High court single bench judgment soman case - wpc no 21529 of 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA1934 WP(C).No. 21529 of 2012 (M)PETITIONER: V.S.ACHUTHANANDAN, S/O.SANKARAN, AGED 88 YEARS, CANTONMENT HOUSE, PALAYAM, THIRUVANANTHAPURAM- 695 001. BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE, ADVS. SRI.T.B.HOOD, SRI.MANU .V, SMT.M.ISHA.RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. THE DIRECTOR, VIGILANCE AND ANTl CORRUPTION BUREAU, THIRUVANANTHAPURAM- 695 033. 3. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTl CORRUPTION BUREAU, KASARAGOD UNIT- 617 123. R1 TO R3 BY DIRECTOR GENERAL OF PROSECUTION SRI. T. ASAF ALI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON . 22-11-2012, THE COURT ON 06/12/2012 DELIVERED THE FOLLOWING:
"C.R." S.S.SATHEESACHANDRAN, J. W.P.(C).N0.21529 OF 2012 (M) Dated this the 6th day of December, 2012 JUDGMENT Petitioner, a former Chief Minister of the State, is presently theleader of Opposition in the Kerala Legislative Assembly. He has filedthe above writ petition to quash Ext.Pl FIR registered by the DeputySuperintendent of Police, Vigilance and Anti Corruption Bureau,Kasaragod, wherein he is proceeded as the 1st accused with someothers, for offences punishable under Section 13(l)(d) and 13(2) ofthe Prevention of Corruption Act, 1988, for short, the Act andSections 12OB, 201 and 420 of the Indian Penal Code, for short, theIPC’. 2. In ordering assignment of a piece of land in KasaragodDistrict in favour of 5th accused, a relative of the petitioner, and alsofurther steps taken for relaxing the bar of alienability over suchland, petitioner, then, Chief Minister, abused his official positionand he had entered into a conspiracy with 5th accused, and someother public servants, including the Revenue Minister of his cabinet,to favour 5th accused violating the rules, and, later, after suchassignment, in relaxing the conditions imposed for transfer of
assigned land, to enable 5th accused to reap unlawful benefits, isthe case imputed. 3. A new Government assuming power after the GeneralElections in May, 2011, cancelling the assignment order of land infavour of 5th accused and also the Council decision relaxing the. barof alienation of the land assigned to him, ordered a vigilanceenquiry. Ext.Pl FIR would show that the Government Order,namely, G.O(MS) No.208/2011/Rev. dated 07.06.2011, was toconduct a vigilance enquiry into the illegal means adopted byrevenue officials in the assignment of Government land inKasaragod District to Sri.T.K.Soman, an ex-service man, who is the5th accused, in violation of the Kerala Land Assignment Rules, 1964,and also the Council decision enabling the said Soman to alienatethe assigned land in contravention of Assignment Rules then inforce, for his pecuniary benefits. Vigilance enquiry was conductedby the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kasaragod Unit. On the basis of preliminaryenquiry and materials gathered thereof, Ext.Pl FIR was registeredagainst eight accused persons with the petitioner, former ChiefMinister, named as the 1st accused, for offences punishable underSection 13(1 )(d) and 13(2) of the Act and Sections 120B, 201 and420 of the IPC.
4. The gist of the accusation imputed, formed on the basis ofpreliminary enquiry, revealed by Ext.Pl FIR is thus: Petitioner, while he was the Chief Minister, exerting hisinfluence over revenue officials got an extent of 2.33 acres of land inR.S.No.111/2 and 111/5 of Maire Village in Kasaragod Districtassigned in favour of his relative (A5), who was not eligible forassignment of Government land. Order of assignment of land infavour of 5th accused was made with the active involvement of twoDistrict Collectors of Kasaragod (A6 and A7), both of them colludingwith the petitioner (Chief Minister), and under his direction, and,thereby, 5th accused, who was ineligible for the land, obtainedundue pecuniary..gain by illegal means. Principal Secretary of theChief Minister (A4), and Personal Assistant of petitioner (A8)*on theinstructions and directions given by the petitioner instigated theLand Revenue Commissioner and Additional Chief Secretary(Revenue) (A3) to issue favourable orders to exempt 5th accusedfrom alienating his land against the condition stipulated in theKerala Land Assignment Rules, and on the basis of instructionsfrom A4, the Land Revenue Commissioner and Additional ChiefSecretary (Revenue) (A3) gave a false report to Government to grantexemption lifting the period of alienation. Since the officials in theRevenue department were not amenable for granting sanction forexemption in the period fixed for alienation of land assigned,petitioner in collusion with the then Revenue Minister (A2) got anagenda note prepared without the assistance of Revenue
department, and making use of the unauthorised agenda note, inthe Council meeting took a decision to waive the condition fixing theperiod of alienation under the Rules in respect of the land assignedto 5th accused. That decision was taken as an out of agenda item.Knowing that the decision to grant exemption by the Council ofMinisters was likely to-be objected by the Law and FinanceDepartments, before issuing the said G.O., petitioner, ChiefMinister, in collusion wit^the Revenue Minister (A2) issued specificorders for issue of Government Order to bypass the examination ofthe legality and propriety of the Council decision by theaforementioned departments in the Government. Later, whenallegations over the assignment of land to 5th accused and alsogranting exemption from the period of bar of limitation werediscussed in public, the Revenue Minister (A2), to escape from theclutches of law caused disappearance of evidence over his priorinvolvement and conspiracy giving direction to issue theGovernment Order only after examination of the legality of theCouncil decision by the departments concerned. The accusedpersons acted in collusion to extend wrongful gain to 5th accused,who was ineligible to get assignment of Government land, andcorresponding wrongful loss to the Government, and, thereby, all ofthem have committed the offences under the Act and IPC specifiedin Ext.Pl FIR, is the prosecution case.
