Prevention of Corruption; Sankara Narayanan, President and Chief Operating Officer, Asianet Satellite Communications Limited Vs. Subbiah IAS [Kerala High Court, 20-10-2016]

Criminal Procedure Code, 1973 – Section 173 – Final Report – Whether Final Report filed by the Investigation Officer can be substituted by another Final Report – Held, Court below wanted to get the Final Report substituted by another Final Report, which course is not contemplated under any of the provisions contained in the Code of Criminal Procedure. This is a case wherein the Final Report was not returned for curing defects, or for proper presentation. The court below “remitted the final report” which is unknown to legal procedure.

# Final Report

IN THE HIGH COURT OF KERALA AT ERNAKULAM

B. KEMAL PASHA, J.

CRL.M.C. No. 4941 of 2016

Dated this the 20 th day of October, 2016

CC. NO.25/2014 OF ENQUIRY COMMISSIONER & SPL .JUDGE, THIRUVANANTHAPURAM

PETITIONER/ACCUSED

SANKARA NARAYANAN, PRESIDENT AND CHIEF OPERATING OFFICER, ASIANET SATELLITE COMMUNICATIONS LIMITED, D3, SHIVAJI SAPHARI, JAWAHAR NAGAR, KOWDIAR, THIRUVANANTHAPURAM.

BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE. ADVS. SRI.M.REVIKRISHNAN, SRI.C.JAYAKIRAN.

RESPONDENTS/DEFACTO COMPLAINANT & STATE

1. SUBBIAH, IAS, FORMERLY PRINCIPAL SECRETARY, SC & ST AND POWER, GOVERNMENT OF KERALA, S/O. SANKARAN, H.NO.17/1299-4, VIVEKANANDA NAGAR RESIDENTS ASSOCIATION (VNRA-138), EDAPAZHANJI, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 001.

2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

R2 BY SR. PUBLIC PROSECUTOR SRI.C.S. HRITWIK

O R D E R

Aggrieved by order dated 09.10.2013 passed by the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram in V.C No.2/2011/SIU-II/TVPM, and the consequent Annexure-D Final Report in C.C. No.25/2014 before the court below, the accused has come up under Section 482 Cr.P.C. Based on Annexure-D Final Report, the court below has taken cognizance of the offences under

# Section 12 of the Prevention of Corruption Act, 1988

(hereinafter referred to as the ‘P.C. Act’) and Section 451 of the Indian Penal Code.

2. The accused is none other than the President and Chief Operating Officer of Asianet Satellite Communications Limited. It is alleged that he trespassed into the house of the defacto complainant Sri.Subbiah, the then Principle Secretary of SC/ST and Power to Government of Kerala, at 8.30 p.m. on 07.06.2011, and offered bribe to the defacto complainant and thus, abetted the commission of an offence punishable under the Prevention of Corruption Act, 1988, and thereby committed offences punishable under Section 12 of the P.C. Act and Section 451 IPC.

3. Initially, a crime was registered as Crime No.405/2011 of the Poojappura Police Station, Thiruvananthapuram, for the aforesaid offences based on Annexure A First Information Statement furnished by the 1 st respondent herein, who is the defacto complainant. His complaint was that on 07.06.2011 at 8.30 p.m., the accused had arrived at the house of the defacto complainant for the purpose of discussing the matters relating to the lease agreement between the KSEB and the Asianet Satellite Communications Limited for making use of the electric posts of the KSEB for the purpose of drawing cables for the network. The defacto complainant informed the accused that he could not be able to do anything by his own in the matter since the decision has to be taken by the Kerala State Electricity Board. Then, the accused had allegedly handed over a letter addressed to the Minister for Electricity which was prepared in the letterhead of the Asianet Satellite Communications Limited. It was further alleged that by requesting to take a decision based on the said letter, the accused offered a carry bag to the defacto complainant. When the defacto complainant had asked as to what was it, the accused had allegedly replied that it was some sweets which were brought by him as a present to the defacto complainant. It was also alleged that the accused insisted the defacto complainant to accept the carry bag. The defacto complainant pushed away the accused and attempted to move towards the land phone for informing the matter to the Police. Then the accused obstructed the defacto complainant from doing it. By that time, a call came to the mobile phone of the defacto complainant from the mobile phone of one of his family friends, Dr.Gunasekharan. Immediately, the defacto complainant told his friend over the mobile phone that a person was attempting to bribe him and requested him to inform the matter to the Police. It was Dr.Gunasekharan, who had informed the matter to the Police.

4. Accordingly, the Police came by 10.30 p.m. Till then, the accused was patiently waiting there. The Police came and seized the carry bag which contained a mobile phone, an amount of ₹1 lakh and also a packet of sweets. The matter was investigated upon and initially Annexure B Final Report was filed by the investigating officer, stating that the facts emerged from the investigation will not establish the commission of offences under Section 451 IPC and Section 12 of the P.C. Act and there was no scope for prosecution of the accused and consequently, referring the case as “mistake of law”.

