Cyril Paul vs State Of Kerala

The petitioner herein is one of the many accused in Crime No.VC 04/2015 of the Ernakulam Unit of the Vigilance and Anti Corruption Bureau(VACB), registered under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988(the PC Act), on the basis of a Quick Verification conducted by the VACB on a complaint made by the second respondent herein. The petitioner seeks orders under Section 482 Cr.P.C. quashing the FIR and the further proceedings against him in the said crime on the ground that there is absolutely nothing to disclose any offence as against him. The complaint in question was filed by the second respondent before the Special Court(Vigilance), Thrissur against fourteen public servants including transferred or retired public servants. In the said complaint, the complainant has also given a list of some builders or building owners who obtained building permit from the Cochin Corporation. The complaint of the second respondent in the complaint is that by abusing their official position, or in gross violation of the Rules governing construction of buildings generally, and particularly in coastal areas, the public servants illegally issued building permits to different persons including some builders, and thereby caused heavy loss to the Cochin Corporation and the Government. Without examining whether the complaint actually discloses any offence punishable under the PC Act, 1988, or without examining whether the complaint contains the necessary elements and ingredients to constitute any type of criminal misconduct or acceptance of illegal gratification as meant and defined under the PC Act, the learned trial Judge ordered a preliminary enquiry. The VACB conducted such an enquiry, and on the basis of the report of enquiry, the Deputy Superintendent of Police, VACB registered the present crime against so many persons including the builders and building owners, whose details have been furnished in the complaint. Though the complaint is specifically against 14 persons, and the complainant has furnished the details of some builders and building owners only as the persons who obtained permits from the Corporation, the VACB registered the crime against everybody, and thus there are so many accused in the crime.

Annexure-A2 produced before this Court is a copy of the complaint filed by the second respondent in the trial court. On a reading of the complaint, I found prima facie that the issue is only concerning the construction of some buildings within the Cochin Corporation, allegedly in violation of the Rules governing such constructions. One of the constructions was challenged in a writ petition before this Court, and the said matter went up to the Honourable Supreme Court in Secretary Kerala State Coastal Management Authority v. DLF Universal Limited [(2018) 2 Supreme Court Cases 203].

On the prima facie finding, that the matter is mainly and prominently concerning violation of Rules in the matter of construction of buildings, I directed the VACB to submit a report as to whether the case actually involves any element of criminal misconduct or corruption, or whether it is only a case of violation of Rules in the matter of issuing building permits. It appears that the main allegation in the complaint is that by misusing the powers as public servants, or by issuing building permits illegally, the public servants have caused loss to the Cochin Corporation. At the initial stage, the VACB took a stand that the matter involves something to be investigated, and a statement of objection was filed to that effect. When the Court directed the VACB to go through the decision of the Honourable Supreme Court cited supra and also the decision of this Court in Ramesh Chennithala v. State of Kerala and another [2018(4) KLJ 647], and to submit a statement in detail, the VACB made a thorough probe into the facts and allegations, and the VACB submitted a statement, that prominently the issue is concerning building permits issued in violation of Rules, and that despite thorough probe nothing could be detected to find that this is a case involving corruption or criminal misconduct. In paragraph 4 of the statement of objection dated 13.03.2019, the Deputy Superintendent of Police, VACB, who is in charge of investigation has stated categorically that the Investigating Officer could not gather any material for a prosecution against the accused persons including the petitioner, that what is at the best detected is only violation of the Government Order and the Rules, and that such violation would cause only departmental action against the accused public servants. The VACB found on investigation that the public servants issued building permits in violation of the Kerala Municipality Building Rules and also the Coastal Regulation Zone Notification. In the said statement of objection, the Deputy Superintendent of Police has also reported that steps are being taken to refer the crime and to drop further proceedings against the accused persons, and that final report accordingly would be filed in the trial court.

