V.M.Ashraf vs State Of Kerala

R.Narayana Pisharadi, J

The petitioner is the fifth accused in the case registered as VC 5/2017/IDK by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Idukki Unit under Sections 468, 471 and 120B of the Indian Penal Code and also under Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act').

There are altogether five accused in the case. The third and the fourth accused in the case were the Sub Registrars of Arakkulam Sub Registrar's Office. The petitioner, the fifth accused, was the person who was holding charge of the Village Officer of Muttom Village Office. The first and the second accused are private persons.

The first accused had purchased 35 cents of wet land on 15.05.2006 from one M.M.Joseph. However, the nature of the land was shown as "nilam nikathu purayidam" (wet land converted into dry/garden land) in the sale deed which was registered by the third accused, who was then the Arakkulam Sub Registrar. On 23.01.2009, the first accused transferred the above property in the name of his wife, the second accused, as per a gift deed. In that document, the nature of the land was shown as dry/garden land. The gift deed was registered by the fourth accused, who was then the Arakkulam Sub Registrar. The petitioner, the fifth accused, was the Special Village Officer of Muttom Village Office during the period from 13.06.2008 to 01.06.2009. The Village Officer was on casual leave for three days from 10.02.2009. The fifth accused was in charge of the Village Officer during that three days. On 11.02.2009, while holding charge of the Village Officer of Muttom Village Office, the fifth accused issued a possession certificate to the second accused in respect of the above land, without stating the nature of the land in that certificate.

The third respondent had filed a complaint against nine persons in the Court of the Enquiry Commissioner and Special Judge, Kottayam, alleging commission of corrupt practices in connection with the granting of building permit to the second accused in the wet land. The Special Court, Kottayam ordered to conduct a quick verification with regard to the allegations stated in that complaint. The VACB conducted a preliminary enquiry and submitted the enquiry report in the Special Court, recommending only departmental action against the public servants concerned.

The complaint was thereafter transferred to the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha. After considering the preliminary enquiry report, the Special Court at Muvattupuzha directed the VACB to register a case against accused 1 to 5 and to conduct investigation. Accordingly, Annexure-A1 F.I.R was registered against them for the offences mentioned earlier.

The allegation against the petitioner is that, though he was aware of the fact that the land was shown as wet land in revenue records, he misused his official position as Village Officer and that he issued possession certificate to the second accused without specifying the nature of the land in the certificate, thereby enabling the second accused to obtain permit from the Panchayat for construction of a commercial building in that land.

After conducting investigation, the VACB filed Annexure-A9 final report in the Special Court to refer the case as "further action dropped".

After hearing the prosecution and the third respondent and considering the final report, the Special Court found that the final report cannot be accepted. As per Annexure-A7 order dated 27.10.2020, the Special Court directed to conduct further investigation.

The fifth accused in the case has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code'), challenging Annexure-A7 order passed by the Special Court.

Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the third respondent.

The land in question was wet land as per the village records. However, during the investigation conducted, it has been revealed that the land had been converted into dry land many years ago. The investigating officer had formed an opinion that the third and the fourth accused, the Sub Registrars, had no duty to verify the nature or class of the land at the time of registration of the document and therefore, there was no sufficient ground to prosecute them. In Annexure-A7 order, the Special Court has agreed with this finding made by the investigating officer.

However, the Special Court found that, whether the omission made by the petitioner to specify the nature of the land in the possession certificate was deliberate and with the evil design to enable the second accused to obtain building permit from the Panchayat, is a matter required detailed investigation. The Special Court also took note of the fact that the petitioner was holding charge of the Village Officer only for a period of two days and when he issued the possession certificate, he was aware of the fact that, in the revenue records, the nature of the land was shown as wet land.

Annexure-A2 is the copy of the possession certificate issued by the petitioner to the second accused. It is dated 11.02.2009. The nature or class of the land is not stated in this certificate. It is stated in this certificate that it was issued for the purpose of producing in the Office of the Muttom Grama Panchayat. But, it is not stated in this certificate that it was issued for the purpose of obtaining building permit from the Panchayat.

The first question to be considered is, as per any law or procedure or practice which existed at the relevant time, whether it was incumbent upon the petitioner, who was holding the office of a Village Officer, to specify the nature of the land in a possession certificate issued by him. The prosecution or the third respondent has got no case that, at the relevant time, there was any legal or statutory obligation on the part of a Village Officer to show the nature of the land in a possession certificate to be issued by him. Learned Public Prosecutor or the learned counsel for the third respondent has not brought to the notice of this Court any provision of law or any circular issued by the Government or any instruction given by the Government or any other competent authority which mandated a Village Officer, at the relevant time, to specifically state in a possession certificate the nature or class of the land. The prosecution or the third respondent has no case that the petitioner issued the possession certificate to the second accused not in the form in which it is usually issued. When there was no statutory or legal obligation on the part of the petitioner to specifically state the nature or class of land in the possession certificate, it cannot be found that he had illegally or fraudulently issued the certificate to the second accused by abusing his official position as a Village Officer. No criminal action is legally maintainable against the petitioner merely on the ground that he did not specify the nature or class of land in the possession certificate issued to the second accused.

