Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 150 (KER)

Sreedevi v. State of Kerala

2018-02-15

B.SUDHEENDRA KUMAR

body2018
JUDGMENT : B.Sudheendra Kumar, J. 1. The petitioner is the first accused in Crime VC 6/14/PKD of the Vigilance and Anti-Corruption Bureau (for short 'VACB'), Palakkad registered for the offences punishable under Sections 468, 471, 201 and 120B IPC and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (for short 'the P.C. Act'). 2. Somebody cut and removed two teak trees and other trees from the purambokku land (Government land) in Sy.No.71 of Ozhalappathy village. The matter was informed to some press people on 19.5.2009 and it was reported in a daily on 20.5.2009. The newspaper reports raised allegations against the Government officials in the matter. Accordingly, the Deputy Tahsildar Shri.Shaji Babu visited the spot and conducted enquiry and site inspection on 20.5.2009. He informed the matter to the petitioner, the then Village Officer and requested her to take necessary steps in the matter. As instructed by the superior officer, the petitioner filed a written complaint against Sri.Swami Appan before the police. Accordingly, the crime was registered on 20.6.2009 by the Sub Inspector of Police, Kozhinjampara police station as crime No.193/2009 under Section 379 I.P.C. After completing the investigation, the final report was filed by the police before the jurisdictional Magistrate against Sri.Swami Appan and Salim for offences under Sections 379 and 411 read with Section 34 I.P.C. 3. Mean while, an enquiry was conducted in the matter by the Revenue Divisional Officer. The Revenue Divisional Officer after the enquiry, submitted a report before the District Collector, Palakkad alleging the involvement of the petitioner, who was the then Village Officer in the theft. On receiving the report from the Revenue Divisional Officer, the District Collector, Palakkad sent a report to the Director, Vigilance and Anti-Corruption Bureau, Thiruvananthapuram. Thereafter, the Director of VACB ordered to conduct a vigilance enquiry in the matter. Accordingly, a vigilance enquiry was conducted by the VACB, Palakkad unit. In the vigilance enquiry, it was primafacie revealed that the theft of two teak trees worth Rs.2.65 lakhs was committed by another person. Accordingly, a vigilance report was submitted to the Director of VACB. Thereafter, on the basis of the letter issued by the Director of VACB, the Government issued order to register the crime against the petitioner and three others. Accordingly, a vigilance report was submitted to the Director of VACB. Thereafter, on the basis of the letter issued by the Director of VACB, the Government issued order to register the crime against the petitioner and three others. Accordingly, Crime No.VC 6/2014/PKD of VACB, Palakkad was registered for the offences punishable under Sections 468, 471 and 201 read with Section 120B IPC and Section 13(1)(d) read with Section 13(2) of PC Act. 4. The petitioner is the first accused in the said crime. The Sub Inspector of Police, Kozhinjampara police station filed Ext.P7 report before the jurisdictional Magistrate stating that the Government ordered to conduct further investigation by the vigilance. Thereupon, Ext.P8 order was passed by the Magistrate court concerned granting formal permission to conduct further investigation under Section 173(8) Cr.P.C. After conducting the investigation pursuant to the registration of crime No.VC 6/2014/PKD of VACB, Palakkad, the Investigating Officer made a recommendation for enquiry by the Vigilance Tribunal. This aspect was informed to the Government as per Ext.P10. Thereafter, the final report was filed before the special court concerned treating the case as 'further action dropped'. Ext.P10 contains the factual report filed by the Investigating Officer. Thereafter, Ext.P11 order was issued by the Additional Chief Secretary directing the Principal Secretary, Revenue Department to take disciplinary proceedings against the petitioner and other Government officers, if any. 5. The petitioner has filed this Writ Petition seeking for quashing Exts.P6 to P11. 6. This court has appointed Adv.Si A Shaji, as Amicus Curiae to assist the court. 7. Heard the learned counsel for the petitioner, the learned Amicus Curiae and the learned Additional Director General of Prosecution. 8. The learned counsel for the petitioner has argued that the registration of the second FIR by the 6th respondent in respect of the same issue was not legal and hence, Ext.P9 FIR and further proceedings cannot be sustained. The learned counsel for the petitioner relied on the decision of the Apex Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation (2013 KHC 4275 : AIR 2013 SC 3794 : 2013 (2) KLJ 667) to buttress his argument that the second FIR is not maintainable. The learned counsel for the petitioner relied on the decision of the Apex Court in Amitbhai Anilchandra Shah v. Central Bureau of Investigation (2013 KHC 4275 : AIR 2013 SC 3794 : 2013 (2) KLJ 667) to buttress his argument that the second FIR is not maintainable. The learned counsel for the petitioner has further argued that the request for further investigation under Section 173(8) could be allowed by the court only if the investigating officer had collected new materials and since no new material was collected in this case, the further investigation ordered by the court cannot be justified. It has been further argued by the learned counsel for the petitioner that if at all the