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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 7TH DAY OF OCTOBER 2021 / 15TH ASWINA, 1943
CRL.MC NO. 2861 OF 2020
ARISING OUT OF FIR VC 2/2017/PTA OF VACB PATHANAMTHITTA
PETITIONER:
ASOKA KUMAR S.,AGED 39 YEARSS/O.SIVADHASAN PILLAI, NELLIPARAMBIL VEEDU, KALLELIBHAGOM, KARUNGAPPALLY, KOLLAM-690519BY ADVS.KALEESWARAM RAJSRI.VARUN C.VIJAYKUM.A.ARUNAKUM.THULASI K. RAJSMT.MAITREYI SACHIDANANDA HEGDE
RESPONDENTS:
1 STATE OF KERALAREPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031
2 VIGILANCE AND ANTI -CORRUPTION BUREAUREPRESENTED BY ITS DIRECTOR, PMG, OPPOSITE VIKASBHAVAN BUS DEPOT, THIRUVANANTHAPURAM, KERALA-695033
3 SMT.SEEMA SATHYANESANAGED 45 YEARSW/O.SATHYANESAN, KOLATHARA HOUSE, VAZAPALLY WEST.P.O, CHANGANASSERY, KOTTAYAM.686103
SMT S L SYLAJA-PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 28.09.2021, THE COURT ON 07.10.2021 PASSED THE
FOLLOWING:
Crl.M.C.No.2861/20202
R.NARAYANA PISHARADI, J**********************
Crl.M.C.No.2861 of 2020-------------------------------------
Dated this the 7th day of October, 2021-------------------------------------------
O R D E R
The petitioner is an Excise Inspector. He is the first accused
in the case registered by the Vigilance and Anti-Corruption
Bureau (VACB), Pathanamthitta as V.C.No.02/2017/PTA under
Sections 7 and 13(1)(d) read with 13(2) of the Prevention of
Corruption Act, 1988 (for short 'the Act'). The second and the
third accused in the case are Preventive Officers of the Excise
Department.
2. On 20.04.2016, the accused, while working in the
Excise Enforcement and Anti-Narcotic Special Cell,
Pathanamthitta had allegedly seized 27 cans, each containing 33
litres of spirit, unauthorisedly kept in the rented house in which
the third respondent was residing. A case was registered in that
Crl.M.C.No.2861/20203
matter as O.R No.40/2016.
3. On 21.04.2016, the third respondent was produced
before the Judicial First Class Magistrate, Thiruvalla, in the case
registered against her. The third respondent then made
Annexure-I written complaint before the learned Magistrate.
4. The crux of the allegations in Annexure-I complaint made
by the third respondent before the learned Magistrate was that,
the accused, who were Excise Officers, obtained Rs.4,62,000/-
from her on the promise that they would exclude her from the
Abkari case and that they produced only Rs.2,25,000/- in the
Magistrate's Court.
5. Learned Magistrate forwarded Annexure-I complaint to
the Enquiry Commissioner and Special Judge,
Thiruvananthapuram. The learned Special Judge directed the
VACB to conduct a preliminary enquiry in the matter.
6. The Dy.S.P VACB, Pathanamthitta conducted a
preliminary enquiry into the allegations in Annexure-I complaint
and filed a report before the Special Court that no criminal action
Crl.M.C.No.2861/20204
was required to be taken against the accused persons.
7. The Special Court did not accept the findings in the
preliminary enquiry report. The Special Court directed the VACB
to conduct a further enquiry. After conducting further
verification, the Dy.S.P, VACB, Southern Circle,
Thiruvananthapuram filed a report that there was no acceptable
evidence to find that the accused had obtained Rs.4,62,000/-
from the third respondent.
8. The third respondent filed objection to the verification
report filed by the VACB. She filed additional documents in the
Special Court to prove the source of Rs.4,62,000/- allegedly
given by her to the accused.
9. As per Annexure-II order dated 30.10.2017, the
Special Court directed the VACB to register a case against the
accused and to conduct investigation.