In the interim order dated 06.12.2018, this Court had given the following direction;

"If what is alleged is prominently, or only violation of the Rules in the matter of construction, or breach of duty on the part of the public servants in granting permits for such construction, or if any public servant has caused any loss wrongfully to the Corporation or the Government, the appropriation action possible will be only to proceed against the public servants with departmental action as explained by this Court in Ramesh Chennithala v. State of Kerala and another [2018 (4) KLJ 647]. A prosecution can proceed under the PC Act only if the transaction or the acts of the accused involves any element of corruption or criminal misconduct as defined under the law. This will have to be very seriously examined by the VACB in the light of the decision of this Court in Ramesh Chennithala's case, and also the decisions of the Honourable Supreme Court on the point."

In compliance of the directions made in the interim order dated 06.12.2018, the VACB has filed a statement of objection, after thoroughly examining the factual aspects and also the decisions and directions of this Court in Ramesh Chennithala's case, that this case does not involve any element of corruption or acceptance of illegal gratification, and the issue is only concerning issuance of building permits in violation of Rules. The VACB has practically conceded that in this case there is no scope to proceed for a prosecution under the PC Act, and what is at the best possible is only departmental action against the public servants who violated the building Rules and also the CRZ Notification in issuing building permits. Now let me see whether the crime against the petitioner can be quashed.

Though the complaint in this case is seen filed specifically against fourteen serving and retired public servants, the VACB registered the FIR against so many persons on the basis of the report of Quick Verification. On a perusal of the complaint, I find that there is no definite allegation against any definite public servant regarding acceptance of illegal gratification or bribe for issuing building permits, or as to when or where or from whom any public servant accepted illegal gratification, or who exactly paid such gratification. The name of the petitioner does not figure anywhere in the complaint either as accused or among the persons and builders who obtained permit from the Corporation. It was submitted by the learned counsel for the second respondent that the petitioner herein represents a construction company. But there is no such allegation in the complaint.

It appears that the VACB is under a misapprehension as to how or on what material a crime can be registered. When a complaint is received alleging certain offence or containing some allegations made with a view to a crime being registered, the Police or the VACB will have to examine the complaint and register a crime, if the complaint discloses any cognizable offence under the PC Act. If the complaint does not disclose any such cognizable offence, the Police or the VACB cannot find out some other material of their own for registering a crime. In such circumstances, the only option is to decline action on the complaint, if the complaint does not disclose any cognizable offence against any definite person. As already stated, the complaint in this case does not specifically disclose any offence against this petitioner, and the only allegation prominently and practically is that the public servants issued building permits in violation of the Rules governing such constructions. The complaint does not disclose who among the different public servants actually issued the building permits, or whether anybody among them had accepted illegal favours or bribe, or what exactly is the offence or criminal misconduct alleged by the complainant. It appears that for registering a crime against so many persons the VACB found out some additional materials by way of Quick Verification. This is not the purpose or object of the Quick Verification ordered to be made by the Honourable Supreme Court in Lalitha Kumari's case. The object of such preliminary enquiry is only to examine whether the complaint actually discloses any cognizable offence against any definite person or persons, or whether the necessary materials for a prosecution are there in the complaint and the supporting materials, or to test the authenticity, genuineness, veracity and acceptability of the complaint. The object of such Quick Verification shall not be to collect evidence in support of the complaint. Such process of collection of evidence can be undertaken or made by the police machinery only during investigation. In this case, the Officer of the VACB who conducted preliminary enquiry collected some materials of his own, which are not there in the complaint, and on the basis of these materials, he registered the crime against so many persons. If the required details are not there in the complaint, or if the complaint as such does not actually disclose any cognizable offence punishable under any law, the prosecuting agency cannot collect materials to supply the deficiency in the complaint and to register a crime.