5. Petitioner seeks quashing of Ext.Pl FIR and further *proceedings thereof contending there was nothing illegal orimproper in the assignment of the land to 5th accused nor in any actover the passing of cabinet decision taken to grant relaxation in theperiod fixed over the alienability of the land. After a new-Government assumed office, previous cabinet decision taken by theformer Government was cancelled and a vigilance enquiry wasordered. That was done only to tarnish his image before the publicand to wreak vengeance against him since he has beenspearheading relentlessly some corruption cases involving twomajor stakeholders in the new Government. He continued theprosecution of such corruption cases, one of which led to convictionand incarceration of the offender thereof, a former Minister, and thepresent Government which has only a wafer-thin majority hastherefore dug out some issues to malign him, and the case wasframed on false allegations after conducting a frivolous vigilanceenquiry, according to the petitioner. He has co-operated with theinvestigation and faced interrogation by the investigating officer.Realising that the enquiry conducted by the present investigatingofficer is totally false, he has filed Ext.P6 representation that theinvestigation should be conducted in a fair, impartial andtransparent manner by a superior police officer not below the rankof the Director General of Police or Additional Director General ofPolice. In the writ petition, petitioner seeks quashing of Ext.Pl FIR
and further proceedings thereto. He also seeks, in the alternative,issue of a writ of mandamus or any other writ, order or direction, tocommand the 2nd respondent, Director of Vigilance, to consider hisExt.P6 representation and pass orders thereof after hearing him. 6. A statement has been filed on behalf of the respondents bythe Director General of Prosecution, for short, the DGP.Challenging the maintainability of the petition, it is contended thatExLPl FIR is not liable to be quashed as there is clinching evidenceagainst the petitioner and other accused, both oral anddocumentary, to sustain the imputations over the offences allegedagainst them. The Government have ordered a detailed vigilanceenquiry into the corrupt illegal acts done by petitioner in collusionwith some revenue officials and others, while he was in power, forassigning an extent of 2.33 acres of Government land in KasaragodDistrict to 5th accused. That accused, an ex-service man, is thegrandson of petitioners maternal grandmothers sister. On vigilanceenquiry conducted and also on the basis of evidence collected,Ext.Pl FIR was registered as the enquiry has disclosed seriouscriminal misconduct, conspiracy, fraud and foul play committed bypetitioner and others resulting in substantial loss to theGovernment, and undue pecuniary gain to 5th accused. While theinvestigation continued, two among the accused including 5thaccused challenged the criminal proceedings approaching thisCourt for quashing Ext.Pl FIR. Such challenges were turned down.
Those accused have preferred appeals with Special Leave Petitionsbefore the Apex Court, in which, Ext.Rl(a) order was passed not totake coercive steps against them in the matter. There were severalstages in the commission of the offences, which commenced in 1976when the 5th accused moved an application for getting assignmentof Government land measuring 3 acres in Kasaragod Taluk. Aconditional sanctioning registry of assignment of 3 acres of land wasgranted in favour of 5th accused vide Ext.Rl(b) order. An assignee inwhose favour such order is made can claim right over that land onlyon payment of the land value, tree value and also tax within thetime fixed. He did not pay such value and tax. So much so, therewas no legal, actual or absolute assignment of the land in favour of5th accused. A suit involving such land questioning the order ofassignment was filed by three persons, in which, State and also 5thaccused were defendants. Ext.Rl(c) is copy of that plaint. Since thesuit was bad for want of notice under Section 80 of the Code of CivilProcedure, the plaint was returned. Fifth accused did not pay theland value of the land and, later, that land was assigned in favour ofother eligible families. Long thereafter, that is, 27 years after theabove suit, at a time when petitioner continued as Chief Minister,5th accused moved an application before the District Collector forassignment of land. He approached the petitioner and then movedthe application before the District Collector. That is evident fromExt.Rl(g) application submitted by him before the District Collector,wherein he made reference to the conversation which the Collector
had with the Chief Minister over assignment of land in his favour.Application was given to the Collector addressing in his name. Inview of the conspiracy hatched by the petitioner with high levelofficials, the District Collector (6th accused) showing unholy haste,violating all statutory mandates and overlooking the file notes ofofficials raising objections on various counts that alternate landasked for is not assignable, income potentiality of the 5th accuseddisentitled him to get such assignment etc., assigned 2.33 acres ofland in favour of 5th accused and his wife. Ext.Rl(q) is copy of thatorder. On payment of land value assessed, patta of the land wasissued, that is, Ext.Rl(r). In the statement various circumstancesinvolved over the assignment, and also law, why 5th accused wasineligible to get assignment of land and that the land assigned couldnot be treated as an alternate land towards the land assigned in hisfavour earlier in 1977 are pointed out. Assignment of 2.33 acres ofland made on his subsequent application as an alternate land wason account of conspiracy hatched by 5th accused with petitioner,and other public servants. The aforesaid public servants haveabused their official position to provide wrongful pecuniary gain to5th accused, and, thus, corresponding..loss to the Government, isthe further imputation. Adverting to various illegalities alleged tohave been committed over the assignment of land in favour of 5thaccused and also his ineligibility to get such assignment, it isstated, the first stage of the offences was completed with theassignment of 2.33 acres of land in favour of 5th accused and his
