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2012 Supreme(Ker) 833
HIGH COURT OF KERALA
S.S. SATHEESACHANDRAN, J.
V.S. Achuthanandan
Versus
State of Kerala
W.P.(C).No.21529 of 2012 (M)
Decided On : 06-12-2012
Subject
Corruption - Abuse of Power
Act Referred
CRIMINAL PROCEDURE CODE : S.173, S.155
INDIAN PENAL CODE : S.201, S.420, S.120(b)
PREVENTION OF CORRUPTION ACT : S.15, S.13(2), S.13(1)(d)
Headnote
Criminal Law - Criminal Trial - Prevention of Corruption Act, 1988 - Sections 13(1)(d) and 13(2) - Indian Penal Code, 1860 - Sections 120B, 201 and 420 - Criminal Procedure Code, 1973 - Section 482 - Evidence Act, 1872 - Section 30 Constitution of India, 1950 - Article 226 - Corruption case - FIR and Proceedings - Petitioner seeks quashing of FIR and further proceedings thereof contending there was nothing illegal or improper in assignment of land to 5th accused nor in any act over passing of cabinet decision taken to grant relaxation in period fixed over alienability of land - After a new Government assumed office, previous cabinet decision taken by the former Government was cancelled and a vigilance enquiry was ordered - That was done only to tarnish his image before the public and to wreak vengeance against him since he has been spearheading relentlessly some corruption cases involving two major stakeholders in the new Government - Whether the uncontroverted allegations made prima facie establish an offence - If there is any special features present in a particular case, that also have to be looked into by court to consider whether it is expedient and in the interests of justice to permit prosecution to continue - Such special features can definitely be taken into account by the court if present in a particular case to examine whether prosecution has been launched with any oblique purpose - Held, Power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. An enquiry over the reliability or genuineness or otherwise of the allegations made in F.I.R. or complaint should not be resorted to is also pointed out making it emphatically clear that extraordinary or inherent powers do not confer an arbitrary jurisdiction on court to act according to its whim and caprice - Where criminal proceeding is sought to be quashed at initial stages, essential question to be looked into is whether uncontroverted allegations made prima facie establish an offence - Chances of conviction are bleak and no useful purpose is likely to be achieved by allowing the criminal prosecution to continue, it may quash the proceedings at a preliminary stage - Where a public servant is proceeded for having abused his position and misconducted himself either for his own gain or for some other person the two components of the offence, a physical element and a mental element, usually called actus reus and mens rea respectively must be shown to exist - When a Chief Minister is approached with a grievance by any of his subjects, whether he be his relative or otherwise, if he puts in a word to a Government official to look into the matter or even assuming the worst instructed that it has to be attended favourably that by itself, does not indicate that he had a guilty mind for perpetrating a corrupt act - Confession could be made use of against co-accused only if accused who had confessed the guilt is jointly tried with other accused - If person who has made confession is left out from array of accused it is not admissible in evidence - Statement recorded from one of them with respect to the acts alleged to have been done by him, which would show that the spine of such officer is more flexible and elastic than of rubber, and that too totally inadmissible and unacceptable in evidence, has been pressed into to inculpate petitioner, a former Chief Minister of the State, to sustain the imputations made against him of having committed acts of corruption.
For the Petitioner:K. Gopalakrishna Kurup, Senior Advocate, T.B. Hood, V. Manu, Smt. M. Isha, Advocates.
For the Respondent: R1 to R3, T. Asaf Ali, Director General of Prosecution.
Petitioner, a former Chief Minister of the State, is presently the leader of Opposition in the Kerala Legislative Assembly. He has filed the above writ petition to quash Ext.P1 FIR registered by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kasaragod, wherein he is proceeded as the 1st accused with some others, for offences punishable under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, for short, the 'Act' and Sections 120B, 201 and 420 of the Indian Penal Code, for short, the 'IPC'.
2. In ordering assignment of a piece of land in Kasaragod District in favour of 5th accused, a relative of the petitioner, and also further steps taken for relaxing the bar of alienability over such land, petitioner, then, Chief Minister, abused his official position and he had entered into a conspiracy with 5th accused, and some other public servants, including the Revenue Minister of his cabinet, to favour 5th accused violating the rules, and, later, after such assignment, in relaxing the conditions imposed for transfer of assigned land, to enable 5th accused to reap unlawful benefits, is the case imputed.
3. A new Government assuming power after the General Elections in May, 2011, cancelling the assignment order of land in favour of 5th accused and also the Council decision relaxing the bar of alienation of the land assigned to him, ordered a vigilance enquiry. Ext.P1 FIR would show that the Government Order, namely, G.O(MS) No.208/2011/Rev. dated 07.06.2011, was to conduct a vigilance enquiry into the illegal means adopted by revenue officials in the assignment of Government land in Kasaragod District to Sri.T.K.Soman, an ex-service man, who is the 5th accused, in violation of the Kerala Land Assignment Rules, 1964, and also the Council decision enabling the said Soman to alienate the assigned land in contravention of Assignment Rules then in force, for his pecuniary benefits. Vigilance enquiry was conducted by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kasaragod Unit. On the basis of preliminary enquiry and materials gathered thereof, Ext.P1 FIR was registered against eight accused persons with the petitioner, former Chief Minister, named as the 1st accused, for offences punishable under Section 13(1)(d) and 13(2) of the Act and Sections 120B, 201 and 420 of the IPC.
4. The gist of the accusation imputed, formed on the basis of preliminary enquiry, revealed by Ext.P1 FIR is thus: Petitioner, while he was the Chief Minister, exerting his influence over revenue officials got an extent of 2.33 acres of land in R.S.No.111/2 and 111/5 of Maire Village in Kasaragod District assigned in favour of his relative (A5), who was not eligible for assignment of Government land. Order of assignment of land in favour of 5th accused was made with the active involvement of two District Collectors of Kasaragod (A6 and A7), both of them colluding with the petitioner (Chief Minister), and under his direction, and, thereby, 5th accused, who was ineligible for the land, obtained undue pecuniary gain by illegal means. Principal Secretary of the Chief Minister (A4), and Personal Assistant of petitioner (A8) on the instructions and directions given by the petitioner instigated the Land Revenue Commissioner and Additional Chief Secretary (Revenue) (A3) to issue favourable orders to exempt 5th accused from alienating his land against the condition stipulated in the Kerala Land Assignment Rules, and on the basis of instructions from A4, the Land Revenue Commissioner and Additional Chief Secretary (Revenue) (A3) gave a false report to Government to grant exemption lifting the period of alienation. Since the officials in the Revenue department were not amenable for granting sanction for exemption in the period fixed for alienation of land assigned, petitioner in collusion with the then Revenue Minister (A2) got an agenda note prepared without the assistance of Revenue department, a