Yet another important aspect in this case is that everybody who obtained building permits from the Corporation is arraigned as accused in the FIR. This is yet another flaw in the prosecution process. If everybody who happened to make payment of bribe in compelling circumstances, or on illegal demand made by the public servant, is roped in under Section 120B IPC, or arraigned and prosecuted as accused, there will be nobody to give evidence in Court against the public servants, if at all any of them had accepted bribe or illegal gratification. Such payment will not amount to abetment as meant under Section 12 of the PC Act, or conspiracy as meant under Section 120B IPC. Anyway, now the VACB has found and concluded on investigation that there is no scope to proceed for a prosecution under the PC Act, and that for the violation of the building Rules and the CRZ Notification made by the public servants, they will have to be appropriately proceeded against.

The persons who obtained building permits cannot be prosecuted, when there is no allegation against them, or when the complaint does not specifically allege or disclose that any of the builders or building owners had made payment of any bribe to any public servant, or had in any manner been a party to the illegal acts committed by the public servant. It is curious to note that the name of this petitioner is nowhere mentioned or alleged in the complaint. Anyway, after a thorough investigation, the VACB has now concluded that there is no material to prosecute this petitioner or the others under the Prevention of Corruption Act, 1988, and the VACB has decided to refer the crime or to drop further action. Let appropriate legal decision be taken on such report by the trial court. When the petition came up for hearing on admission, this Court asked the learned counsel for the second respondent as to what exactly is his complaint, or whether there is any specific or definite allegation against the petitioner, or whether the second respondent has made definite allegations in the complaint, constituting any definite offence of criminal misconduct as defined under the PC Act. The learned counsel answered that it is for the prosecuting agency to find out and collect materials for a prosecution, if a complaint is received. The business or the function of the prosecuting agency is not to create a case for investigation.

In the result, this petition is allowed. Accordingly, the FIR and further proceedings against the petitioner in Crime No.VC 04/2015 of the Ernakulam Unit of the VACB, Ernakulam Unit will stand quashed under Section 482 Cr.P.C.

P.UBAID, JUDGE

TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 19/10/2004 ISSUED TO THE PETITIONER BY THE COCHIN CORPORATION.

TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 12/10/2017 ISSUED ON BEHALF OF THE CORPORATION BY THE JANA SEVANA KENDRAM.

TRUE COPY OF THE SATELLITE MAP DOWNLOADED FROM GOOGLE WEBSITE SHOWING THE OLDER CONSTRUCTIONS PRIOR TO 1991.

CERTIFIED COPY OF THE EXTRACT FROM THE BUILDING TAX REGISTER OF THE COCHIN CORPORATION SHOWING ASSESSMENT OF THE BUILDINGS CONSTRUCTED IN THE SAID AREA PRIOR TO 1991.

CERTIFIED COPY OF C.M.P.NO.530/2013 DATED NIL FILED IN NOVEMBER 2013 BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.

CERTIFIED COPY OF THE ORDER DATED 13/1/2014 PASSED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.

CERTIFIED COPY OF THE REPORT DATED 8/5/2015 SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE, VACB, ERNAKULAM UNIT BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.

TRUE COPY OF THE SALE DEED NO.1109/2003 OF THE ERNAKULAM SUB REGISTRY.

TRUE COPY OF THE BUILDING PERMIT DATED 9/6/2003 ISSUED TO THE PETITIONER AND HIS WIFE FROM THE COCHIN CORPORATION.

Crl.MC.No. 5874 of 2018

APPENDIX

PETITIONER'S/S EXHIBITS:

ANNEXURE A1 CERTIFIED COPY OF THE F.I.R. IN VAC NO.04/2015 OF THE VACB, ERNAKULAM UNIT.

ANNEXURE A2

ANNEXURE A3

ANNEXURE A4

ANNEXURE A5

ANNEXURE A6

ANNEXURE A7

ANNEXURE A8

ANNEXURE A9

ANNEXURE A10

Crl.MC.No. 5874 of 2018

RESPONDENT'S/S EXHIBITS:

ANNEXURE R(a) TRUE COPY OF THE REPORT.

ANNEXURE R(b) TRUE COPY OF THE GOVERNMENT ORDER G.O.

(MS)53/2001/STED DATED 18.07.2001

//TRUE COPY//

P.A. TO JUDGE