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2000 DIGILAW 213 (KER)

Mohammed Sheriff v. State of Kerala

2000-03-31

K.A.MOHAMMED SHAFI

body2000
Judgment :- K.A. Mohamed Shafi, J. The 10th accused in C.C. 2/99 on the file of the Enquiry Commissioner and Special Judge, Kozhikode has filed this M.C. to quash the entire proceedings against him. 2. On the basis of the charge-sheet laid by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Palakkad in Crime No. 1/97 the above case is registered against 11 accused persons for the offences punishable under Ss.1203,409, 420,468,471 and 477A read with 34 of I.P.C. and S.13(1)(d) read with 13(2) of the Prevention of Corruption Act. The prosecution allegation is that the 9th accused, the then Minister of Irrigation, Government of Kerala accused Nos. 1 to 6 and 11 who were the officials in the Irrigation Department and 8th accused, the then Government Secretary in the Irrigation Department entered into a conspiracy with the 7th accused, Contractor of Kuriarkutty Karappara Irrigation Project, abused their official position and collided with the 7th accused for his gaining pecuniary advantage by cheating the Government to the extent of Rs. 57,10,225, violating the norms and conditions and creating false documents and misappropriated the Government money. 3. The 10th accused is the son of the 7th accused, contractor. In Annexure B charge-sheet laid by the investigating officer before the court the allegation made against the 10th accused, petitioner herein is to the effect that he with the common intention of accused 1 to 9,11 and 12 during period between 14th July 1995 and 28th June 1996 acted on behalf of the 7th accused and enabled the 7th accused to get pecuniary advantage by cheating the Government to the extent of Rs. 57,10,225 and thereby committed the offences punishable under Ss.120(b) and 420 read with 34 of I.P.C. 4. 57,10,225 and thereby committed the offences punishable under Ss.120(b) and 420 read with 34 of I.P.C. 4. The petitioner has contended that he has been implicated in this case absolutely without any material simply because of the fact that he is the son of the 7th accused, the contractor, that he was present at the time of inauguration of the work, that he was power of attorney holder of the 7th accused and that he was seen at the site during the execution of the work, without any material to connect him with the offences alleged under Ss.120B and 420 r/w 34 of I.P.C. It is contended that when the case was registered on 29th January 1997 as evidenced by Annexure A, F.I.R. there ere only seven accused and at the very belated stage when Annexure B charge-sheet was laid by the investigating officer in 1999, the petitioner is implicated as the 10th accused without any material to make out a prima facie case against him. It is also contended by the petitioner that himself and the 7th accused have filed C.M.P. Nos. 290 and 291/99 seeking discharge before the Enquiry Commissioner and Special Judge, Kozhikode. The learned Special judge dismissed their applications by the common order dated 30th December 1999 without considering the valid and substantial contentions of fact and law raised by them in his case and therefore, he has filed the above M.C. before this Court to quash the proceedings under S.482 of the Cr.P.C. 5. It is also submitted that the Special Judge has discharged the 10th accused on the ground that no sanction was obtained to prosecute him. He has further contended that the Special Judge without applying his mind and considering the specific contentions raised by the petitioner passed Annexure D order dismissing his application seeking discharge. The counsel for the petitioner submitted that the Special Judge has not considered the specific contention raised by the petitioner in Annexure C petition and after considering the contentions raised against the 7th accused, by making some sweeping remarks in para 8 of Annexure D order the Special Judge found that there are sufficient grounds to presume that the petitioner was also a party to the alleged criminal conspiracy and dismissed the petition. 6. In the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, the Supreme Court has observed as follows: "28. 6. In the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, the Supreme Court has observed as follows: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have .the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." The above principles should be borne in mind while examining the question whether there are sufficient materials to proceed against the accused or he should be discharged in a criminal case. 7. The Public Prosecutor submitted that criminal conspiracy is alleged against the petitioner and the other accused in this case and therefore, the entire allegations made against all the accused and the charge laid against them should be considered to find out whether the ingredients of the offences punishable under Ss.120B and 420 of I.P.C. are made out against the petitioner. He submitted that the allegation made against the accused in this case is that the work abandoned by the Government of Kerala in the year 1986 due to environmental