Prevention of Corruption; K.A. Hashim Vs. State [Kerala High Court, 01-09-2016]

Prevention of Corruption Act, 1988 – Section 13(2) – Misconduct by the public servants – As far as a final report or the charges are concerned, Section 13(2) of the PC Act alone cannot be said to have an independent existence without the junction of the exact misconduct along with Section 13(2) of the PC Act.

Prevention of Corruption Act, 1988 – Section 13(2) – Further Investigation by the CBI into the missing of OMR sheets relating to the valuation of the answer papers – In the final report, it has been vaguely alleged that the public servants have favoured a category of candidates to procure employment, through misconduct by the public servants. In such case, the person/persons, who procured employment through the commission of misconduct by the public servants, are also particeps criminis and such person also ought to have been arraigned as accused in the case. Instead of that, the investigating officer has chosen to cite them as charge witnesses.The investigating officer has not made them approvers or accomplices, whereas they have been allegedly cited as charge witnesses in the case. The said act of the investigating officer cannot be approved.

Final Report


IN THE HIGH COURT OF KERALA AT ERNAKULAM

B. KEMAL PASHA, J.

Crl.M.C. Nos.791, 5593 & 5660 of 2015 and W.P.(C) No.18488 of 2016

Dated this the 1 st day of September, 2016

CC.NO. 26/2014 OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, (VIGILANCE) THIRUVANANTHAPURAM CBCID CRIME NO. 133/CR/OCW-1,TVM/2011

PETITIONER/ACCUSED

K.A.HASHIM, AGED 58 YEARS, S/O.ABUBECKER, SALMA, VEMBAYAM.P.O., THIRUVANANTHAPURAM. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN

RESPONDENT/STATE/COMPLAINANT

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.(CRIME NO.133/CR/OCW-1/TVPM/2011, THIRUVANANTHAPURAM). BY SR PUBLIC PROSECUTOR SRI.P.NARAYANAN

O R D E R

Crl.M.C. No.5593/2015 has been preferred by A3 and A4, Crl.M.C. No.5660/2015 has been preferred by A5 and A6 and Crl.M.C. No.791/2015 has been preferred by A7 in CC No.26/2014 of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram, which has arisen from CBCID Crime No.133/CR/OCWI/TVM/2011. The aforesaid petitioners have come up for getting the final report in CC No.26/2014 in the aforesaid crime, quashed. W.P.(C) No.18488/2016 has been preferred by the petitioner seeking a further investigation by the CBI into the missing of OMR sheets relating to the valuation of the answer papers involved in the aforesaid crime.

2. Heard learned Senior Counsel Sri.P.Vijaya Bhanu for the petitioners in Crl.M.C. No.5593/2015, learned Senior Counsel Sri.B.Raman Pillai for the petitioners in Crl.M.C. No.5660/2015, learned counsel Sri.S.Rajeev for the petitioner in Crl.M.C. No.791/2015, Sri.R.T.Pradeep and Sri.Nagaraj Narayanan for the petitioners and learned Senior Public Prosecutor Sri.P.Narayan. Heard learned counsel Sri.B.H.Mansoor for the petitioner, learned Standing Counsel for the CBI Sri.P.Chandrasekharan Pillai, and also Sri.George Poonthottam in W.P.(C) No.18488/2016.

3. Learned Senior Counsel and the other learned counsel for the petitioners have invited the attention of this Court to the final report, which is Annexure-I in Crl.M.C. No.5593/2015. It has been argued that the final report is vague to the core and the same cannot be acted upon by a court of law. Apart from that, it has been pointed out that the offence under the

Prevention of Corruption Act, 1988

allegedly committed by the accused has been shown as the offence under Section 13(2) of the PC Act. At the same time, it has not been pointed out in the final report as to what is the exact nature of the misconduct allegedly committed in the matter by the accused. Further, it has been pointed out that apart from vaguely alleging that the public servants had favoured some persons in procuring employment, the identity of those persons have not been specifically revealed in the final report.