5. Annexure B Final Report was filed before the court below. On getting Annexure B Final Report, the court below has passed Annexure C order. It seems that the court below was dissatisfied with Annexure B Final Report. In Annexure C, the court below has passed the following order:

“In the result, the final report submitted in this case is not accepted and the same is hereby remitted to the investigating agency. The investigating agency is hereby directed to file final report in accordance with law expeditiously.”

6. On getting Annexure C order, mechanically, the investigating officer has filed Annexure D Final Report for the offences under Section 12 of the P.C. Act and under Section 451 IPC. The said offences have been taken cognizance of by the court below and is presently pending as C.C.No.25/2014 before the court below. The petitioner has mainly come up by challenging Annexure C as well as Annexure D.

7. Heard the learned Senior Counsel for the petitioner and the learned Senior Public Prosecutor.

8. According to the learned Senior Counsel for the petitioner, the court below was not competent to pass an order as the one contained in Annexure C and therefore, the court below ought not to have passed such an order. It has been further argued that there is absolutely nothing in this case to invite even an attempt to commit offences punishable under Section 7 or 11 of the P.C. Act by the defacto complainant or any other person and therefore, even if the entire facts are admitted, it could not have invited an offence punishable under Section 12 of the P.C. Act. It has also been argued that there was no demand either from the defacto complainant or any other public servant for any illegal gratification or any other thing and therefore, any of the offences under Section 7 or Section 11 of the P.C. Act were not in the contemplation of anybody and in such case, there could not be an abetment to commit any of such offences.

9. Per contra, the learned Senior Public Prosecutor has pointed out that if such a stand that anybody is free to approach a public servant for offering illegal gratification, it will be as good as permitting any person to do such an illegal act and therefore, it should be treated as an abetment for the commission of such an offence.

10. On examining the facts of the case as contained in Annexure A, First Information Statement, it is evident that even the defacto complainant has admitted the fact that he had previous acquaintance with the accused. It has been clearly admitted in Annexure A that the accused is hailing from Thirunelveli. The defacto complainant is also hailing from Thirunelveli. The defacto complainant has styled the accused as a person hailing from his (defacto complainant) place. It has also been admitted that he had prior acquaintance with the accused. According to him, he had permitted the accused to come to his house only because of the fact that the accused was a person hailing from the native place of the defacto complainant and also that he had previous acquaintance with the accused. In such a case, when admittedly the defacto complainant had permitted the accused to come to the house of the defacto complainant, at any stretch of imagination, an offence under Section 451 IPC cannot be attracted and it cannot be styled as a house trespass.

11. Regarding the allegations of attempt by the accused to offer illegal gratification to the defacto complainant, it has to be noted whether the defacto complainant could have done some thing in the matter of renewing the lease agreement between the KSEB and the Asianet Communications Ltd. Admittedly, the defacto complainant was not the authority to grant such a renewal of license. Even according to the defacto complainant, he had made it clear to the accused that he was not competent to do anything in the matter and the decision in the matter had to be taken by the KSEB. In such case, the question as to whether there was anything to provoke a Senior Executive like the accused to offer illegal gratification to the defacto complainant, has also to be considered. In the light of that aspect, the offer allegedly made by the accused has to be examined.

12. When both the persons were hailing from the same place and they had previous acquaintance, it is quite normal that when the accused has visited the house of the defacto complainant, he might have offered some sweets. It has to be noted that the defacto complainant had never demanded sweets. In such case, even if sweets were offered voluntarily by the accused, it could not have been said that the same was an abetment to commit an offence under Section 7 or 11 of the P.C. Act. Even by parting with the sweets or any other illegal gratification, the accused could not have inured any benefit from the public servant.

13. Apart from all the above, the defacto complainant has no case that the accused made any attempt to escape from the spot. As things stand now, it is evident that the accused was willingly waiting for the Police for more than 2½ hours. Even according to the defacto complainant, he alone was present at his house. Had there been an intention on the part of the accused to bribe the defacto complainant, he could have escaped from the house of the defacto complainant, when no other persons were there for the rescue of the defacto complainant.

14. The learned Senior Counsel has invited the attention of this Court to the decision in

# Purushothaman v. State of Kerala, 1989 (1) KLT 521

wherein it was held:

“S.107 of the IPC which contains the definition of abetment has three clauses, and if an act of a person falls within the purview of any of them it would amount to abetment. The first and second clauses are not germane in this context and hence the third clause is reproduced here.

“A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing”.

The scope of the word “aids” has been clarified in Explanation-2 which reads thus:

“Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act”. The said explanation does not say what would or would not amount to “intentionally aids”. It only explains what is meant by aiding simpliciter. This means that an act which merely amounts to aiding the commission of an offence is not abetment. The aiding must snow-ball into “intentionally aiding” the doing of a thing. When can you say that a person has intentionally aided the commission of an offence? The commission of the act must be the dominant intention of the person who aids it. Then only it can be said that he “intentionally” aided it. If there is community of interest between the aiding person and the one who commits the offence, there is possibility to draw the inference that the dominant intention was to aid the doing of that particular act. If the person only knows or has only the reason to believe that his act would facilitate the commission of offence, it cannot be said that his dominant intention was that.

