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2014 DIGILAW 2355 (BOM)

Cajy Fernandes v. State of Goa

2014-11-27

F.M.REIS, R.M.BORDE

body2014
JUDGMENT : R. M. BORDE, J. The petitioner is praying for quashment of the First Information Report No.6/2014 dated 6/03/2014 registered 'by the Officer in charge of Anti-Corruption Bureau, North Goa District, under the provisions of Section 13(2) read with Section 13(1)( d) of Prevention of Corruption Act, 1988 against the petitioner on the basis of the complaint lodged on 18/12/2013 by respondent no.2. 2. It is alleged in the complaint that the accused persons who arc members of Colva Village Panchayat in connivance with Secretary of Colva Village Panchayat hatched a criminal conspiracy with malafide intention while holding office as public servants and issued the NOC/licenses to garages/illegal shed in UBI’s Pride Apartment and facilitated the encroachment of public access in the property bearing survey no.36/5C of village Colva so as to provide pecuniary benefits to Mr. Xavier Fernandes by overlooking the complaints of the residents of UBI's Pride apartment and the locals. The complainant claims to be an Social Activist and also a member of the Common Wealth Human Rights Organization, New Delhi. The substance of allegation~ in the complaint as recorded in complaint is reproduced as below: "The Complainant states that "Portofino" Bar & Restaurant. Shop G-2 & G-6. in UBI's Pride Apts., at 4th Ward, Calva Saleete, Goa is an illegal structure constructed permanently with concrete walls, iron pillars constructed on open space of 250 sq. mts. without obtaining permission from the TCP, Village Panchayat of Colva and other relevant Government authorities and has managed to get an illegal House Number i.e. H.No.416/4(G-2 & G-6) for the said garages which in fact is open space to be used a parking space for the residents of UBI's Pride Apts. The complainant states that "Portofino" Bar & Restaurant has fixed a shed on the open space/public access which is to be used for parking only, thereby causing a lot of traffic nuisance and inconvenience to the public/tourists who visit the Colva Beach everyday due to vehicles which are parked on both sides of the road. The complainant states that Mr. Xavier Fernandes Proprietor of "Portofino" Bar & Restaurant has connived with some Panch members of the Village Panchayat of Colva and fabricated documents and produced before the Panchayat Body and managed to get N .O.C. to run the Portofino Bar & Restaurant where the Panchayat Body has accordingly imposed House Tax. Light Tax, Trade Tax. etc. Xavier Fernandes Proprietor of "Portofino" Bar & Restaurant has connived with some Panch members of the Village Panchayat of Colva and fabricated documents and produced before the Panchayat Body and managed to get N .O.C. to run the Portofino Bar & Restaurant where the Panchayat Body has accordingly imposed House Tax. Light Tax, Trade Tax. etc. amount to Rs.600/-. The Complainant states that if one carefully examines the documents, it shows the criminal nexus/broad conspiracy between the Panchayat Body of Colva, the Excise Department, the Electricity Department, the Health Officials, etc. all working hand-in-gloves with each other. The complainant states that if one carefully examines the documents obtained or received under RTI Act, it can be clearly seen that the present Sarpanch Mr. Snowken Gonsalves and the ruling Panchayat Body have bent all rules and have turned a blind eye and have further renewed licence/documents inspite of several complaints form residents of UBI's Pride Apartments and the locals. The complainant states that he had addressed an application to the Secretary, Village Panchayat of Colva, seeking from the Panchayat of Colva the procedures and the criteria followed in issuing N.O.C.'s/Iicences to "Portofino" Bar & Restaurant Shop G-2 & G-6, in UBI's Pride Apts., at 4th Ward, Colva Salcete, Goa. The Complainant states that the entire Panchayat body refused to provide information on "Portofino" Bar & Restaurant. The Complainant met the Sarpanch Mr. Snowken Gonsalves and informed him that the Panchayat Body/Secretary has informed the complainant that the information cannot be provided as it is personal to which the complainant informed the Sarpanch and the Members of village Panchayat of Colva that he would file a complaint before the Director of Vigilance to take necessary action against the present Panchayat Body as to how the present Panchayat Body has connived and issued N.O.C. to "Portofino" Bar & Restaurant, which is run by the brother of a Panch Member Mr. Cajie Fernandes, by violating all rules and laws. The complainant states that the information provided by the Secretary of the Office of the Village Panchayat of Colva under Ref.No.VP/ SVCG/1778/13-14 dated 26.11.2013 was provided only after 45 days of the said application, only after one of the Panch members insisted that the information should be provided to the complainant as it is in public interest. The complainant states that the information provided by the Secretary of the Office of the Village Panchayat of Colva under Ref.No.VP/ SVCG/1778/13-14 dated 26.11.2013 was provided only after 45 days of the said application, only after one of the Panch members insisted that the information should be provided to the complainant as it is in public interest. The Panchayat Body thereafter insisted that the complainant should pay and take the necessary information even if there is a delay in providing information if the complainant wants the information, which the complainant refused to collect the said information as it passed 45 days and the information should be supplied free of cost. The complainant states that it was to his surprise that one of the Panch Members paid the necessary fees and got the information and handed it over to the complainant. The complainant states that Mr. Xavier Fernandes, Poprietor of Portofino Bar & Restaurant, Shop G-2 & G-6, in UBI's Pride Apts. at 4th Ward, Colva Salcete, Goa is the brother of one of the ruling Panh Members Mr. Cajie Fernandes along-with the Sarpanch Mr. Snowken Gonsalves has played a very important role in obtaining/ renewing licence of Portofino Bar & Restaurant inspite of