not apply as the offence was unrelated to official

What did the court decide?

The writ petition seeking quashing of the First Information Report was dismissed as it lacked merits.

T.A Abdul Sathar Vs the State of Kerala — Corruption | Kerala HC (2022)

¶1

(C.R)

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT

¶4

THE HONOURABLE MR.JUSTICE K. BABU

¶5

WEDNESDAY, THE 16^TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

¶6

WP(CRL.) NO. 407 OF 2021

¶7

PETITIONER:

¶8

T.A ABDUL SATHAR, AGED 45 YEARS, S/O ALI, THOPPIL HOUSE, MUPPATHADAM .P.O, ALUVA, ERNAKULAM DISTRICT-683110. BY ADVS. RENJITH.R ANISH JOSE ANTONY ANJU MOHAN

¶9

RESPONDENTS:

¶10

1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETAZRY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033. 3 DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, KOTTAYAM, PIN-686001.

¶11

BY ADV SRI. RAJESH.A (SPL.G.P (VIGILANCE) SMT. REKHA.S (SR.P.P)

¶12

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶13

W.P(Crl) No.407 of 2021

(C.R)

K.BABU, J.

W.P(Crl) No.407 of 2021

¶18

Dated this the 16^th day of November, 2022

¶19

JUDGMENT

¶20

The petitioner was the Sub Inspector of Police, Kaduthuruthy

¶21

Police Station. He is seeking to quash the FIR registered as VC No.7/2021/KTM by the Vigilance and Anti-Corruption Bureau (VACB), Kottayam Unit alleging offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act').

¶22

2. Facts :

¶23

2.1. While the petitioner was serving as Sub Inspector (Law

¶24

and Order) at Kaduthuruthy Police Station, he was entrusted with

¶25

the investigation in Crime No.281/2021 registered alleging

¶26

offences punishable under Sections 498A and 323 read with Section 34 of the Indian Penal Code against the defacto complainant in V.C No.7/2021 and three others. Sri.Anil Kumar was employed as an Assistant Sub Inspector of Police at the

¶27

¶28

W.P(Crl) No.407 of 2021

¶29

Kaduthuruthy Police Station. The defacto complainant and the

¶30

other accused were granted anticipatory bail. Sri. Vijay.P.Victor, the brother of the defacto complainant, approached the petitioner and Sri. Anil Kumar, in connection with the crime registered against the defacto complainant and others.

¶31

2.2. The defacto complainant alleged that the petitioner and

¶32

the other accused demanded bribe through Sri.Vijay.P.Victor. Later Sri. Anil Kumar received Rs.5,000/- in March 2021 from the

¶33

father of the defacto complainant and Rs.15,000/- from his brother.

¶34

2.3. On 09.08.2021, the defacto complainant contacted

¶35

Sri.Anil Kumar over phone and informed that the accused in the crime were granted anticipatory bail. Sri. Anil Kumar told him that out of Rs.20,000/- given earlier, Rs.15,000/- was given to the petitioner and that he required more money as bribe. The

¶36

defacto complainant preferred a complaint before the VACB. The

¶37

Deputy Superintendent of Police, VACB, Kottayam Unit laid a trap based on Ext.P1 FIS and Sri. Anil Kumar was arrested along with

¶38

W.P(Crl) No.407 of 2021

¶39

¶40

the bribe money on 12.08.2021. Sri.Anil Kumar and the petitioner

¶41

have been arrayed as accused Nos.1 and 2 respectively in the crime.

¶42

Heard Sri. Anish Jose Antony, the learned counsel appearing for the petitioner, Smt. Rekha.S, the learned Senior Public Prosecutor appearing for respondent No.1 and Sri.A Rajesh, the learned Special Government Pleader (Vigilance) appearing for respondent Nos.2 and 3.

¶43

The learned counsel for the petitioner contended that no cognizable offence is made out against the petitioner in the FIS, based on which, Ext.P1 FIR has been registered. The learned counsel contended that in the given circumstances, the proceedings initiated against the present petitioner deserve to be

¶44

quashed and set aside being an abuse of the process of the Court.

¶45

The learned counsel for the petitioner specifically raised the following grounds in support of his plea:

¶46

(a) No offence is made out to attract Section 7

¶47

W.P(Crl) No.407 of 2021

¶48

¶49

of the Act.

