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2016 DIGILAW 546 (KER)

Uma Sankar v. State of Kerala

2016-06-24

B.KEMAL PASHA

body2016
ORDER 1. The petitioner is the 2nd accused in C.C.No.37 of 2015 of the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur, which has arisen from VC 9/09/EKM, for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B IPC. 2. The petitioner was the Village Officer of Puthenvelikkara Village as on 22.10.2007. A1 was the Sub Registrar of the Chennamangalam Sub Registry Office for the period from 22.08.2007 to 30.01.2008. It is alleged that A1 and A2 along with A3 hatched a criminal conspiracy. In pursuance of the conspiracy, A1 facilitated the registration of 23 sale deeds in respect of 91.10.620 acres of land in the name of A3, who is none other than a benami of Santhosh Madhavan @ Swami Amrutha Chaithanya, by violating the provisions of Section 82 of the Kerala Land Reforms Act, disregarding the ceiling limit. The allegation against the petitioner is that in pursuance of the conspiracy, he knowingly and intentionally recommended on 22.10.2007, on the date of which the application for mutation has been received, to carry out mutation of 88 acres and 66.80 cents of land without conducting proper verification. It has also been alleged that on 24.10.2007, A2 sent a clarification report recommending mutation by mentioning the lands as lands not coming under the `Michabhoomi' limit etc. It is alleged that A2 being the Village Officer not intimated the Thahsildar on receiving the application for mutation of 88 Acres and 66.80 cents of land that it exceeds the ceiling limit of 15 Acres. Precisely the allegation against the petitioner is that he has suppressed the fact that the land to be mutated exceeded the ceiling limit of 15 Acres. 3. Heard the learned counsel for the petitioner Sri.Kaleeswaram Raj and the learned Public Prosecutor. 4. The learned counsel for the petitioner has canvassed an argument that there are no ingredients to invite the offence under Section 120B IPC in the matter and the so-called conspiracy alleged as such has not been revealed in the Final Report. It has also been argued that admittedly the recommendation for mutation was made by the petitioner on the basis of Annexure IX order passed by the District Collector, Ernakulam. It has also been argued that admittedly the recommendation for mutation was made by the petitioner on the basis of Annexure IX order passed by the District Collector, Ernakulam. It is also argued that the Final Report does not reveal any allegations so as to invite the ingredients of criminal misconduct under Section 13(1) (d) of the Prevention of Corruption Act and therefore, no offence under Section 13(2) has been made out. 5. The learned counsel for the petitioner has pointed out that the petitioner has taken charge as Village Officer of Puthenvelikkara Village on 04.10.2007 only. True that there was an application for mutation on 22.10.2007 with regard to an extent of 88 acres and 66.80 cents of land. Annexure IX is order dated 18.01.2008 issued by the Deputy Collector (RR) for and on behalf of the District Collector, Ernakulam. Annexure IX shows that the subject in Annexure IX is `Mutation - Application submitted by Sri.Jayasankar, MD, for and on behalf of Adarsh Prime Project Ltd. - Order for mutation - Regarding.' This is a true translation of the subject noted in Malayalam in Annexure IX. The reference is letter No.H4-7900/07 dated 20/11/2007 of the Thahasildar, Paravur. Therefore, Annexure IX does not show that the letter of recommendation was issued by the petitioner, whereas, it clearly shows that the said recommendation shown in the reference is the one through the letter of Thahsildar, Paravur. 6. The contents of Annexure IX assumes importance. A true translation of the contents of Annexure IX is as follows: "Steps for mutation should be taken in respect of 88 acres and 66.80 cents of land in the Puthenvelikkara Village acquired for Adarsh Prime Project Ltd., without changing the tenure of the land." Therefore, it is evident that there was an order from the District Collector for the mutation of the said land having an extent of 88 Aacres and 66.80 cents of land acquired for Adarsh Prime Project Ltd. Annexure IX shows the subject as the letter from Sri.Jayasankar, MD, for Adarsh Prime Project Ltd. The said order was passed by referring the recommendation letter of the Thahasildar, Paravur. 7. There is no meaning in alleging that the petitioner had recommended for the mutation of 88 acres and 66.80 cents of land by disregarding the ceiling limit of 15 Acres. 7. There is no meaning in alleging that the petitioner had recommended for the mutation of 88 acres and 66.80 cents of land by disregarding the ceiling limit of 15 Acres. It is only common knowledge that the Thahsildar, who gets the recommendation from the District Collector, who had issued Annexure IX order through the Deputy Collector, very well know that the ceiling limit is 15 Acres. There is no allegation that the petitioner has suppressed the extent of the property to be mutated. When registered documents, especially sale deeds are presented, it is a routine course to recommend for the mutation of the property covered by those sale deeds. Even where such a recommendation was issued, it was not incumbent on the Thahsildar to accept the said recommendation. 