10. Pursuant to the direction made by the Special Court in
Annexure-II order, the VACB registered Annexure-III FIR against
the petitioner and the two other Excise Officers.
Crl.M.C.No.2861/20205
11. After conducting investigation, the Dy.S.P, VACB filed
Annexure-V final report in the Special Court stating “Further
Action Dropped”.
12. The Special Court did not accept Annexure-V final
report. As per Annexure-VII order dated 22.05.2020, the Special
Court directed the investigating officer to conduct further
investigation in the case. The relevant portion of Annexure-VII
order reads as follows:
“17. Therefore, the final report filed by the
investigating officer to treat the case as “further
action dropped” is not accepted. The
investigating officer is directed to obtain
necessary approval/sanction as required under
the provisions of the Prevention of Corruption
Act, 1988 and to conduct a meaningful and
effective investigation as indicated above and
shall file report.”
13. This application is filed by the first accused under
Section 482 of the Code of Criminal Procedure, 1973 (for short
'the Code') for setting aside Annexure-VII order and to accept
Annexure-V final report.
Crl.M.C.No.2861/20206
14. The investigating officer has filed a statement before
this Court. It is mentioned in this statement that the point which
has been ordered to be investigated further by the Special Court
has already been investigated by the VACB.
15. Inspite of service of notice on the third respondent,
there was no representation for her at the time of hearing this
case. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
16. Learned counsel for the petitioner contended that the
matters which have been ordered to be further investigated by
the Special Court are matters which have already been
thoroughly investigated by the VACB and there is no scope for
conducting any further investigation on those aspects. Learned
counsel further contended that, when the investigating officer
has based his opinion on the materials collected during the
investigation and when such opinion depicts a reasonable view of
the matter, the Special Court would not be justified in issuing a
direction to conduct further investigation.
Crl.M.C.No.2861/20207
17. The allegations in Annexure-I complaint made by the
third respondent before the learned Magistrate are as follows:
When spirit was seized from the rented house in which she was
residing, the three Excise Officers (A1 to A3), who had come to
her house for detecting the case, obtained Rs.4,62,000/- from
her, on the promise that she would not be made an accused in
the case. She had raised Rs.3,62,000/- from Muthoot Finance
and Rs.1,00,000/- from Kavadaparambil Finance by pledging
(gold ornaments?) and she had receipt with her to prove the
same. It was this amount which she gave the accused and only
Rs.2,25,000/- was produced before the court.
18. One cannot ignore the fact that the complaint against
the Excise Officers was made by the third respondent at the first
and the earliest opportunity, that is, when she was produced
before the learned Magistrate. But, the question looms large why
the Excise Officers shall produce Rs.2,25,000/- in the
Magistrate's Court as money seized from the house of the third
respondent, if it was part of the money obtained by them as
Crl.M.C.No.2861/20208
bribe from the third respondent.
19. Annexure-V final report shows that the investigating
officer had produced before the Special Court 36 documents
which had been seized or collected and verified by him during the
investigation.
20. What courses are left open to a Magistrate in a situation
where the investigating agency submits final report (refer report
or closure report) stating that no case is made out against the
accused on account of lack of evidence or for any other reason?
21. In such a situation, the Magistrate may adopt any of the
following courses: (1) If he agrees with the final report, he may
accept it and close the proceedings (2) He may find, on a
consideration of the final report, that the opinion formed by the
investigating officer is not based on a full and complete
investigation. Then, he has ample jurisdiction under Section
156(3) of the Code to direct a further investigation. (3) If the
Magistrate forms the opinion that, the facts set out in the final
report, constitute an offence, he may take cognizance of the
Crl.M.C.No.2861/20209
offence under Section 190(1)(b) of the Code, notwithstanding the
contrary opinion of the investigating officer (See Abhinandan
Jha v. Dinesh Mishra : AIR 1968 SC 117).