Eg:- A tells his brother B who is to undergo a surgery that the surgeon concerned (C) is a greedy person and hence the surgeon must be paid some amount in advance to have the surgery properly done. B pays the amount to C. If the acceptance of the money would amount to an offence, the act done by A in telling his brother is doing something in order to facilitate the commission of the offence. But the intention of A is to have his brother’s surgery performed properly although A knows that acceptance of the money by the surgeon is an offence. Here A’s suggestion cannot be said to be an act which intentionally aids the commission of the offence.

Mukerji, J. has observed in

# Emperor v. Ram Nath, ILR 1925 Vol.XLVII Allahabad 268

“The intention should be to aid the commission of a crime. A mere giving of an aid will not make the act an abetment of the offence…………”.

The observation made by Batty, J. in

# Bhagwant Appaji v. Kedar Kashinath, ILR 1901 Vol.XXV 202

is considered to be “one of the best expositions of the meaning of the word intent as used in the Indian Penal Code”. The learned Judge has stated thus (at page 226):

“The word intent by its etymology seems to have metaphorical allusion to archery and implies aim and thus connotes not a casual or merely possible result foreseen perhaps as a not improbable incident, but not desired but rather connotes the one object for which the effort is made and thus has reference to what has been called the dominant motive without which the action would not have been taken”.

This was followed in

# Phul Kumari v. Sheodahin, AIR 1965 Patna 507

While dealing with the expression “with intent” in S.441 of the IPC the Supreme Court has said that it means the dominant intention. (Vide

# Mathri v. State of Punjab, AIR 1964 SC 986

The same interpretation can be imported to the similar expression employed in S.107 of the IPC.”

15. The observations made in Purushothaman‘s case(noted supra) are squarely applicable to the facts and circumstances of this case. It cannot be said that there was any animus on the part of the accused to part with illegal gratification to the defacto complainant. Out of friendship, he might have offered sweets to the defacto complainant. Even though the carry bag contained a mobile phone and an amount of ₹1,00,000/-, a packet of sweets was also there, the accused has explanation that he had purchased a mobile phone for presenting it to his sister on her birthday and he had an amount of ₹1,00,000/- with him. According to him, the central lock system of his car was damaged and therefore, he could not lock his car and hence, he thought it safe for him to keep the valuable things with him. He wanted to give sweets to the defacto complainant. Therefore, he had to take the mobile phone as well as the aforesaid amount with him along with the sweets.

16. The defacto complainant has no case that the accused had offered anything apart from sweets, to him. The defacto complainant was not aware of the contents of the carry bag. Had sweets were offered on a demand made by a public servant, definitely it could have invited an offence under Section 12 of the P.C Act. Here, in this particular case, there was no demand at all. As held in

# P. Sathyanarayana Moorthy v. District Inspector of Police, State of Andra Pradesh, and another, (2015) 10 SCC 152

there should be demand, in order to invite an offence under Section 7 of the P.C. Act. When there is no demand, there cannot be any abetment for instigating the commission of an offence under Section 7.

17. Regarding the apprehension forwarded by the learned Senior Public Prosecutor that if this is permitted, it will be as good as permitting any person to approach a public servant with illegal gratification. In the light of what is contained in Section 12 of the P.C. Act, that concern is not the look-out of this Court, whereas, it is the look-out of the legislature.

18. Regarding Annexure C order it has to be noted that the operative portion of the said order is against all norms of law. On getting Annexure B Final Report, in which the facts were detailed and stated that the investigating officer had decided to drop the proceedings as “mistake of law”, the court below could have rejected the Final Report by ordering a further investigation under Section 173(8) Cr.P.C., or in the alternative, the court below could have taken cognizance of the offences, had it been there, or the court below could have accepted the Final Report. Those were the three courses open to the Special Court, on getting a Final Report on the culmination of the investigation. At the most, the court below could have directed the investigating officer to conduct further investigation under Section 173 Cr.P.C., in order to enable him to file a Final Report; whereas the court below has rejected the Final Report and the court below wanted to get the Final Report substituted by another Final Report, which course is not contemplated under any of the provisions contained in the Code of Criminal Procedure. This is a case wherein the Final Report was not returned for curing defects, or for proper presentation. The court below “remitted the final report” which is unknown to legal procedure. Matters being so, Annexure C order is not legally sustainable.

19. Based on Annexure C order, most mechanically the investigating officer was constrained to file Annexure D Final Report. From the facts, it has come out that the decision taken by the investigating officer in Annexure B Final Report to classify the proceedings as “mistake of law” seems to be perfectly correct. The court below ought to have accepted Annexure B Final Report.

20. The learned Senior Counsel has further pointed out that even though refer notice was issued to the defacto complainant, the defacto complainant has never turned up to approach the court below with a protest. In spite of notice from this Court in this proceedings, the defacto complainant, who is the first respondent herein has not chosen to appear or contest the proceedings. Even in such a circumstance, the court below has “remitted the matter” and wanted to get another Final Report substituted. From all these discussions, this Court is of the view that Annexure C order and the consequent Annexure D Final Report are liable to be quashed, and I do so.

In the result, this Crl.M.C. is allowed and Annexure C order and the consequent Annexure D Final Report are hereby quashed.

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