8. Over and above it, it was not incumbent on the District Collector also to accept the recommendation made by the Thahsildar for mutation. Annexure IX clearly reveals the extent of the property to be mutated as 88 Acres and 66.80 Cents. In such case, there is no meaning in contending that the said recommendation was given without revealing the fact that it had exceeded 15 Acres ceiling limit. The Law is known to all. The District Collector, the Deputy Collector or the Thahsildar cannot be heard to say that they were not aware of the provisions relating to ceiling limit in Section 82 of the Kerala Land Reforms Act. It has to be presumed that they were aware of the legal provision that the ceiling limit was 15 acres. Therefore, there is no meaning in alleging that the petitioner has committed something wrong by recommending for the mutation of 88 acres and 66.80 cents of land without revealing that it exceeded 15 acres. When the actual extent of property is shown, anybody, who has common sense, has to understand that it exceeds 15 acres of ceiling limit. In such cases such higher officers ought to have exercised their powers to grant exemption in case A3 was entitled to such exemptions. 9. Regarding the allegation of conspiracy, the learned counsel for the petitioner has pointed out that any details of such conspiracy has not been shown and any details of an agreement to commit a crime has also not been shown. 9. Regarding the allegation of conspiracy, the learned counsel for the petitioner has pointed out that any details of such conspiracy has not been shown and any details of an agreement to commit a crime has also not been shown. It has been pointed out that during the registration of the said 23 sale deeds in respect of the total extent of property, the petitioner was not the Village Officer at Puthenvelikkara. At that time, he was working as the Village Officer at Palakkad. He took charge as the village officer, Puthenvelikkara on 04.10.2007 only; whereas, all the 18 sale deeds in respect of 88 acres and 66.80 cents of land in question were executed and registered in between 22.08.2007 and 10.09.2007, during the period in which the petitioner was not working at Puthenvelikkara village. Therefore, it cannot be said that any conspiracy was hatched among A1, A2 and A3 in respect of the registration of the document. At the most, conspiracy can be alleged only for the mutation of the property, in between the petitioner and A3. At the same time, there is no such allegation in the final report. 10. The learned counsel for the petitioner has invited the attention of this Court to the decision in Mohd. Khalid v. State of W.B. [ 2002 (7) SCC 334 ], wherein it was held:- "The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an over act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed." 11. In this context, the learned counsel for the petitioner has pointed out that the petitioner is entitled to take shelter of the general exception contained under Section 79 of the Indian Penal Code. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed." 11. In this context, the learned counsel for the petitioner has pointed out that the petitioner is entitled to take shelter of the general exception contained under Section 79 of the Indian Penal Code. As per Section 79 of the IPC:- "Nothing is an offence which is done by any person, who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it." 12. Admittedly, the District Collector is the revenue head of that particular district. Through Annexure IX order issued by the District Collector, all the authorities below him were directed to take steps for the mutation of 88 acres and 66.80 cents of property in favour of Adarsh Prime Ltd. When there is such an order passed by the revenue head, the petitioner, who was an officer coming much below the District Collector is expected to implement the said order by believing that he was justified by law. Even if it was a mistake of fact, if in good faith he believed that he was justified by law in doing it, he could take shelter under the general exception in Section 79 IPC. This is a clear instance wherein the petitioner can also take shelter under Section 79 IPC. It is in that context, the allegation of conspiracy has to be appreciated. When the petitioner was justified by law in doing such an act, it could not be said that the same was as a result of a conspiracy. 