22. In addition to the above courses, if it it is a case in
which a private complaint within the meaning of Section 190(1)
(a) of the Code was referred to the police under Section 156(3)
of the Code and if the investigating officer has filed a refer
report, the Magistrate could also fall back upon the private
complaint which was initially lodged. The Magistrate may take
cognizance of the offence under Section 190(1)(a) of the Code
on the basis of the original complaint and proceed to examine
upon oath the complainant and his witnesses under Section 200.
If he adopts this course, he may hold or direct an inquiry under
Section 202 of the Code if he thinks fit. Thereafter, he may
dismiss the complaint or issue process, as the case may be (See
H.S.Bains v. State : AIR 1980 SC 1883).
23. Therefore, inspite of the opinion of the investigating
officer that there is no sufficient evidence to send the accused for
Crl.M.C.No.2861/202010
trial, the Special Court may decline to accept the police report.
The Special Court may find that the opinion formed by the police
is not based on a full and complete investigation and that there is
scope for conducting further investigation. Then, the Court has
ample power to direct further investigation under Section 156(3)
of the Code.
24. However, the Court has to scrupulously scrutinize the
final report and the accompaniments by applying its judicial mind
before it takes a decision to disagree with the opinion of the
investigating officer (See Sampat Singh v. State of Haryana :
(1993) 1 SCC 561).
25. The Court has to independently apply its mind to the
facts emerging from the investigation. Once the conscience of the
court is satisfied, from the materials on record, that the police
has not conducted proper investigation, it is the duty of the Court
to ensure that the investigation is conducted in accordance with
law. If deficiency in investigation is visible or can be perceived by
lifting the veil hiding the realities, the Court shall order further
Crl.M.C.No.2861/202011
investigation but it shall then point out what is the deficiency in
the investigation already conducted. When the Court disagrees
with the closure report and orders further investigation, the Court
shall specifically point out the matters left out and not
investigated. The Court shall pinpoint what all matters were not
investigated by the police and what aspects require further
investigation. It is not enough to make a general observation that
the investigation conducted was incomplete or defective. If in the
opinion of the Court the investigation conducted was not fair, the
Court shall state the reasons for coming to such conclusion.
26. In Nupur Talwar v. C.B.I : AIR 2012 SC 1921, the
Supreme Court had occasion to observe as follows:
“Since the CBI wanted the matter to be closed, it
was appropriate though not imperative for the
Magistrate to record reasons, for differing with the
prayer made in the closure report. After all, the CBI
would have surely wished to know, how it went
wrong”.
27. In the instant case, the investigating officer had formed
opinion that the complaint made against the accused by the
Crl.M.C.No.2861/202012
third respondent cannot be true because the materials collected
during the investigation showed that her version that she raised
the amount by pledging gold ornaments in two finance
companies was not true. The version of the third respondent was
that she obtained Rs.3,62,000/- from Muthoot Finance,
Chengannoor and Rs.1,00,000/- from Kavadaparambil Finance,
Eramallikkara by pledging gold ornaments on 20.04.2016. It was
found out during the investigation that the third respondent had
pledged gold ornaments in Kavadaparambil Finance on
14.03.2016 and obtained Rs.3,40,000/- from there. It was found
out from records that, the third respondent obtained an advance
amount of Rs.3,50,000/- from Muthoot Finance on 20.04.2016
and by using that amount, she closed the gold loan in
Kavadaparambil Finance. She pledged the gold ornaments on the
same day in Muthoot Finance for Rs.3,62,000/- and obtained
Rs.12,000/- in cash after deducting the amount of Rs.3,50,000/-
which she had received as advance. The investigating officer also
found out from records that, on 20.04.2016, the third respondent
Crl.M.C.No.2861/202013
had obtained Rs.1,00,000/- from Kavadaparambil Finance by
pledging other gold ornaments. The statements of witnesses also
revealed the above transactions.