wife. Second stage of the offences, as per the statement proceededwith the 5th accused moving an application before the DistrictCollector to exempt him from the bar of alienating the assignedland. Alienation of assigned land is prohibited for a period of 25years under the Kerala Land Assignment Rules. Fifth accusedapproached the petitioner with a representation addressed to theMinister of Revenue seeking exemption from the bar of alienationover the assigned land. Collecting that representation, petitionersummoned the Land Revenue Commissioner, 3rd accused, andwanted him to consider the request of 5th accused. TheCommissioner expressing his helplessness, petitioner insisted forexamining the case stating that the request would be sent to him.Application presented by 5 th accused was then forwarded to theLand Revenue Commissioner by the Principal Secretary of the ChiefMinister with an endorsement directing him to examine the matterurgently and take necessary action without delay. Objections wereraised by the revenue officials at different levels in the note fileswhy relaxation over the bar of, alienation requested for cannot beallowed. Suppressing the note files and objections raised by theofficers of Revenue the matter was brought to the Cabinet meetingas an out of agenda and it was approved illegally. Cabinetproceedings for granting exemption to 5th accused from the bar ofalienation of assigned land were made violating the Rules coveredby the Rules of Business of the Government of Kerala. Over theCouncil decision taken petitioner directly issued a Government
Order in favour of 5th accused. Petitioner in doing so has abused hisofficial position to favour 5th accused and, therefore, he is liable tobe proceeded with for the offences imputed. Advertence is also madeto Orders passed by this court in the applications moved by twoother accused declining their request for quashing the FIR.Observations of this court in such Order that at this stage it is notproper to interfere with the investigation of the crime is pressedupon in the statement to resist the challenge raised by thepetitioner, another accused in the crime. 7. Learned senior counsel Sri.K.Gopalakrishna Kurupappearing for petitioner referring to the allegations imputed,contended that the implication of petitioner as 1st accused in thecrime splitting up the episode over the assignment of land in favourof 5th accused into two stages is totally bereft of any merit or value.Ext.Pl FIR is absurd and inherently improbable and there is noground whatsoever to impute any corruption or commission of anyother penal offences against the petitioner, a former Chief Ministerof the State, in respect of the assignment of land in favour of 5thaccused and, later, over the request made by the assignee to seeklifting of the bar of alienability over the assigned land, is thesubmission of the counsel. Assignment of land in favour of 5thaccused has been made in accordance with the Rules on therecommendation of the Land Assignment Committee, and so far asthe first stage of the crime nothing is there other than a referencemade in the application of 5th accused of a conversation of the
petitioner with the then District Collector (A6). Even if that isaccepted as true, it will not constitute any offence, leave alone anyoffence of corruption against the petitioner, is the submission of thesenior counsel.So far as the assignment of land made in favour of 5th accused, andin case there was corruption thereto, that alone, in the given facts ofthe case, could be treated as an offence committed, there isabsolutely no material to connect the petitioner with such offence,submits the counsel. So far as the second stage i.e., request madeby 5th accused for lifting the period of bar of alienability over theassigned land and steps taken thereto culminating in a cabinetdecision, it is submitted that decision has not matured into aGovernment Order and not implemented, and, further, suchdecision was revoked by the new Government, even cancelling theassignment of land made earlier in favour of 5th accused. So, thesecond stage of the crime alleged at best constitutes an attempt tocommit an offence, but not an offence as imputed in Ext.Pl FIR. Sofar as the imputations made against the petitioner, former ChiefMinister, with reference to one or other circumstance surroundingthe steps taken over the request made by 5th accused in taking acabinet decision for lifting the bar of alienability over the assignedland, learned senior counsel contended that the allegations theretoare invented to tarnish the image of the petitioner and damnify hisreputation before the general public. Allegations raised against thepetitioner to implicate him as the 1st accused in the crime with
respect to the cabinet decision taken, which has not matured into aGovernment Order, imputing some circumstances how the requestof 5th accused was proceeded with, are incapable of even showingprima facie dishonest intention of the petitioner, which is a must toproceed against him for the offence under the Prevention ofCorruption Act, leave apart the other penal offences, is thesubmission of the senior counsel. Political animosity and more so,for the reason that the petitioner has been fighting againstcorruption, particularly, the misdeeds of some persons who are nowat the helm of affairs of the Government, is the real reason inregistering Ext.Pl FIR implicating petitioner as the 1st accused andimputing corruption against him, is the submission of the seniorcounsel urging for quashing that FIR and farther proceedingsthereof as an abuse of the process of court. 8. Resisting the challenges against Ext.Pl FIR and adverting tovarious circumstances surrounding the assignment of land infavour of 5th accused, a relative of the petitioner, Sri.Asaf Ali,learned DGP contended that there was direct involvement ofpetitioner in the assignment of land to 5 th accused and his wife,both of whom were ineligible to get assignment of Government land.Later in passing the cabinet decision, after unsuccessfully exertingpressure on the revenue officials to violate the statutory rules to liftthe bar of alienability over the assigned land, petitioner played thepivotal role and that clearly demonstrate that he has abused his
official position as a public servant to extend wrongful gain to 5thaccused - his relative - and corresponding loss to the Government.Ext.PI FIR is not assailable on any ground whatsoever, and adetailed probe of the case is called for. Statements recorded fromthe 3rd accused, Land Revenue Commissioner before the magistrate,and also file noting made at different stages by senior officersobjecting to the lifting of bar over the alienability of the land areadverted to contending that the petitioner abused his officialposition to favour the 5th accused to lift the bar of alienability overthe land assigned to him. It is a clear case of nepotism andcorruption, which demand a full-fledged investigation. Bankingupon the observations made in Ext.Rl, orders passed by this courtturning down the applications moved by two among the accused forquashing Ext.Pl FIR against them, that it is not proper for thiscourt to interfere with the investigation at this stage learned DGPurged that in the case of the petitioner as well his request forquashing the FIR has to be turned down. The investigation iscomplete, and the final report is ready for being presented beforethe court is the further submission made to contend that at thisstage challenge canvassed against Ext.Pl FIR by the petitioner is notto be entertained as it is open for him to canvass whateverchallenges available before the court once the report is filed andfurther steps are taken thereof. The writ petition, in the aforesaidcircumstances, is liable to be dismissed, is the submission of thelearned DGP.