Merely for the reason that the petitioner was holding charge of the Village Officer only for two or three days and it was during that period that he issued the possession certificate to the second accused, it cannot be found that the petitioner had shown undue haste in issuing the certificate. A Village Office is a public service institution. Usually, large number of ordinary persons go to the Village Office for many urgent matters, especially for obtaining certificates of various nature. In such a situation, if the Village Officer is absent for any reason and if the officer holding charge of the Village Officer does not attend to usual matters, the functioning of the Village Office will come to a standstill. If there is no legal or procedural hurdle, a person holding the charge of a Village Officer, even if only for a short period, is expected to provide the public the services required.

Learned counsel for the petitioner invited the attention of this Court to the decision in NOIDA Entrepreneurs Association v. NOIDA : AIR 2011 SC 2112 and contended that undue haste shown by the petitioner in issuing the possession certificate to the second accused leads to a presumption of mala fides. This decision has no application to the facts of the present case. It was a case in which contract for execution of work was awarded to a contractor, without inviting any tenders, on a false ground of urgency. In the instant case, as noticed earlier, no illegal or irregular act was committed by the petitioner. In the second place, as already found, there was no undue haste on the part of the petitioner in issuing the possession certificate to the second accused. It was an act done as a part of the ordinary course of business in a Village Office.

It was immaterial that the petitioner had personal knowledge that, in the revenue records, the nature of the land was recorded as wet land. He was bound to issue the possession certificate stating only the facts or matters required. Further, though the revenue records showed the land as wet land, investigation of the case has revealed that it had been converted into dry land many years ago. Learned Special Judge himself has found that the land was converted prior to the enactment of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. If that be so, in a possession certificate issued on 11.02.2009, the fact that the Village Officer did not specifically state that, as per records, the land was wet land, cannot have any special significance.

By no stretch of imagination, it can be found that the possession certificate issued by the petitioner was a false document and it was used by any person as genuine. Therefore, the offences punishable under Sections 468 and 471 of the Indian Penal Code are not attracted against the petitioner.

The offence under the PC Act alleged against the petitioner, which is shown in Annexure-A1 F.I.R, is under Section 13(2) of the Act which states the prescribed punishment for the offence defined under Section 13(1) of the Act of committing criminal misconduct by a public servant. Section 13(1) of the Act has got four clauses. Neither the learned Public Prosecutor nor the counsel for the third respondent has pointed out, the offence under which clause of Section 13(1) of the Act, has been committed by the petitioner by not specifying the nature of the land in the possession certificate issued by him. However, it appears that the allegation against the petitioner is that he committed an offence punishable under Section 13(1)(d) of the Act. The Special Court has also proceeded on that assumption.

Section 13(1)(d) of the Act provides that, a public servant is said to commit the offence of criminal misconduct, if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

A perusal of Section 13(1)(d) of the Act makes it clear that, if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under that provision. The three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) of the Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. Under Section 13(1)(d)(ii) of the Act, "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person, would amount to criminal misconduct. Under Section 13(1)(d)(iii) of the Act, if a public servant, while he holds office, obtains for any person any valuable thing or pecuniary advantage without any public interest, it would amount to criminal misconduct. Obtaining of "any valuable thing or pecuniary advantage" by the public servant himself or by any other person is necessary to attract an offence under Section 13(1)(d) of the Act.

In the instant case, there is no allegation against the petitioner that he obtained any valuable thing or pecuniary advantage from the first or the second accused for issuing the possession certificate. There is also no allegation that the second accused had obtained any pecuniary advantage for the reason that he obtained a possession certificate without specifying the nature of the land in it. What remains to be considered is whether the second accused or any other person had obtained any valuable thing.

Can a possession certificate be considered as a 'valuable thing' within the purview of Section 13(1)(d) of the Act? In Sangeetha v. Deputy Superintendent of Police : 2018(3) KHC 423 : 2018 (3) KLT 25, this Court has held that the expression 'valuable thing' in the context of Section 13(1)(d) of the Act means thing which should have money value or market value. In that case, it was held that a hall ticket issued by a University to a candidate for appearing in the examination cannot be considered as a 'valuable thing' within the purview of Section 13(1)(d) of the Act.

In view of the decision in Sangeetha (supra), it has to be found that the possession certificate issued by the petitioner to the second accused cannot be considered as 'valuable thing' in the context of Section 13(1)(d) of the Act.

The Special Court has ordered further investigation against the petitioner only on the basis of conjectures and surmises. Annexure A-7 order, as against the petitioner, is not sustainable in law and it is liable to be set aside.

Consequently, the petition is allowed. Annexure-A7 order, as far as it relates to the petitioner, is set aside. Annexure-A9 final report filed by the investigating officer, as far as it relates to the petitioner, is accepted and all criminal proceedings against the petitioner based on Annexure-A1 F.I.R are quashed.

All pending interlocutory applications are closed.