Officials are not liable for corruption charges regarding compounding offences if actions were taken under regulations prior to the fixed minimum fee introduction. Notifications under repealed Acts remain effective unless expressly revoked.

ORDER :

1. Accused Nos. 2, 4 and 7 in Crime No.VC.02/2021 of the Vigilance and Anti-Corruption Bureau, Kozhikode, have preferred this Crl.M.C. under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (2023), seeking the following prayers:

(i) Call for the records leading to Annexure A-1

(ii) Quash Annexure A-1 FIR and all proceedings pursuance to the same against the petitioners.

(iii) issue such other orders as this Hon'ble Court deem just and proper.

2. Heard the learned counsel for the petitioners and the learned Special Public Prosecutor.

3. The prosecution case, as per the FIR, is that the accused persons, who are the Revenue officials of Thamarassery Taluk Office, seized vehicles which were found to be used for illegal transportation of soil, mines and minerals from 02.01.2015 to 25.05.2016, illegally compounded the offence and fined the offenders by corruptly accepting a meagre amount of Rs.4,17,000/- instead of Rs.15,25,000/-, and thereby caused a loss of Rs.11,08,000/- to the State Exchequer. On this premise, the prosecution allegation is that the accused committed offence under Section 13 (1)(d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act, 1988' hereinafter).

4. While assailing the allegations against the petitioners, the learned counsel for the petitioners mainly asserted two points. The first point is that, insofar as imposition of lesser fine by the petitioners as alleged by the prosecution is concerned, the same would not stand in the eye of law. In view of the decision of this Court in Annexure A2, a batch of writ petitions, i.e. W.P.(C).No.14605/2015 (A) and other cases, this Court considered the question as to whether any minimum amount for compounding the offence of this nature by the Government. In paragraph No.24 of the said judgment after referring the compounding provision in Kerala Minor Mineral Concession Rules , 2015 (for short, ‘the KMMC Rules 2015' hereinafter), this Court found that no clear guidelines were laid down as to how the fee should be determined and unbridled power on the authority to exercise discretion either excessively, prejudicing an alleged offender or subverting the deterrent measure intended by the Legislature and the executive Government by levy of nominal fees, could be gathered. At the same time, this Court found that the penal provision in the Mines and Minerals (Development and Regulation) Act , 1957 (for short, ‘the MMDR Act, 1957’ hereinafter), if taken as a guideline, the compounding exercise could not be left to the absolute discretion of the authority. Thus, the argument of the learned counsel for the petitioners is that thereafter Annexure A3 G.O.(Ms) No. 51/2017/ID, dated 21.06.2017 was issued by the Industries Department of the Government of Kerala prescribing a minimum compounding fee, and prior to that, no minimum compounding fee had been fixed. Therefore, the fixation of a lesser amount as compounding fee, in the absence of any minimum limit, by exercising the discretion of the officers concerned, would not constitute an offence.

5. The next point argued by the learned counsel for the petitioners is to nullify the contention raised by the prosecution that the petitioners and other accused persons were not authorized to compound the offence. According to the learned counsel for the petitioners, as per Annexure A14 S.R.O.No.860/1995, dated 22.06.1995 in conformity with clause (iv) of Rule 3 of the Kerala Minor Mineral Concession Rules , 1967, notification was issued and as per the notification, the officials of the Revenue Department, viz., Tahsildar, Revenue Divisional Officer, District Collector, Municipal Secretary, M