13. Apart from all the above, the details of the so- called conspiracy have not been furnished. What was the offence for which allegedly the conspiracy was hatched has also not been revealed. In order to attract Section 120B IPC, there should be a criminal conspiracy within the meaning of Section 120A IPC. Such a conspiracy can be there only when two or more persons agree to do or caused to be done an illegal act. As per Section 120A(2) IPC, an agreement to do an act which is not illegal by illegal means, can also be criminal conspiracy. Such a conspiracy can be there only when two or more persons agree to do or caused to be done an illegal act. As per Section 120A(2) IPC, an agreement to do an act which is not illegal by illegal means, can also be criminal conspiracy. Here, it cannot be said that there was any agreement between A2, the petitioner and A3 for doing an illegal act. There is no agreement for doing an act which is not illegal, by illegal means. When the petitioner is protected by Section 79 of IPC, it cannot be said that there was any criminal conspiracy between the petitioner and the 3rd accused. Whatever it is, the details of such conspiracy have not been revealed in Annexure V final report. 14. Regarding the evidence under Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988, it has to be noted that there should be specific allegations to invite such an offence. Only when specific allegations are there which contained necessary ingredients to invite such an offence, it can be said that somebody has committed such an offence. In order to bring out an offence under Section 13(1)(d) of the P.C. Act, a Public Servant shall commit criminal misconduct, 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; The penal provision for such a misconduct is the one contained under Section 13(2) of the P.C. Act. 15. Annexure V Final Report does not reveal any of the ingredients to invite an offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act in this case. It has not been alleged that the petitioner as a 'Public Servant' has obtained for himself or for any other person, any valuable thing or pecuniary benefit. There is no allegation that he has obtained any pecuniary benefit without any public interest. It has not been alleged that by corrupt or illegal means he has obtained for himself or for any other person any valuable thing or pecuniary benefit. 16. There is no allegation that he has obtained any pecuniary benefit without any public interest. It has not been alleged that by corrupt or illegal means he has obtained for himself or for any other person any valuable thing or pecuniary benefit. 16. Apart from all the above, time and again the Apex Court has repeatedly held that the allegation of demand and proof of demand is required to invite an offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act. The petitioner has invited the attention of this Court to the decision in Sukumarn N. v. State of Andhra Pradesh[2015 Crl.L.J. 4927] wherein it was held: "The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow." When those allegations are not there, there is absolutely nothing to invite an offence under Section 13(1)(d) read with Section 13(2) of the P.C.Act as against the petitioner. 17. Apart from all the above, when Annexure IX order clearly reveals that the District Collector had ordered for the mutation of the said property and the said order was issued through the Deputy Collector (RR) based on the recommendation letter of the Tahsildar, Paravur referred to in Annexure IX, it is strange to note that the VACB has not cared even to lift its little finger against any of those persons who were in the higher-ups. On the contrary, they have chosen to pin point the Village Officer who is the lowest in the cadre of officers under the Revenue Head. Whatever it is, it seems that the mischief was undone when the matter came out. It seems that the mutation has already been cancelled on 25.08.2008. Matters being so, there is absolutely nothing to pin point the petitioner alone in the matter when the mutation has been cancelled and the mischief has been undone. Whatever it is, it seems that the mischief was undone when the matter came out. It seems that the mutation has already been cancelled on 25.08.2008. Matters being so, there is absolutely nothing to pin point the petitioner alone in the matter when the mutation has been cancelled and the mischief has been undone. The State has not lost anything at all. 18. When there is no proof of demand and the ingredients of an offence under Section 13(1)(d) of Section 13(2) are not revealed, the presumption under Section 20 of the P.C. Act is not available to the prosecution. Over and above all these, there is not even an allegation that there was any demand or acceptance of any illegal gratification. Matters being so, this Crl.M.C. is only to be allowed and all further proceedings against the petitioner are only to be quashed. In the result, this CrlM.C. is allowed and all further proceedings against the petitioner in C.C.No.37/15 of the Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur, on the basis of Annexure V final report, which has arisen from Annexure I FIR in VC 9/09/EKM, are hereby quashed.