9. After both sides were heard and writ petition taken up for,orders, a petition supported by an affidavit of investigating officerwas filed by DGP, seeking consideration of the maintainability of thewrit petition as a preliminary objection and passing of ordersthereof. A memo was also filed to state that the investigation of thecrime has been completed and the investigating agency is in theprocess of filing final report under Section 173(2) of the Codeagainst five accused persons including the petitioner as one amongthem. Request was also made by the DGP for making furthersubmissions in the matter, more particularly on the question ofmaintainability filing a memo. 10. The case was thereupon posted for being spoken to, andboth sides were again heard. Challenge over the maintainability ofthe writ petition was canvassed on the premise that against Ext.Rlorder passed by this court dismissing the applications of twoaccused in Ext.PI FIR appeals preferred by them with special leavepetition are pending before the Supreme Court, and as such, thepresent writ petition of the petitioner, another accused, cannot beentertained. Inviolable fundamental rights guaranteed and availableto petitioner, insulated under the Constitution, to challenge Ext.PlFIR, if he has justifiable grounds to do SO/ and that not beingwhittled down or dependent upon the turning down of challengecanvassed by any other accused, or continuation of proceedings
before the Apex Court by them, pointed out, with the empowermentof this. court under the Constitution to examine such challenge solong as there is no interdiction from the Apex Court from doing so,challenge canvassed over the maintainability, which was not urgedpreviously, was not pursued by the DGP. 11. After the case was again taken up for disposal, later, amemo was filed seeking permission to produce the case diary for myperusal. Taking note of that memo also, with reference to the issuesprojected for consideration in the writ petition, I have formed theopinion that perusal of the case diary is not only not to be called for,but has to be avoided in examining the challenge over Ext.Pl FIR. 12. Learned senior counsel for the petitioner and also theDGP have relied on a good number of judicial pronouncementstouching upon the exercise of extraordinary jurisdiction conferredon this court under the Constitution in examining challenge raisedfor quashing of an FIR in criminal proceedings, and under whatcircumstance the FIR could be quashed. No doubt, as a matter ofcourse, none can seek quashing of an FIR, and any challengethereto can be entertained and allowed only in exceptional caseswhere justifiable grounds are shown that continuation of theproceedings on such FIR is an abuse of process of the court ornecessary to meet the ends of justice.
13. The Apex Court in State of Haryana and others v. Ch.Bhajan Lai and others (AIR 1992 SC 604) after taking intoconsideration the relevant provisions of the Code of CriminalProcedure, for short, the Code, and also principles of lawenunciated in a series of judicial pronouncements rendered by thatcourt over the exercise of the extraordinary power under Article 226or the inherent powers under Section 482 of the Code gave someguidelines under what circumstances such power could beexercised either to prevent abuse of process of the Court orotherwise to secure the ends of justice in the quashing of FIR orcomplaint. Cautioning that such guidelines are not exhaustive andapplicable to all situations and it is not. possible to lay down anyprecise, clearly defined and sufficiently channelised inflexibleguidelines, some situations, as hereunder, have been enumerated,when exercise of such power could be made: "l. 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 F.I.R. 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 F.I.R. 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. 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." The Apex Court in the aforesaid decision has also struck anote of caution that the power of quashing a criminal proceedingshould be exercised sparingly and with circumspection and that tooin the rarest of rare cases. An enquiry over the reliability orgenuineness or otherwise of the allegations made in the FIR orcomplaint should not be resorted to is also pointed out making itemphatically clear that the extraordinary or inherent powers do notconfer an arbitrary jurisdiction on the court to act according to itswhim and caprice.