Vigilance Department wanted to have further investigation, that should have been conducted in Crime No.193/09 of Kozhinjampara police station, which is presently pending as C.C. No.1892/13 before the court of the jurisdictional Magistrate. The learned counsel for the petitioner has further argued that even though the petitioner is a witness in C.C. No.1892 of 2013, she has been arraigned as the first accused in the vigilance case and in the said circumstances, the first and the second accused in C.C. No.1892 of 2013 will have to be made as witnesses against the petitioner in the enquiry before the Vigilance Tribunal, which would amount to self-incrimination and consequently, the recommendation for the enquiry by the Vigilance Tribunal cannot be sustained. The learned counsel for the petitioner has finally argued that no loss had been sustained to the Government in respect of the cutting and removing of the trees, as the stolen articles had been already recovered. 9. The learned Amicus Curiae has fully supported the above said arguments of the learned counsel for the petitioner in all respect. However, the learned Additional Director General of Prosecution has submitted that the course adopted by the Investigating Officer cannot be said to be illegal or improper warranting interference by this court. It has been further submitted by the learned Additional Director General of Prosecution that if at all there had been any illegality in the matter of investigation, that would not lead to a situation to discard the materials already collected in the course of investigation and in the said circumstances, there is no embargo in conducting enquiry by the Vigilance Tribunal on the basis of the materials collected during the course of investigation. 10. 10. Before adverting to the arguments advanced at the Bar, it is necessary to go through the facts of the case a little more detail. It is borne out from the report submitted by the Investigating Officer that the incident in this case was brought to the notice of the Government and public through some media. In the media report, allegations were raised against the Revenue officials in connection with the incident in this case. The Tahsildar concerned made the site inspection and found that two teak trees were cut and removed from the Government property. Therefore, he directed the petitioner, who was the then Village officer, to report the matter to the police station concerned. Accordingly, the petitioner reported the matter to the police and thereafter, crime No.193/2009 of Kozhinjampara police station was registered for the offence punishable under Sections 379. After completing the investigation, the final report was filed before the court in the said case. While so, the Revenue Divisional Officer conducted an enquiry into the matter and it was suspected that the petitioner and some other Revenue officials were also involved in the issue. Therefore, he filed a report to the District Collector, who in turn submitted another report to the Director, VACB. Accordingly, the Vigilance enquiry was ordered. It was revealed in the vigilance enquiry that the petitioner also was involved in the commission of the offence along with the other persons. In the said circumstances, on the basis of the letter of the Director of VACB, the Government ordered VACB, Palakkad to register the crime. A report was submitted in this regard by the S.I. of Police, before the jurisdictional Magistrate. 11. Crime No.193/2009 of Kozhinjampara police station was registered under Section 379 IPC. After conducting the investigation, the final report was filed against Swami Appan and Salim for the offences punishable under Sections 379 and 411 read with Section 34 IPC. However, in the vigilance enquiry, it was revealed that there was fabrication of documents also. The involvement of the petitioner was also revealed in the preliminary enquiry. Therefore, Crime No.VC 6/14/PKD VACB was registered under Sections 468, 471, 201 and 120 B IPC and Section 13(1)(d) read with Section 13(2) of PC Act against the petitioner and three other persons, who are Swami Ayyappan, Prabhakaran and Chelladurai. 12. The involvement of the petitioner was also revealed in the preliminary enquiry. Therefore, Crime No.VC 6/14/PKD VACB was registered under Sections 468, 471, 201 and 120 B IPC and Section 13(1)(d) read with Section 13(2) of PC Act against the petitioner and three other persons, who are Swami Ayyappan, Prabhakaran and Chelladurai. 12. The Apex Court in Amitbhai Anilchandra (supra) held that a second FIR in respect of an offence committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution of India. A three Judge Bench of the Apex Court in Upkar Singh v. Ved Prakash and others ( AIR 2004 SC 4320 ) held that the second FIR is permissible even in cases where a prior FIR is already registered. Thus, it is clear that there is no absolute bar in registering a second FIR based on the same incident if the allegations are different. In the present case, the first FIR, namely, the FIR in Crime No.193/09 of Kozhinjampara police station was registered for the offence under Section 379 IPC against Swami Appan alone. The final report in the said crime was filed for the offences punishable under Sections 379 and 411 read with Section 34 IPC against Swami Appan and Salim. However, the second FIR, namely, the FIR in Crime No.VC 6/14/PKD of VACB, Palakkad, was registered under Sections 468, 471 and 201 read with Section 120B IPC and Section 13(1)(d) read with