objections and lack of sanction from the Central Government is revived on the basis of the conspiracy hatched out by the accused in this case whereby huge pecuniary advantage is given to the 7th accused and very financial loss is caused to the State. He further submitted that there are sufficient materials on record to prove the involvement of the petitioner in this case and apart from the evidence of C.W. 20, the approver in this case, C. Ws. 60 to 71 have also spoken about the involvement of the petitioner in the execution of the work in this case. He also submitted that by the very nature conspiracy being hatched out in secrecy, direct evidence will be very difficult and the conspiracy can be proved by taking into consideration of all the facts and circumstances of the case and the materials on record. Therefore, according to him, there are sufficient materials to implicate the petitioner in this case and the learned Magistrate is perfectly justified in dismissing the application seeking discharge. He further submitted that conspiracy under S.120B of the I.P.C. itself is an offence apart from the individual acts done by the conspirators. Therefore, according to him, as there is evidence on record to establish that the petitioner was executing the work for more than an year, there is prima facie case against the petitioner and the prosecution launched against him cannot be quashed. 8. As already noted the name of petitioner did not figure in Annexure A, F.I.R. and he is implicated only while laying Annexure B charge-sheet in the year 1999. In Annexure B charge-sheet and Annexure F order granting sanction to prosecute some of the other accused under Ss.13(1) and (2) of the Prevention of Corruption Act, all the allegations are made against the 7th accused-contractor. It is stated therein that the contract is awarded to the 7th accused in violation of the laid down procedures. There is no reference to the 10th accused with regard to the agreement entered into between accused Nos. 4 and 7, the execution of the work or payment of the amount for execution of the work to the 7th accused except the allegation in the charge-sheet that the petitioner acted on behalf of A-7 to execute the work and enabled A-7 to get pecuniary advantage. The counsel for the petitioner submitted that the entire case is foisted due to political enmity and personal vendetta against the former Irrigation Minister and his associates. 9. In Annexure B charge-sheet laid by the investigating officer as against the petitioner, it is stated as follows: "In furtherance of the conspiracy, Sri. The counsel for the petitioner submitted that the entire case is foisted due to political enmity and personal vendetta against the former Irrigation Minister and his associates. 9. In Annexure B charge-sheet laid by the investigating officer as against the petitioner, it is stated as follows: "In furtherance of the conspiracy, Sri. K.M. Mohammed Sheriff, S/o. T.B.Kunhimahin Haji (A-7), PadhurHo4Ke, Thekkil (P.O.), Kasarakode ( A10 ) in furtherance of the CONSPIRACY and in the COMMON INTENTION of A-1 to A-9, A-11 and A-12 (Approver) during the period between 14th July 1995 and 281 June 1996 acted on behalf of A-7 to execute the work and enabled A-7 to get PECUNMRY ADVANTAGE by CHEATING the Government to the extent of Rs. 57,10,225 and thereby committed an offence punishable under S.120(b), 420 r/w 341.P.C." In Annexure B charge-sheet there is no mention about the conspirators or the details of the conspiracy as far as the petitioner, 10th accused is concerned. There is no allegation that the 10th accused has done any work or acted in pursuance of the conspiracy or he executed the contract work in violation of law or knowing that it was in violation of any law. Therefore, the very allegation of the offences made against the petitioner in the charge is vague and not specific. 10. The counsel for the petitioner submitted that there is no material to connect 'the petitioner with the alleged conspiracy and he had knowledge of the illegal act of conspiracy. He also submitted that on the basis of the mere allegation that the petitioner acted as the power of attorney holder of his father, the 7th accused-contractor and in the absence of independent overt act alleged against the petitioner and without any evidence or allegation of the work done by the petitioner as per the conspiracy or in violation of law, the petitioner cannot be arrayed as an accused in this case. 11. In the decision in Hiralal v. Delhi Administration AIR 1972 SC 2598, the Supreme Court has observed as follows: "The real charge against him is that of conspiracy under S.120-B I.P.C. But there is no prima facie evidence in respect of this charge. The documentary evidence only shows that the appellant made applications on behalf of the other accused, that he filed his vakalatnamas and that he identified-them as the real claimants. The documentary evidence only shows that the appellant made applications on behalf of the other accused, that he filed his vakalatnamas and that he identified-them as the real claimants. It is well known that the main income of many lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts. The