4. On going through the final report and on hearing all the learned counsel for the petitioners, it seems that the aforesaid arguments forwarded by the learned counsel for the petitioners are fully correct. The court below ought not to have taken cognizance of the offences based on the vague final report filed by the investigating officer in the matter. As rightly pointed out by the learned counsel for the petitioners, the petitioners are entitled to know as to what exactly is the offence alleged against them. Here, the investigating officer has chosen to file the final report alleging the offence under Section 13(2) of the PC Act. At the same time, when specific misconducts are defined under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)(d) and 13 (1)(e) of the PC Act, the investigating officer ought to have revealed in the final report as to what exactly the nature of misconduct committed by them. Instead of that, it has been merely alleged that they have committed the offence under Section 13(2) of the PC Act. Section 13(2) of the PC Act is the penal provision for the misconducts specifically mentioned under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1) (d) and 13(1)(e) of the PC Act. Apart from that, even under Section 13(1)(d) of the PC Act, instances of separate misconducts are shown.

5. In short, as far as a final report or the charges are concerned, Section 13(2) of the PC Act alone cannot be said to have an independent existence without the junction of the exact misconduct along with Section 13(2) of the PC Act. For example, in a case wherein a misconduct as defined in Section 13(1)(a) of the PC Act is alleged against an accused, the penal provision should be incorporated in the final report or charge as an offence under Section 13(2) read with Section 13(1)(a) of the PC Act. It is trite that the accused are entitled to know as to what should be the offence committed by them in order to defend the charges properly. The present instance is nothing but the denial of the principles of natural justice. Matters being so, the final report requires correction or clarification, as the case may be.

6. Apart from that, this Court could notice a gross illegality in the final report. In the final report, it has been vaguely alleged that the public servants have favoured a category of candidates to procure employment, through misconduct by the public servants. In such case, the person/persons, who procured employment through the commission of misconduct by the public servants, are also particeps criminis and such person also ought to have been arraigned as accused in the case. Instead of that, the investigating officer has chosen to cite them as charge witnesses. This Court could have swallowed it, had they been made approver/approvers. The investigating officer has not made them approvers or accomplices, whereas they have been allegedly cited as charge witnesses in the case. The said act of the investigating officer cannot be approved.

7. It seems that the court below has merely taken cognizance of the offences most mechanically without application of mind. At the time of taking cognizance under Section 190(1)(b) Cr.P.C., the court below ought to have applied its mind in the final report. In case of shortcomings, the court below is not powerless to order a further investigation, if required or correction or clarification in the final report, if required. The court below has not chosen to act timely in the matter. The court below ought to have returned the final report for correction or clarification or the court below ought to have ordered further investigation in the matter, if such an investigation was required.

8. On hearing all the parties, this Court is of the view that a mere correction or clarification cannot improve the present final report in any manner. According to the learned Senior Public Prosecutor, the investigating officer has collected material evidence against the accused. This Court has not gone through the evidence so far collected by the investigating officer in the matter. At the same time, whatever be the evidence collected by the investigating officer, the present final report cannot be improved through a correction or clarification. The present final report is liable to be quashed.

9. By quashing the final report, this Court is of the view that, that should not be the end of the matter. Justice has to be done. When the investigating officer had allegedly collected evidence, it is for the investigating officer to see that a prosecution should go on in the matter. Therefore, what is now required is a further investigation in the matter, for filing a fresh final report, without the aforesaid shortcomings. The investigating officer shall make use of the evidence already collected and shall conduct a further investigation to correct the aforesaid anomalies pointed out by this Court. The investigating officer shall take note of the aforesaid observations and suggestions made by this Court in carrying out such a further investigation for the filing of a fresh final report in the matter.

10. Regarding the further investigation sought for by the writ petitioner by the CBI, this Court is of the view that when this Court has ordered a further investigation in the matter by the investigating officer, the investigating officer shall look into the complaints forwarded by the writ petitioner also, regarding the missing of OMR sheets relating to the valuation of the answer papers. The investigating officer shall carry out an investigation into those aspects also.

11. After such further investigation in the matter, instead of filing a supplementary final report, the investigating officer in the present circumstances shall file a fresh final report before the court below.

Crl.M.C. Nos.791/2015, 5593/2015 and 5660/2015 and W.P.(C) No.18488/2016 are disposed of accordingly.