¶50

(b) No preliminary enquiry as required in Lalita

¶51

Kumari v. Govt. of U.P., [2014 (2) SCC 1] has

¶52

been conducted before the registration of

¶53

the crime against the petitioner.

¶54

¶55

was obtained in the matter.

¶56

(d) The Investigating Officer ought to have

¶57

implicated the bribe giver also as an

¶58

accused in view of Section 8 of the Act.

¶59

The learned Senior Public Prosecutor, per contra,

¶60

contended that the materials placed before the Court prima facie revealed a cognizable offence against the petitioner and that preliminary enquiry is not mandatory but only directory. The learned Senior Public Prosecutor further contended that the

¶61

approval as provided in Section 17-A of the Act is only required

¶62

where the alleged offence is relatable to any recommendation

¶63

made or decision taken by a public servant in discharge of his

¶64

W.P(Crl) No.407 of 2021

¶65

¶66

official functions and duties. The learned Senior Public Prosecutor submitted that the offence under Section 8 of the Act is brought out only when a person induces a public servant to perform improperly a public duty and in the present case, there is nothing to show that the defacto complainant herein or any of the accused in FIR No.281/2021 induced the petitioner or any

¶67

other public servants to perform improperly a public duty.

¶68

The present crime has been registered based on Ext.P1

¶69

FIS. The relevant portion of Ext.P1 FIS reads thus:

¶70

" എന�ക� ദ�ബ�യ�ൽ ജ��ല�യ�ണ� . ഞ�ന�� എൻറ� ഭ�ര� അര�ണ�മയ�� മകൾ വ�യ മര�യ വ�ജന�യ�യ�� ദ�ബ�യ�ല�ണ� ആണ� ത�മസ�ച�ര�നത� .. ഞ�ന�� ഭ�ര�യ�� തമ�ൽ ക��ച�ക�ലങള�യ� ക�ട��ബപ(ശ*ങൾ ഉണ� . കഴ�ഞ മ�ർച�ൽ ഞങൾ ന�ട�റലത� . (�ലക�ട�ള എൻറ� വ3ട�ൽ വച� മ�ർച� 17- ന� ഞ�ന�� ഭ�ര�യ�� തമ�ൽ വഴക�ണ�യ� . ത�ടർന� ജ(�ല3സ�ക�ർ വ3ട�റലത�കയ�� , പ(ശ*ങൾ (�ഞ� ത3ർക�കയ�� റ4യ6� . ഭ�ര�റയ ക��പന� മ�ഞ9ര�ള അവള�റട വ3ട�ൽ റക�ണ�ക�വ�ൻ ജ(�ല3സ�ക�ർ ന�ർജദശ�ചതന�സര�ച� ഞ�ൻ ഭ�ര�ജയയ�� മകറളയ�� ക9ട� 17.03.2021 ഭ�ര�വ3ട�റലത� . അവ�റട റവച� ഭ�ര�യ�� , അവര�റട മ�ത�(�ത�കള�� , ജ��സ� എന ഒര� ഗ�ണയ�� ജ4ർന� എറന മർദ�ച� അവശന�ക� . ഇക�ര�ത�ന� ഞ�ൻ കട�ത�ര�ത� ജ(�ല3സ� ജ?ഷന�ൽ (ര�ത� നൽക�റയങ�ല�� എൻറ� (ര�ത�യ�ജBൽ യ�റത�ര� നട(ട�യ�� സC3കര�ച�ല . എന�ൽ എന�ക�� എൻറ� മ�ത�(�ത�കൾക�� എത�റര എൻറ� ഭ�ര� അര�ണ�മ നൽക�യ (ര�ത�യ�ജBൽ കട�ത�ര�ത� ജ(�ല3സ� ജ?ഷൻ കപക� നമർ 281/2021, 498 A റസകൻ പ(ക�ര� ജകസ� ര��?ർ റ4യ6� . ത�ടർന� , ഞങൾറകത�റര ജകസ� ര��?ർ റ4യ6ത�മ�യ� ബനറപട� അജനCഷ�ക�റനത�യ എൻറ� ജ4ടൻ വ��യ� . (� . വ�കJ��ജന�ട� കട�ത�ര�ത� ജ(�ല3സ�

¶71

W.P(Crl) No.407 of 2021

¶72

¶73

ജ?ഷന�റല എസ� ഐ അബ�ൽ സത�ർ , എ എസ� ഐ അന�ൽക�മ�ർ എന�വർ ജകസ�ന�റ� ക�ര�ങൾ സ�സ�ര�ചത�ന�ജശഷ� ഇത�ന� (ണച�ലവ�റണന� (�ഞ� എൻറ� അചൻറ� കയ�ൽ ന�ന�� മ�ർച� മ�സ� 5000/- ര9(യ�� ജ4ടൻറ� കയ�ൽ ന�ന�� ഏപ(�ൽ മ�സത�ൽ 15,000/- ര9(യ�� ഉൾറപറട എ എസ� ഐ അന�ൽക�മ�ർ സർ 20,000/- ര9( കകക9ല� ജ4�ദ�ച� വ�ങ�ചത�യ� ജ4ടൻ എജന�ട� (�ഞ� . ഞ�ൻ പ(ത�യ�യ ജകസ�ൽ എന�ക� ജക�ടത�യ�ൽ ന�ന�� (�ന3ട� ഉ(�ധ�കജള�റട മ�ൻക9ർ ��മ�� ക�ട�യ�ര�ന� . ക9ട�റത എൻറ� മകറള വ�ട�ക�ട�നത�ന�യ� ഏറ�മ�ന9ർ ക�ട��ബ ജക�ടത�യ�ൽ റക�ട�ത (ര�ത�യ�ൽ എന�ക� അന�ക9ല വ�ധ� ഉണ�യ�ട�ളത�ണ� . എന�ക� ബഹ�മ�നറപട ജക�ടത� 25,000/- ര9( അറലങ�ൽ രണ� ആൾ ��മ�� വ�വസയ�ല�ണ� ��മ�� നൽക�യ�ര�ക�നത� .. എൻറ� അഡCജകറ� (�ഞതന�സര�ച� ഞ�ൻ 09.08.2021 ത3യത� ഉചകഴ�ഞ� എൻറ� 8156938785 എന നമ��ൽ ന�ന�� എ എസ� ഐ അന�ൽക�മ�ർ സ��റന അജദഹത�ൻറ� 9447039649 എന റമ�കബൽ നമ��ൽ വ�ള�4� എന�ക� ��മ�� ക�ട�യ വ�വര� അ��യ�ച� . അജപ�ൾ അന�ൽക�മ�ർ സ�ർ എജന�ട� ജ?ഷന�ൽ വന� ��മ�� എട�കണറമന�� മ�റമട�ക�ൻ വര�ജമ�ൾ അത�ൻറ� ക�ര�ങൾ ജവണ ര3ത�യ�ൽ റ4യണറമന�� (�ഞ� . “20000/- ര�പ ന�രത� തനതന�" എന�� ഞ�ൻ ആ സ�റ�ന��ട� ന��ദ�ചന��ൾ അത�ൽ 15,000/- ര�പ എസ� ഐ അബ�ൽ സ��ർ ത"�ണ�നപ�ത$ന�� അത�ൻതറ "�ര%ങൾ തട�മ�ട� �ടകണതമന��, പ�ത�$ എസ� ഐ ആണ�. എ�� ഞ�ൻ എഴ�ത�$�ന� ജ�മ%� "�ട��ള പര�പ�ട�ക� ഞ�ൻ എഴ�ത� ത"�ട��ന� പ�തന എന� എ��വർക�� ജ�മ%� "�ട�$�ന�, ന"സ� ��ക��, മ��%മ�$�ട� "�ണണ�, മ��%മ�$�ട� വ�" എന�� മറ�� എജന�ട� (�ഞ� . ”

¶74

The learned counsel for the petitioner contended that the

¶75

FIR does not disclose anything to infer that the petitioner had demanded or attempted to obtain any undue advantage. There is a specific allegation in the above extracted FIS that the petitioner

¶76

and the other accused represented to Sri.Vijay.P.Victor, brother of the defacto complainant that they had to spend money and the

¶77

W.P(Crl) No.407 of 2021

¶78

¶79

subsequent allegations in Ext.P1 would show that the petitioner received Rs.15,000/- through the other accused. It is profitable to

¶80

extract the penal provision, Section 7 of the Act, which reads

¶81

thus:

¶82

“7. Offence relating to public servant being bribed .—Any public servant who,—

¶83

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

¶84

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

¶85

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

¶86

Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

¶87

Illustration.—A public servant, “S” asks a person, “P” to give him an amount of five thousand rupees to process his routine ration card application on time. “S” is guilty of an offence under this section.