other accused must have told the appellant that they were the real claimants. He believed them and agreed to act for them. It seems to us that he did nothing beyond what a lawyer is authorised to do in a Court of Law. There is no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants.. Again, there is no evidence whatsoever that there was any concert between him and the other accused antecedent to the filing of the applications and vakalatnamas in court by him. In the absence of such evidence, it cannot be said that there is prima facie evidence for the offence of conspiracy against him." 12. As already noted there is absolutely no allegation or material to prove that there was in fact, a conspiracy between the petitioner and the other accused and there was prior concert or meeting of mind between the petitioner and the co-conspirators. Apart from the allegation that the petitioner has acted as the power of attorney of his father, the 7th accused, no other independent overt act is alleged against him to saddle him with the offence of conspiracy in this case. 13. It is well settled that for framing charge against the accused it is the duty of the prosecution to satisfy the court that the materials on record make out a prima facie case against him and conjunctures and surmises cannot constitute the ground for framing charges. 14. In the decision in G.S. and Mfg. Co. v. State of Maharashtra AIR 1972 SC 545, the Supreme Court has observed as follows: "Under sub-s.(2), if upon consideration of all the documents referred to in S.173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. Co. v. State of Maharashtra AIR 1972 SC 545, the Supreme Court has observed as follows: "Under sub-s.(2), if upon consideration of all the documents referred to in S.173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub-s.(3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in sub-s.(2). 16 the argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the document referred to in S.173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution." 15. In the decision in G.D. Singh v. State of M.P.1990 MPLJ 39, a Single Judge of the M.P. High Court has observed as follows: "9. In a criminal trial the accused has the shield of presumptive innocence around him. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution." 15. In the decision in G.D. Singh v. State of M.P.1990 MPLJ 39, a Single Judge of the M.P. High Court has observed as follows: "9. In a criminal trial the accused has the shield of presumptive innocence around him. Barring offences where the Legislature, in public interest, excludes means rea as a constituent of the crime and makes the criminal liability absolute, actus reus (unlawful act) and mens rea (guilty mind) both must concur to constitute the crime. Therefore, before any charge may be framed against any accused in respect of any offence under the Penal Code, it is for the prosecution to satisfy the Court that the material on record makes out a prima facie case against him or that it is such that it gives rise to a strong suspicion that he has committed the crime in question in all its ingredients. 10. It may be pointed out that conjectures and surmises cannot constitute the material contemplated as furnishing ground for framing of charge." 16. As already noted, the materials available in this case against the petitioner are that he was power of attorney of his father, the 7th accused-contractor during the period from 14th July 1995 to 28th June 1996 while executing the contract work, that he was seen at the site during the inauguration of the work and he was also seen at the site of the work several times during the execution of the work. It is contended by the petitioner that he was not the power of attorney holder of the 7th accused from 14th July 1995 to 28th July 1996, during which period the work was executed. It is further contended that even if he had acted on behalf of his father or as his power of attorney during the execution of the work, it will not constitute an offence since there is absolutely no allegation of any knowledge of the conspiracy or that the work was being executed in violation of any law or knowing that it is contrary to law as against the petitioner. 17. 17. It is settled law that no vicarious or constructive liability will be attracted in offences punishable under the Indian Penal Code unless and until the ingredients of the provisions of S.34 or S.120b or s. 149 of the I.P.C. are established. The principle of agency under power of attorney in civil law is not attracted in criminal cases. Therefore, in order to saddle with the offence punishable under Ss.120 B and 420 of I.P.C. there should be specific allegation of mens rea and actus reus made against the petitioner which is significantly absent in this case. 18. In the decision in T.C. Mathai v. District and Sessions Judge (1999) 3 SCC 614 the Supreme Court has observed as follows: "S.2 of the Power of Attorney Act, 1882 empowers the donee of a power of attorney to do anything'in and with his own name and signature' by the authority of the donor of the power. Once such authority is granted, the said Act recognises that everything done by the donee shall be as effectual in law as if it had been done by the donee of the power in the name and with the signature of the donor thereof. 