14. Where a criminal proceeding is sought to be quashed atthe initial stages, the essential question to be looked into is whetherthe uncontroverted allegations made prima facie establish an offence.If there is any special features present in a particular case, that alsohave to be looked into by the court to consider whether it isexpedient and in the, interests of justice to permit prosecution tocontinue. Such special features can definitely be taken into accountby the court if present in a particular case to examine whether theprosecution has been launched with any oblique purpose. In casethe court forms an opinion on the features presented in the casethat the chances of conviction are bleak and no useful purpose islikely to be achieved by allowing the criminal prosecution tocontinue, it may quash the proceedings at a preliminary stage. 15. What is the gravamen or foundation of the case proceededagainst the petitioner, 1st accused in the FIR, necessarily has to beexamined when a challenge is raised that the registration of thecrime is an abuse of process of court and it is liable to be quashedin exercise of the extraordinary power of the court. Going throughExt.Pl FIR and also the statement filed on behalf of the respondentsby the DGP, the case set forth to launch criminal proceedingsagainst the petitioner has two different stages, the first onecommencing from an application moved by 5th accused, stated to bea relative of petitioner, for assignment of Government land, as an
ex-service man, in 1976. Orders were then passed for assignmentof three acres of land to 5th accused, but there was a suitchallenging that assignment. That suit was found not maintainablefor want of notice under Section 80 of the Code and the plaintthereof was returned. Though some arguments were projectedbefore me that there was no assignment of land in favour of 5thaccused but only an order of registry of assignment, those aspectshave little significance in considering the challenge against thecriminal proceedings under Ext. PI FIR against the petitioner.Prosecution has no case that the petitioner had any role at thatpoint of time in getting assignment of land by 5th accused. Whateverbe the illegalities connected with such assignment, even assumingthat 5th accused was culpable for such illegalities in getting ordersof assignment of land, or such assignment was made in violation ofany Assignment Rules, that cannot in any way be pointed out toraise any imputation against petitioner, who, concededly, had norole in the assignment of land ordered in favour of 5th accused in1977. Whatever be the case projected in the statement filed beforethis Court to impeach the assignment of land in 1977 in favour of5th accused, Ext.Pl FIR does not make out any such case other thana casual reference that verification of the assignment file in 1976showed that the genuineness of the claim of the assignee wassuspicious. In the suit referred to above, wherein a challenge wasmade against the assignment made in favour of 5th accused, theGovernment have filed Ext.P3 written statement. Resisting the
challenge against the assignment, in Ext.P3 written statement, itwas contended that the assignment has become final and theassignee has been put in possession of the land. Whatever that be,and also whatever be the imputations against 5th accused regardinghis ineligibility to claim government land on assignment, and actsillegally done by him to get such assignment in 1976 in violation ofthe Rules, none of his acts even if he is shown culpable for anyoffence, can be canvassed to rope in petitioner as a co-accused withhim alleging that both are related. Petitioner is a public figure andany aspersion over his character should be decided with referenceto his acts or omissions and, not on the contumacious conduct ofany other person even if such person happens to be his relative.Fifth accused had done some illegal acts with reference toassignment of land in his favour in 1976 and he was ineligible to getsuch land, even if that be so, cannot in the least be canvassed toconnect petitioner for the offences imputed under Ext.Pl FIR. 16. Where none of the acts of 5th accused in relation toassignment of land in his favour in 1977 can be the basis for anyaccusation against the petitioner, with respect to the second part ofthe first stage of the offence, if we go by the statement filed beforethis court on behalf of the respondents and also Ext.Pl FIR,imputations against the petitioner to connect him with 5th accusedis founded on the request made by that accused for an alternate sitebefore the District Collector. In his application to District Collector,
5th accused has referred to a conversation which 1st accused, whothen was the Chief Minister, had with the Collector over his requestfor an alternate site in lieu of the land assigned in his favour in1977. At this juncture, it has to be pointed out so far as the firststage of the crime commencing from assignment of land in 1977 to5th accused till the passing of orders assigning an alternate site tohim, one and only material to connect petitioner proceeded as 1staccused in the FIR is the above statement made in the applicationof 5th accused to the District Collector. Copy of the application filedby 5th accused to the District Collector has been produced asExt.Rl(g) with the statement filed on behalf of the respondents. Hisapplication with some accompaniments addressing the DistrictCollector "Respected Sir" begins thus: "With reference to the conversation between you and the Chief Minister of Kerala regarding assignment land in respect of T.KSoman."Then reference is made to number of documents produced. Theaforesaid statement made by 5th accused, that alone, is the basis,and in fact the foundation, to impute that petitioner has abused hisposition as Chief Minister for securing an alternate site to 5thaccused, which is alleged to have been done overlooking andviolating Assignment Rules and also the ineligibility of 5th accused toget such land. It is also to be pointed out so far as the first stage ofthe crime alone, comprising two parts, the prosecution has a casethat the offences imputed are completed.