¶88

Explanation 2.—For the purpose of this section,—

¶89

(i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his

¶90

W.P(Crl) No.407 of 2021

¶91

¶92

personal influence over another public servant; or by any other corrupt or illegal means;

¶93

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.”

¶94

The specific allegation of the defacto complainant in Ext.P1

¶95

is that the petitioner and the other accused represented to the brother of the defacto complainant that they would have to spend money in connection with the case and that the petitioner received money through the other accused. Explanation 2 to Section 7 makes it clear that it shall be immaterial whether such person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party. Therefore, the contention of the petitioner that no offence under Section 7 of the Act is revealed in the allegations in Ext.P1 cannot be sustained.

¶96

The learned counsel for the petitioner relying on Charansingh v. State of Maharashtra (AIR 2021 SC 1620) : [(2021) 5 SCC 469] contended that preliminary enquiry was required before the registration of the crime. In Charansingh's case (supra) the Apex Court held thus:

¶97

“14. In the context of offences relating to corruption, in para 117 in Lalita Kumari , this Court also took note of the decision of this Court in P. Sirajuddin v. State of Madras in which case this Court expressed

¶98

W.P(Crl) No.407 of 2021

¶99

¶100

the need for a preliminary enquiry before proceeding against public servants.

¶101

While expressing the need for a preliminary enquiry before proceeding against public servants who are charged with the allegation of corruption, it is observed in P. Sirajuddin that :

¶102

“before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of indulging into corrupt practice and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person who is occupying the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this Department.

¶103

It is further observed that : ( P. Sirajuddin case SCC, p. 601, para 17 )

¶104

“when such an enquiry is to be held for the purpose of finding out whether criminal proceedings are to be initiated and the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the person against whom the allegations are made and documents bearing on the same to find out whether there is a prima facie evidence of guilt of the officer, thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.”

¶105

15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable

¶106

W.P(Crl) No.407 of 2021

¶107

¶108

offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.”

¶109

A Two Judge Bench of the Apex Court in State of

¶110

Telangana v. Managipet Alias Mangipet Sarveshwar Reddy [(2019) 19

¶111

SCC 87] held thus:

¶112

“ 34 . Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.”

¶113

After referring to Charansingh (supra) and other relevant

¶114

precedents, a Three Judge Bench of the Apex Court in Central

¶115

Bureau of Investigation v. Thommandru Hannah Vijayalakshmi (AIR

¶116

2021 SC 5041) : (2021 SCC OnLine SC 93) held thus:

¶117

“ Hence, all these decisions do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted. The decision in Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that context, the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available, the officer recording the FIR can proceed against the accused on the basis of the information without conducting a Preliminary Enquiry.”

¶118

The conclusion based on the precedents referred above is

¶119

that where the relevant information regarding prima facie

¶120

W.P(Crl) No.407 of 2021

¶121

¶122

allegations disclosing a cognizable offence is made available, the

¶123

officer concerned can register FIR and proceed further even without conducting a preliminary enquiry. Therefore, the contention of the learned counsel for the petitioner that the FIR was registered

¶124

against the petitioner without conducting a preliminary enquiry has no legal base.

¶125

Coming to the application of Section 17-A of the Act. It is the contention of the learned counsel for the petitioner that the Investigating Officer ought to have obtained approval from the competent authority as provided under Section 17-A of the Act.

¶126

Section 17-A of the Act reads thus:

¶127

“17-A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—

¶128

(a ) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

¶129

(b ) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

¶130

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

¶131

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of

¶132

W.P(Crl) No.407 of 2021

¶133

¶134

accepting or attempting to accept any undue advantage for himself or for any other person:

¶135

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.”

¶136

The approval as provided in Section 17-A comes into play

¶137

only when the alleged offence is relatable to any recommendation

¶138

made or decision taken by a public servant in discharge of his official functions or duties. This view is fortified by the decision of

¶139

this Court in Shankara Bhat and others v. State of Kerala and others [2021 (5) KHC 248] and Venugopal v. State of Kerala [2021 (5) KLT 287] .

¶140

In the present case, the allegation is that the petitioner and the other accused accepted bribe from the relatives of the defacto complainant. The acts alleged against the petitioner are in no way relatable to any recommendation made or decision taken by the petitioner in discharge of his official functions and duties.