28. There is no doubt that the learned Special Judge was
not bound by the above opinion of the investigating officer. The
learned Special Judge is competent to disagree with the final
report and direct further investigation. However, existence of
valid and good reasons is a prerequisite for issuing such a
direction. In the instant case, the learned Special Judge has
passed an order in detail, stating the reasons for directing further
investigation. But, the question is, whether the reasons stated
are valid or not.
29. With regard to the investigation conducted, as to the
source of the amount given as bribe, the Special Court has stated
in the impugned order as follows:
“In the above circumstances, the Investigating
officer was duty bound to probe the said matter
thoroughly with reference to all the records
maintained at 'Muthoot Finance, Chenganoor'
viz., the Trial Balance, account books and the
Crl.M.C.No.2861/202014
account books and records of 'Kavadaparambil
Finance.' It is to be noted that the investigating
officer had not done any effective investigation
regarding the said aspect with the object of
finding truth rather he simply arrived at a
conclusion that the accused have seized only an
amount of Rs.2,25,000/- from the house of the
complainant.”
30. The Special Court has further observed as follows:
“ Upon going through the entire materials
produced before the court, this court finds that
the investigation done by the Investigating officer
is incomplete. The veracity of the version
regarding takeover of gold loan of complainant
from 'Kavadaparambil Finance' by 'Muthoot
Finance' is to be probed thoroughly to bring out
the truth regarding the allegations of demand
and acceptance of bribe leveled against the
accused by the complainant. A meaningful and
purposeful investigation has to be conducted as
to the time at which the accused Excise officials
reached at the house of the complainant on
20.04.2016 as well as about the alleged demand
and acceptance of Rs.4,62,000/- from the
complainant.”
Crl.M.C.No.2861/202015
31. Learned Special Judge has directed further investigation
mainly on two aspects. (1) The veracity of the version of “take
over transaction” of gold loan (2) The time at which the Excise
Officers reached the house of the third respondent.
32. Regarding the “take over transaction” of gold loan by
the Muthoot Finance from Kavadaparambil Finance, the final
report reveals that the investigating officer had seized or
collected and verified the relevant registers and records in the
above two finance companies. The details of the gold loan
transactions made by the third respondent in the two finance
companies are explained in the final report. The relevant
registers and records were also produced in the Special Court
alongwith the final report. In such circumstances, the learned
Special Judge was not justified in directing to conduct further
investigation with reference to such records kept in the two
finance companies.
33. Learned Special Judge has disagreed with the opinion of
the investigating officer with regard to the “take over transaction”
Crl.M.C.No.2861/202016
of gold loan for the reason that there were material omissions in
the statements made by some witnesses during the preliminary
enquiry conducted in this case and also during the departmental
enquiry conducted by the Excise Department.
34. The statements given by the witnesses in the
departmental enquiry conducted by the Excise Department
should not have been considered by the Special Court in forming
an opinion on the final report filed by the investigating officer.
The statements, if any, given by such witnesses to the
investigating officer could only have been considered by the
Special Court in this regard.
35. Learned Special Judge has also highlighted the
omissions in the statements given by the witnesses during the
preliminary enquiry conducted by the VACB with reference to the
statements given by them during the investigation of the case
and found that the witnesses have, during the investigation,
come up with a new story regarding the gold loan availed of by
the third respondent.
Crl.M.C.No.2861/202017
36. In Gian Prakash Sharma v. Central Bureau of
Investigation :2004 Cri.L.J 3817, in a corruption case, the
Punjab and Haryana High Court had occasion to observe as
follows:
“Similarly, the learned Special Judge has also
placed reliance on the pre-investigation statements
allegedly made by the shadow witness, Sukhwant
Singh and another alleged independent witness,
namely, Surjeet Singh. In my view, their alleged
statements recorded prior to the initiation of
investigation of this case by the C.B.I. are of no
legal consequence”.