It is conceded in the second stage of the crime, that is, relating tosteps taken for waiving the bar of alienability over the assignedland, the offences have not been completed and there is onlyattempt to commit them. I have already pointed out so far as thefirst part of first stage of crime no offence nor even any allegationcould be pointed out or raised against the petitioner. So much so,the significant question is even assuming that certain irregularitiesor illegalities and culpable criminal acts have been done by revenueofficials including the District Collector (A6) in providing alternatesite to 5th accused, solely on the basis of the aforesaid statement inthe application of 5th accused, that alone, referring to a conversationbetween the petitioner, then Chief Minister and the DistrictCollector, can the petitioner be imputed of having committed anycriminal offence, leave alone, any commission of corruption -abusing his position as a public servant. Whether it be the ChiefMinister or Minister of State, they can function only through theadministrative machinery, and in the course of discharge of theirfunctions, they are bound to give one or other instruction or order,to the officials in the State under their control. If at all anyinstruction or order given by the Chief Minister or Minister to anofficial cannot be implemented for one or other reason, but, it hasbeen given effect to overlooking the irregularity or illegality thereof,for that reason alone, without anything more to connect the ChiefMinister or Minister, as the case may be, can he be prosecuted.Statement made by the applicant in Ext.Rl(g), if it is taken as
sufficient to prosecute a Chief Minister, then, no Chief Minister candischarge his functions. He will be made answerable for culpableacts done by other persons though he has no role whatsoever in thecommission of such acts. But for the conversation which the ChiefMinister is alleged to have had with the District Collector referred toin Ext.Rl(g), alternate site in lieu of the land initially assigned in1977 would not have been made to 5th accused and variousillegalities connected thereto would not have been perpetrated byrevenue officials including the District Collector, was the tenor ofthe argument canvassed by the DGP before me to impress uponthat the petitioner, then Chief Minister was culpable with the otheraccused in the commission of the offences relating to the grant ofalternate site to 5th accused. Such hypothesis and inferences drawnare quite out of place and none can for a moment ignore thatpetitioner was then the Chief Minister of the State. If a ChiefMinister could be roped in on a statement made by an applicant inhis application referring to his conversation with a Governmentofficial then who else holding responsible position in theGovernment could be protected of or insulated from being calledupon to face vexatious prosecution in cases where illegalities havebeen perpetrated by the acts of one or other officials in theproceedings, in which, some reference as indicated is made. That istoo dangerous, and no functionary can then discharge fearlessly hisduties and responsibilities as he could be hauled up to faceprosecution on a mere statement of his name being referred to in
one or other application put by a third party, which later ensued incommission of illegal act liable to be proceeded with. The gamut ofallegations raised over the first stage of the crime referring to theillegalities and irregularities connected with the issue of alternatesite to 5th accused cannot be pinpointed against the petitioner, thenChief Minister of the State, banking upon the statement referred toabove in the application of the 5th accused to the District Collector,the 6th accused. Looking into Ext.Rl(g) also, it is noticed theapplication given by 5th accused is dated 09.03.2007 and theDistrict Collector made an endorsement to the Deputy Collector(R.R) "Please pay personal attention" on 12.03.2007. The DeputyCollector as per his endorsement forwarded copy to the Tahasildaron 27.03.2007 for urgent report. The despatch seal would show thatit was sent from the Collectorate on 30.03.2007. The aforesaidendorsements seen on the application also indicate whatever be thealleged conversation which the Chief Minister had with the DistrictCollector referred to in the application, the application moved atsnails pace. I have just pointed out the above circumstance only toshow that no significance whatsoever could be attached to thestatement made by 5th accused in Ext.Rl(g) to connect thepetitioner, then Chief Minister with whatever illegalities that arealleged to have been perpetrated in relation to the alternate sitegranted in favour of 5th accused. If any such illegalities has beenperpetrated by revenue officials and 5th accused, no doubt, they willbe liable to be proceeded against for the offences committed thereof,
but to proceed against petitioner solely on the basis of the aforesaidstatement in Ext.Rl(g) is obnoxious and has to be deprecated. 17. In the second stage of crime, concededly, there was onlyattempt to commit the offences. Case of the prosecution is based onvarious steps taken on the request made by 5th accused for liftingthe bar of alienation over the assigned land. When he moved suchan application, addressed to the Revenue Minister, the PrincipalSecretary to Chief Minister, 4th accused, issued instructions to theCommissioner of Land Revenue, 3rd accused, to examine the matterurgently and take necessary action without delay and that petitionwith enclosures was forwarded to him. Though the officers of LandRevenue put up notes in the file objecting to the waiver sought for,Commissioner of Land Revenue (A3) issued specific instructions tosend a report conforming with the instructions given by 4th accused,Principal Secretary to Chief Minister, and later he also sent a reportstriking of the objectionable notes made by his subordinates tomake out a case that the Government could pass orders for waivingthe bar over alienation as a special case. When such report wasforwarded to the Principal Secretary to the Chief Minister (A4), shegave an instruction that the Chief Minister desired to meet theCommissioner of Land Revenue. Without amendment of theAssignment Rules, no such waiver can be made, was the standconsistently taken by the revenue officials. Overlooking thatobjection request for relaxation of the period of alienation over the
assigned land by 5th accused was placed as an out of agenda item inthe Cabinet meeting and it was approved by the Council ofMinisters. Based on the Council decision, petitioner issued ordersfor relaxation of the period of alienation in favour of 5th accused, hisbrother, is the case alleged that he has abused his official positionas Chief Minister to favour 5th accused. The Minister of Revenue, thePrincipal Secretary to Chief Minister, the Land RevenueCommissioner, and Personal Assistant of petitioner all of them wereparties to the aforesaid illegal acts done to favour 5th accused, is theimputation to contend that attempts were made by them along withpetitioner to commit the offences under the Act. Since the newGovernment soon after assuming office cancelled the decision of theCouncil of Ministers and no notification was issued by theGovernment to waive the bar of alienation over assigned land andeven the assignment of alternate site in favour of the 5th accusedwas also cancelled, and the Council decision not having been giveneffect to, offences as such have not been committed but onlyattempt thereto made, punishable under Section 15 of the Act withsubstantive offence of that Act under Section 13(1) (d) of that Act, isthe case now canvassed to proceed against the petitioner. Ext.PlFIR, it is to be stated, is founded on the basis that the offences havebeen committed by the accused, and not a case of only an attemptmade by them to commit the offences. In the statement filed onbehalf of the respondents, detailed reference to the file noting madeby various officials of the Land Revenue Department objecting to the