¶141

The learned counsel for the petitioner further contended that the Investigating agency ought to have proceeded against the

¶142

bribe givers as they have committed offence under Section 8 of the Act. Section 8 of the Act reads thus:

¶143

W.P(Crl) No.407 of 2021

¶144

¶145

“ 8 . Offence relating to bribing of a public servant. --(1) Any person who gives or promises to give an undue advantage to another person or persons, with intention-

¶146

(i) to induce a public servant to perform improperly a public duty; or

¶147

(ii) to reward such public servant for the improper performance of public duty,

¶148

shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both:

¶149

Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage:

¶150

Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage:

¶151

Provided also that when the offence under this section has been committed by commercial organisation, such commercial organisation shall be punishable with fine.”

¶152

The essential requirement for attracting the offence under

¶153

Section 8 is that the bribe giver induced a public servant to perform

¶154

improperly a public duty or to reward such public servant for the improper performance of public duty. In the factual matrix, this

¶155

Court finds nothing to show that the defacto complainant or any others related to him induced the petitioner to perform improperly

¶156

any public duty or for improper performance of any public duty.

¶157

After all, this Court is not concerned with the question whether the bribe givers committed any offence or not. This Court

¶158

is only concerned with the question whether the allegations contained in the FIS which formed the basis of the registration of

¶159

W.P(Crl) No.407 of 2021

¶160

¶161

the crime against the petitioner revealed any cognizable offence or not.

¶162

It is settled by a long course of decisions of the Apex Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash criminal proceedings, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has been further held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations {Vide: State of West

¶163

Bengal v. Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370] } .

¶164

In State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651] , the Apex Court held that while exercising the power, it is not possible for the Court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In State of U.P v. O.P.Sharma [(1996) 7 SCC 705] a Three Judge Bench of the Apex Court observed that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr.P.C or under Articles 226 and 227 of

¶165

W.P(Crl) No.407 of 2021

¶166

¶167

the Constitution of India, as the case may be, and allow the law to take its own course. This view was reiterated by another Three Judge Bench of the Apex Court in Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397], wherein the Apex Court held that such power should be sparingly and cautiously exercised only when the Court is of the opinion that otherwise there will be gross miscarriage of justice. It is trite that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final report or the complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in Mahendra K.C. v. State of Karnataka and Ors. (AIR 2021 SC 5711).

¶168

While dealing with the power under Section 482 Cr.P.C to

¶169

W.P(Crl) No.407 of 2021

¶170

¶171

quash the criminal proceedings the Apex Court in M/s.Neeharika

¶172

Infrastructure Pvt. Ltd v. State of Maharashtra and others (AIR 2021

¶173

SC 1918) concluded thus in paragraph 23 of the judgment:

¶174

In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under:

¶175

(i) xxx xxx xxx xxx xxx xxx (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

¶176

(xiii) xxx xxx xxx (xiv) xxx xxx xxx

¶177

(xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or

¶178

W.P(Crl) No.407 of 2021

¶179

¶180

not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;”

¶181

In the present case, the petitioner failed to convince this

¶182

Court that the allegations levelled against him in the prosecution records made available do not disclose the ingredients of Section 7 of the Act. The correctness or otherwise of the allegations levelled

¶183

in Ext.P1 is a matter to be tested during the course of the investigation. It is made clear that this Court has not made any observation on the merits or otherwise of the allegations levelled in Ext.P1 which formed the foundation of the registration of the FIR under challenge.

¶184

The Writ Petition (Criminal) lacks merits. It stands dismissed.

¶185

Sd/K.BABU, JUDGE

¶186

KAS

¶187

W.P(Crl) No.407 of 2021

¶188

¶189

APPENDIX OF WP(CRL.) 407/2021

¶190

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE FIR DATED 12.08.2021 IS PRODUCED HEREWITH AND MARKED AS EXHIBIT P1. Exhibit P2 THE TRUE COPY OF THE SUSPENSION ORDER DATED 29.08.2021 Exhibit P3 THE TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN BAIL APPLICATION 6805/2021 DATED 10.09.2021.

T.A Abdul Sathar v. the State of Kerala

Case brief

What is this about?

What did the court decide?

T.A Abdul Sathar v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kootta Mohanan Vs Sub Inspector of Police

Ponnan, S/O.Madhavan Vs State of Kerala, Rep. by Excise Inspecto

A.P. Krishnan,S/O. Kori, Vs State of Kerala

M.S.Rejikumar Vs the Superintendent of Police Central Bureau of Investigation

Kunhikkari Vs State of Kerala

Mathew T.S Vs State of Kerala