several complaints by residents of UBI's Pride Apts., at 4th Ward, Colva, including Pollution Control Board & Director of Food & Drugs. The complainant if one carefully examines the Trade Tax, the Light Tax, the House Tax, etc. it can be clearly seen that the Sarpanch and the Panchayat Body had vested interest in helping their own persons, family members of the Panch/Panchas in fixing up Trade tax for Bar & Restaurant Business. The Complainant states that the present Panchayat Body has charged House/Trade Tax for Fast food joints i.e. Cherry Tomato, Lavina's Fast Food Joint, Syndicate Bank, etc. Rs.6,000/- as House and Trade Tax." 3. The learned Counsel appearing for the petitioner inviting our attention to the allegations leveled in the complaint contends that on bare perusal of the complaint no offence under the provisions of the Prevention of Corruption Act, 1988 is disclosed. The offence alleged against the petitioner, who is one of the members of Village Panchayat is under Section 13(1)(d) of the Prevention of Corruption Act punishable under Section 13(2) of the Act of 1988. Section 13(1) (d) and Section 13(2) read as under: 13. The offence alleged against the petitioner, who is one of the members of Village Panchayat is under Section 13(1)(d) of the Prevention of Corruption Act punishable under Section 13(2) of the Act of 1988. Section 13(1) (d) and Section 13(2) read as under: 13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- (d) 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; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. 4. What is alleged in the complaint is that one Mr. Xavier Fernandes, Proprietor of 'Portofino' Bar and Restaurant has connived with some Panch Members of the Village Panchayat of Colva and fabricated documents and produced before the Panchayat Body and managed to get NOC to run the Portofino Bar and Restaurant. It is alleged that there is a criminal nexus/broad conspiracy between the Panchayat Body of Colva, the Excise Department, the Electricity Department, the Health Officials, etc. all working hand-in-gloves with each other. The allegations contained in the complaint are quite general in nature and do not specify the specific acts allegedly committed by the petitioner. Even otherwise, the ingredients of Section 13 (1)(d) of the Act of 1988 are not attracted. all working hand-in-gloves with each other. The allegations contained in the complaint are quite general in nature and do not specify the specific acts allegedly committed by the petitioner. Even otherwise, the ingredients of Section 13 (1)(d) of the Act of 1988 are not attracted. The requirements to attract Section 13(1)(d), is that the accused shall by corrupt or illegal means, obtain for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtain for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtain for any person any valuable thing or pecuniary advantage without any public interest. The phrase ‘valuable thing’ refers to any thing or moveable property, whereas pecuniary advantage refers to monetary benefits. On bare perusal of the complaint, it does not disclose that the petitioner has in any other way for himself or for any other person secured any available thing or pecuniary advantage. The acts allegedly committed by petitioner do not attract provisions of Section 13(1) (d). As such, the FIR registered alleging commission of offence under Section 13(1) (d) against petitioner deserves to be quashed. In this context, reference can be made to the judgment of the Supreme Court in the case of State of Haryana & Ors. V/s. Bhajan Lal and Ors. reported in 1992 Supp (1) SCC 335 : [2013 ALL SCR (O.C.C.) 1]. The Supreme Court in para102 has laid down the principles of law, for exercise of inherent powers for quashing of the FIR. Para102 reads thus: 102. V/s. Bhajan Lal and Ors. reported in 1992 Supp (1) SCC 335 : [2013 ALL SCR (O.C.C.) 1]. The Supreme Court in para102 has laid down the principles of law, for exercise of inherent powers for quashing of the FIR. Para102 reads thus: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down ay precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 5. In the matter of C.K. Jaffer Sharief V/s. State (Through CBI) reported in (2013) 1 SCC 205 : [2013 ALL SCR 167], the appellant besides holding office as the Minister of Railways was the head of the two public sector undertakings in namely, RITES (Rail India Technical and Economic Services Ltd.) and IRCON (Indian Railway Construction Co. Ltd.). It is alleged that the Minister prevailed upon RITES and IRCON to take 4 employees on deputation to London so as to facilitate the Minister to take their assistance while he was undergoing medical treatment. It is alleged that the Minster in performing certain tasks connected with the duties as a Minister has committed an offence attracting provisions of Section 13(2) and 13(1) (d) of the Prevention of Corruption Act. The appellant/Minister presented proceedings seeking quashment of the FIR. While dealing with the issue, the Supreme Court has observed in paragraph 17 of the judgment: ".... It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons...." ".... If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1) (d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. " 6. As has been observed above, in our opinion the complaint does not disclose allegations satisfying existence of ingredients of the offence under Section 13(1) (d) punishable under Section 13(2) of the Prevention of Corruption Act. As such, the FIR to the extent of commission of the offence punishable under Section 13(1) (d) and Section 13(2) of the Protection of Corruption Act, stands quashed. It is needless to mention that if the Investigating Agency on the basis of material brought before the agency and on the basis of allegations made by complainant in the complaint is satisfied as regards existence of grounds or circumstances necessitating further investigation or inquiry in respect of any other 'offence, it would be permissible for the Investigating Agency to investigate into the matter and the instant decision shall not be treated as bar for taking steps in accordance with law. 7. Rule is accordingly made absolute in the aforesaid terms. Petition allowed.