waiver in lifting the bar of alienation, requested for by 5th accused,and how the matter was placed as an out of agenda item in themeeting of the Council of Ministers are narrated. At the time ofargument, learned DGP has also adverted to the statement given bythe Commissioner (Land Revenue), 3rd accused, before themagistrate over his meeting with the Chief Minister on hissummoning to his official residence by the Principal Secretary to theChief Minister. Petitioner (Chief Minister) requested him to examinethe matter and see whether anything could be done over the requestmade for relaxation in the bar of alienation fixed under theAssignment Rules, was his statement. Statement purported to havebeen recorded from the Principal Secretary (Revenue), in which, shestated of her summoning by the Minister of Revenue, the 2ndaccused, and the request made by him stating that the ChiefMinister is interested in the matter of relaxing the bar of alienationrequested by 5th accused, has also been banked upon to contendthat petitioner has shown undue favoritism and nepotism in placingthe request of 5th accused for relaxation in the bar of alienation asan out of agenda item in the cabinet meeting and taking a Councildecision allowing such request. 18. On the allegations raised over the attempts made bypetitioner in committing of an offence under the Act, to prosecutehim thereof, first of all the offence has to be noted. The offence
imputed under Ext.Pl FIR falls under Section 13(1) (d) punishableunder 13(2) of the Act. Section 13(l)(d) of the Act reads thus: 13. Criminal misconduct by a public servant- (i) A public servant is said to commit the offence of criminal misconduct, - (a) .............................................................. (b) ............................................... (c) .............................................. (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 any 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) .........................The aforesaid offence, if committed, is punishable under Section13(2) of the Act with imprisonment for a term which shall not beless than one year but which may extend to seven years and shallalso be liable to fine. If there is only an attempt to commit theoffence under clause (c) or (d) of sub section (1) of Section 13 of theAct, punishment is covered by Section 15 of the Act, which providesimprisonment for a term which may extend to three years and withfine. Whether the offence has been*committed or an attempt to
commit such offence alone is made, in both cases, the essentialingredient to show corruption by a public servant abusing hisposition as such has to be founded on his dishonoured intention incommitting the culpable act or attempt to do such act. Specialfeatures presented in the case disclosed by the facts cannot at all beoverlooked in examining whether petitioner, who then was the ChiefMinister, had committed any act with dishonoured intention toprosecute him by registering a crime under Ext.Pl FIR. First, it hasto be noted that the material allegation is that he has favoured hisbrother (A5) who was ineligible to get Government land. Ext.Pl FIR,which is based on a preliminary enquiry concludes that A5 is thebrother of Al, the former Chief Minister, as disclosed from a reportof Tahsildar of Ambalapuzha. In the statement filed before thiscourt relationship of A5 with petitioner is described stating that heis the grandson of petitioners maternal grandmothers sister. Maybe, in the maternal line, petitioner has a relationship with A5: But ifwe go by the term relative under the Law Lexicon and Rules ofSuccession, the allegation that A5 is a brother of petitioner (Al) andhow the entire case of corruption based on the relationship with A5is sought to be projected is too farfetched. In examining thechallenges against Ext.Pl FIR, the aforesaid aspect may not bedecisive, but, however when a former Chief Minister is sought to beprosecuted alleging that he had abused his official position to favouranother imputing such person as his brother, when the relationshipbetween the two, which comes under the cognate line of a great
predecessor cannot be brushed aside as innocuous. Nothing moreneed be stated about the relationship of brethren between petitionerand A5 other than stating that it is one of distant kindred. 19. Attempt to commit the offence of corruption imputedagainst the petitioner with the acts purported to have been done byhim for lifting the bar of alienability over the assigned land of 5thaccused, abusing his position as the Chief Minister, a publicservant, has now to be looked into. Whether he did any act thereofwith dishonest intention to extend any benefit to 5th accusedillegally and flouting the law, and, that calls for a look into thebackdrop of the whole case. Whatever be the illegalities imputedover the assignment of land to 5th accused in 1977 on a claim raisedby him as an ex-service man, the fact remains that assignment of 3acres of land was made in his favour and that was recognised by theGovernment even when a challenge was raised thereto in a suit filedby third parties. Whatever be the reason for his not getting exclusivetitle and possession over such assigned land, on the request madeby him at a later stage in 2007 seeking an alternate site in respectof the land assigned earlier he was given assignment of 2.33 acresof land in 2010. I have already pointed out that the imputations andallegations made to connect the petitioner with respect to theassignment of such land as an alternate site even assuming thatsuch assignment was illegal, solely based on a statement in theapplication of 5th accused to the District Collector, has no merit,
and so far as the first stage of the episode relating to assignmentand the offences imputed thereof petitioner never could be imputedof abusing his official position or committing any act of corruption.Fifth accused, after getting assignment of an alternate site,approached the petitioner and then he gave some instructions tothe officials, is the case. Even if that be so, does it postulate any actof corruption - abusing his position as a public servant - ChiefMinister of the State. Subsequent assignment of land in favour of5th accused if it was in recognition of the previous assignment madeto him, then, the request made by him for lifting the period ofalienability over the land, at least, according to him, must bereckoned with the previous order of assignment. In such a case if hehad made a request and any instruction was given by the petitionerto consider such request to the officials, it can never be stated thatsuch instructions were given by petitioner, then Chief Minister, witha dishonest intention to assist 5th accused abusing his position as apublic servant. In fact, after looking into the provisions covered bythe Land Assignment Act and Rules thereof, I find, the wholeexercise of conducting a vigilance enquiry with respect to the actsdone by the petitioner in relation to lifting of the bar of alienabilityover the land assigned in favour of 5th accused is totallymisconceived. Nobody has got a case that 2.33 acres of land allottedto 5th accused in 2010 which, according to him, was an alternatesite for the previous assigned land was under his occupation orunder the occupation of any other person. He has been issued a