14. Under the English law, 'every person who is sui juris has a right to appoint an agent for any purpose whatsoever, and he can do so when he is exercising statutory right no less than when he is exercising any other right', [vide Jackson and Co. v. Napper(1&&6) 35 Ch. D. 162 at p. 172]. But this Court has pointed out that the aforesaid common law principle does not apply where the act to be performed is personal in character, or when it is annexed to a public office or to an office involving any fiduciary obligation, [vide Ravulu Subba Rao v. C./.7".(A.I.R.1956 S.C.604 )]. 19. In the decision in Rakhal Chandra v. Emperor AIR 1990 Cal. 647, a Full. Bench of the Calcutta High Court has observed as follows: "In the case of Dharani, the evidence is not quite so extensive. The evidence against Dharani consists, first of all, of the evidence of association with Sushil staying with him at a mess in Rajshahye both being students of the Rangpore College. I need not say that that of itself would be a highly insufficient foundation for conviction of Dharani merely upon evidence which implicated Sushil and certain others. The evidence against Dharani consists, first of all, of the evidence of association with Sushil staying with him at a mess in Rajshahye both being students of the Rangpore College. I need not say that that of itself would be a highly insufficient foundation for conviction of Dharani merely upon evidence which implicated Sushil and certain others. There is also the fact that when Dharani was arrested he immediately denied that he had ever been in Rajshahye in his life. That may be some evidence that he was endeavouring to extricate himself from being accused of something connected with Rajshahye; but again that in itself is no evidence that Dharani was taking part in the dacoity." 20. Therefore, it is clear that due to the mere fact that the petitioner was the power to attorney of his father, the 7th accused-contractor or he had associated with the 7th accused, the petitioner cannot be saddled with the criminal liability punishable under S. 120B or 420 of the I.P.C. 21. The confession statement of the 12th accused who is approver and cited as C.W. 20, recorded by the Judicial First Class Magistrate, Palakkad is produced as Annexure E along with this petition. In that statement C.W. 20 has only stated that the petitioner participated along with his father, the 7th accused and the villagers in the inauguration of the work. He has also stated that the petitioner along with the 7th accused used to come to the work site. In the statements of C. Ws. 60 to 71 recorded by the investigating Officer, also it is only mentioned that at the time of Inauguration of the work in July 1995 the petitioner and his father were present and they have executed the work. Except the mere statement that the work for the canal was executed by the 7th accused and his son, the petitioner herein, there is absolutely nothing in the statements given by C.W. 20, the approver and C.Ws. 60 to 71 before the investigating officer that the petitioner participated in the alleged conspiracy or that there was any prior concert or meeting of mind between the petitioner and the other conspirators or that the petitioner executed the work with the knowledge of the conspiracy or that the work was done in violation of any law or contrary to any law. 22. 22. Therefore it is clear from the materials available on record that absolutely QRevidence of common intention to share the conspiracy or to commit any illegal act is available as against the petitioner in this case. Unless and until there are materials available in the case evidencing conspiracy and thought sharing, the offence punishable under S.120B of the I.P.C. cannot lie against the accused. In this case the allegations that the petitioner was the power of attorney holder of his father, the 7th accused during the relevant period, that he was seen at the site at the time of inauguration along with his father and others and that he was found executing the contract work along with his father, are absolutely insufficient to make out a prima facie case punishable under Ss.120B and 420 of I.P.C. against the petitioner. Therefore, it is clear that even if the entire allegations made against the petitioner in this case are accepted, there is no material to connect the petitioner with the conspiracy or to show he had knowledge of the conspiracy or the illegal acts alleged to have committed by the accused. Therefore it is patent that there is not even a remote possibility of the petitioner finding guilty in this case at the time of trial for the offences alleged against him. Under the circumstances I find that this is an appropriate case wherein the inherent jurisdiction of this Court under S.482 of the Cr.P.C. has to be exercised and the prosecution against the petitioner should be quashed. Hence this Crl. M.C. is allowed and the prosecution against the petitioner in C.C. 2/99 on the file of the Enquiry Commissioner and Special Judge, Kozhikode is quashed.