Section 13(2) IPC against the petitioner, Swami Appan, Prabhakaran and Chelladurai. The petitioner, Prabhakaran and Chelladurai were not the accused in Crime No.193 of 2009 of Kozhinjampara Police station. It is seen that the first FIR was registered only against one person on the basis of one set of allegations. However, the second FIR was registered against four persons on a different set of allegations. There were allegations with regard to the fabrication of documents and also of criminal misconduct by the public servant in the second FIR. The said allegations are entirely different from the allegations in the first FIR. On the facts of this case, I am of the view that there was no illegality in registering the second FIR in this case. Therefore, the argument advanced by the learned counsel for the petitioner in this regard cannot be accepted. 13. The said allegations are entirely different from the allegations in the first FIR. On the facts of this case, I am of the view that there was no illegality in registering the second FIR in this case. Therefore, the argument advanced by the learned counsel for the petitioner in this regard cannot be accepted. 13. The investigation in VC 6/14/PKD of VACB, Palakkad culminated in the filing of the final report dropping further action. The said final report was filed before the Special Court concerned on 29.12.2016 stating that the materials collected were not sufficient to have a successful prosecution against the petitioner. Thus, it appears that since the investigating officer was of the view that sufficient materials could not be collected during the course of investigation to have a successful prosecution, the investigating officer recommended for an enquiry by Vigilance Tribunal. Even if it is assumed that the second FIR was illegal, even then the materials collected by the Investigating Officer during the course of the investigation cannot be discarded in view of the decision of the three Judge Bench of the Hon'ble Apex Court in Bhanuprasad Hariprasad Dave and another v. State of Gujarat ( AIR 1968 SC 1323 ). In Bhanuprasad (supra), the Apex Court held that the statements recorded in the course of investigation, though the investigation was not illegal, are still statements recorded by a police officer in the course of investigation under chapter XIV of the Code of Criminal Procedure and consequently, they would fall within the scope of Sections 161 an 162 of the Code. Therefore, if at all there was any illegality in registering the second FIR, the materials collected during the course of investigation cannot be rejected stating that the second FIR was not legal. In view of the above reasons, the argument of the learned counsel for the petitioner in this regard, cannot be accepted. 14. Even though the learned counsel for the petitioner has argued that no loss was sustained to the Government as the trees cut and removed could be recovered, the report of the Investigating Officer would show that the trees could not be recovered and hence, the Government sustained a loss to the tune of Rs.2,65,000/-. Therefore, the argument advanced by the learned counsel for the petitioner in this regard lacks merits. 15. Therefore, the argument advanced by the learned counsel for the petitioner in this regard lacks merits. 15. The learned counsel for the petitioner has submitted that the making of accused Nos.1 and 2 in C.C. No.1892 of 2013 as the witnesses against the petitioner in the enquiry by the Vigilance Tribunal would tantamount to self incrimination. Article 20(3) of the Constitution of India provides that no person accused of any offence shall be compelled to be a witness against him. Before the Vigilance Tribunal, the petitioner is not an accused. That apart, there is no testimonial compulsion in this case. It is not discernible as to how there is self incrimination, if at all the accused persons in the other case become witnesses against the petitioner in the enquiry by the Vigilance Tribunal. Therefore, by no stretch of imagination, it can be said that the provisions of Article 20(3) of the Constitution of India will be attracted if at all the accused persons in the other case come as witnesses against the petitioner in the enquiry before the Vigilance Tribunal. In the said circumstances, the argument in this regard cannot be accepted. 16. In this case, there was no further investigation eventhough there was investigation on the basis of the second FIR. Therefore, the argument of the learned counsel for the petitioner with regard to the further investigation cannot be sustained. In this case, after getting new materials in the preliminary enquiry by the VACB, Palakkad, the Vigilance crime was registered on a different set of allegations. Thereafter, the investigation was conducted. It is true that the learned Magistrate, as per Ext.P8 granted formal permission to conduct further investigation on the basis of Ext.P7. In fact, the court was not requested as per Ext.P7 for granting formal permission for further investigation. In view of the above reasons, the argument touching the further investigation advanced by the learned counsel for the petitioner lacks merits. No other argument has been advanced before me in support of this Writ Petition. Having gone through the relevant inputs, I find no reason to quash Exts.P6 to P11, as sought for by the petitioner. In the result, this Writ Petition stands dismissed. I make it clear that I have not made any observation with regard to the merits of the case.