(emphasis supplied)
37. The purpose of the preliminary enquiry is only to find
out whether the information received discloses any cognizable or
not. The statement given by a witness or an accused during such
enquiry cannot be said to be a statement under Section 160 of
the Code and/or a statement recorded during the course of
investigation (See Charansingh v. State of Maharashtra : AIR
2021 SC 1620).
Crl.M.C.No.2861/202018
38. Since the purpose of the preliminary enquiry is only to
ascertain whether the information received discloses any
cognizable offence or not, the statements of witnesses recorded
during the preliminary enquiry may not be exhaustive and such
statements may not contain all details. Therefore, omissions in
such statements, cannot be a reason to find that the witnesses
have created a new story at the time of investigation of the case.
Further investigation cannot be ordered merely for the reason
that there are contradictions in the statements made by the
witnesses with reference to the statement given by them during
the preliminary enquiry.
39. Of course, the time at which the Excise Officers reached
the house of the third respondent on 20.04.2016 has got
significance. It is relevant here to note that, as per the statement
given by the third respondent during the investigation, the
second and the third accused were the persons who demanded
bribe from her and it was the second accused with whom she
entrusted the amount. There is allegation that the second and
Crl.M.C.No.2861/202019
the third accused had reached the house of the third respondent
much before the time mentioned in the records relating to the
case registered against her and that they demanded bribe from
her. The investigating officer has verified the call data records of
the mobile phones of the second and the third accused. However,
it is not proper to mention anything here in that regard because
they are not parties to the present case before this Court.
40. In the above circumstances, the reasons stated by the
learned Special Judge for directing further investigation, at least
as against the petitioner, cannot be found to be valid. Even
when there is suspicion against a person, during the
investigation, if sufficient evidence cannot be collected against
him to send him for trial, it would be a futile exercise to conduct
further investigation into the same aspects. As noticed earlier,
there is no specific allegation against the petitioner that he had
demanded bribe from the third respondent or her husband.
41. The discussion above leads to the conclusion that there
is no scope for conducting any further investigation in the matter
Crl.M.C.No.2861/202020
as against the petitioner.
42. Consequently, the petition is allowed as follows:
Annexure-VII order is set aside and Annexure-V final report
(closure report) is ordered to be accepted, only as far as they
pertain to the petitioner.
All pending interlocutory applications are closed.
R.NARAYANA PISHARADI, JUDGE
lsn/jsr
Crl.M.C.No.2861/202021
APPENDIX OF CRL.MC 2861/2020
PETITIONER'S ANNEXURES
ANNEXURE I TRUE COPY OF THE COMPLAINT DATED21.4.2016 FILED BY SMT.SEEMA SATHYANESANBEFORE THE HON'BLE JUDICIAL FIRST CLASSMAGISTRATE COURT
ANNEXURE II TRUE COPY OF THE ORDER DATED 30.10.2017IN CRL.M.P.NO.878/2016
ANNEXURE III TRUE COPY OF THE FIRST INFORMATIONREPORT
ANNEXURE IV TRUE COPY OF THE ORDER DATED 06.12.2017IN CRL.M.C NO.8026/2017
ANNEXURE V TRUECOPY OF THE FINAL REPORTANNEXURE VI TRUE COPY OF THE ORDER DATED 19.03.2020
IN CRL.M.C NO.8893/2019ANNEXURE VII TRUE COPY OF THE ORDER DATED 22.05.2020
IN VC.2/2017/PTA PASSED BY THE COURT OFENQUIRY COMMISSIONER AND SPECIAL JUDGE,THIRUVANANTHAPURAM.
ANNEXURE VIII TRUE RELEVANT PAGES OF THE ENQUIRYREPORT DATED 30.07.2016, VIGILANCEOFFICER(EXCISE)
ANNEXURE IX TRUE COPY OF THE REPORT ISSUED OTSRI.VIJAYADAS G TOGETHER WITH COVERINGLETTER DATED 09.10.2017 UNDER THE RIGHTTO INFORMATION ACT
ANNEXURE X TRUE COPY OF THE GO(RT)NO.546/2019/TAXES DATED 02.08.2019
RESPONDENTS' EXHIBITS: NIL
TRUE COPY
PS TO JUDGE