patta of the land is also not disputed. The acts done by the accused,public servants, in lifting the bar of alienability over the assignedland is imputed as a violation of Rule 8(1)(a) of the Kerala LandAssignment Rules, 1964, as amended under SRO.No.59/2009.Relevant provision under sub rule (1) of Rule 8 of the LandAssignment Rules on the bar of alienability over assigned land isthus: 8. Conditions of assignment on registry: - [(i) Lands, granted on registry shall be heritable [but not alienable for a period of twenty-five years from the date of registry]:] (rest not required)Fifth accused claimed for an alternate site on the basis of previousassignment of land in his favour in 1977 and he was granted landassigned on registry in 2010, recognising that claim cannot be lostsight of in noting the request made by him and also instructions, ifany, given by petitioner for its consideration, to the officials, forexamining whether he had any dishonest intention in doing so.Much has been stated on the file noting put by the officials of theRevenue department and also placing of the item as an out ofagenda in the Council meeting and the decision taken thereof forlifting the bar of alienability over the land assigned to 5th accused.Empowerment of the Government to dispense with any provisioncovered by the Rules in the assignment of the land cannot bedoubted for a moment. The revenue officials have made some
objections in lifting of bar of alienability over the assigned land andthat was overlooked by the Council of Ministers is of little meritwhen the objections of the revenue officials could not be consideredas binding on the Council of Ministers. Viewed in that perspective,and more so, in the backdrop that 5th accused was assigned a landin 1977, and later, on his request for alternate site in lieu of theprevious land assigned, an alternate site was given, and on hisrequest, some instructions were given by the petitioner ChiefMinister, even if that be so, to the revenue officials, to consider thelifting of bar of alienability over his assigned land and also taking adecision to do so in the Council meeting, by no stretch ofimagination, could be considered as acts done with dishonestintention amounting to corrupt acts abusing his position as publicservant. 20. To make a person criminally accountable, it must be provedthat the act imputed against him, which is forbidden by law, hasbeen caused not only by his conduct and that the conduct wasaccompanied by a legally blameworthy attitude of mind. Where apublic servant is proceeded for having abused his position andmisconducted himself either for his own gain or for some otherperson the two components of the offence, a physical element and amental element, usually called actus reus and mens rea respectivelymust be shown to exist. In the present case none of the acts
imputed against the petitioner in relation to the steps whichpreceded the Council decision, and later, with respect to therelaxation over the alienability of the land assigned to 5th accused,which, even according to the prosecuting agency, amounted only anattempt to commit the offence imputed, would indicate that theyhave been done with a dishonest intention or guilty mind. In thebackdrop that a land was assigned in favour of 5th accused in 1977,upholding his claim as an ex-service man and later an alternate sitein lieu was given to him on his request, when he had approachedthe petitioner (Chief Minister) in relaxing the bar of alienability ofsuch land, instructions, if any, given by petitioner, presumablytaking a view, that the land assigned to him was an alternate sitefor a previous land much earlier, it is too hazardous to hold thatsuch instructions were given with any dishonest intention to favour5th accused, that too, abusing his official position as a publicservant - Chief Minister. 21. The allegations set out to proceed against thepetitioner as if he had committed the offence of corruption andthus liable to be prosecuted for doing so, on the facts andcircumstances presented are so preposterous and unworthy ofany merit. Chances are so bleak in his prosecution for suchoffences ending in his conviction. When that be so, continuationof the criminal proceedings against him on the crime registered
under Ext.Pl FIR cannot be permitted to, and it calls fortermination to advance the ends of justice. 22. Some of the features presented in the case are toodisturbing and in fact give enough room to generate suspicionthat the machinery of vigilance is misused and abused to silencea political opponent framing a case against him on false andfrivolous allegations unworthy of any merit. I have already pointedout with respect to the commission of alleged acts imputingcorruption by the petitioner that the edifice of the case against himis built upon a statement, that alone, in the application of the 5thaccused to the District Collector that the petitioner had aconversation with the District Collector over the assignment of analternate site to that accused. A Chief Minister approached with agrievance by any of his subjects, whether he be his relative orotherwise, if he puts in a word to a Government official to look intothe matter, or even assuming the worst instructed that it has to beattended favourably, that by itself does not indicate that he had aguilty mind for perpetrating a corrupt act and thus liable to beprosecuted for the offence thereof. If that is the prosecution caseover the commission of the offence of corruption by petitioner,which is devoid of any merit, what is imputed as the next stage ofoffence over the attempts made by the petitioner to commit corruptacts with respect to orders passed for relaxing the period ofalienability over the assigned land giving instructions to the Land
Revenue Commissioner and later taking the Council decision, evenif they are assumed to be true, they do not at all indicate that hehad done any act thereof with a dishonest intention to favour 5thaccused. I have already pointed out that the relationship imputedof, between petitioner and 5th accused as brothers is silly. No doubt,that was so put forth to cement the foundation for the allegedcriminal acts of petitioner as favours done to 5th accused, actsconstituting nepotism, abusing his position as a public servant.Strangely where the FIR has been registered after a preliminaryenquiry, the police officer, who conducted such enquiry refers onlyto a report of the Tahsildar to impute in the FIR that 5th accused isthe brother of petitioner. Statement of the respondents filed by theDGP the relationship of 5th accused with petitioner is shown asgrandson of petitioners, maternal grandmothers sister. To a ChiefMinister of the State, all his subjects, at least below his age, can beconsidered and treated as his brothers and sisters. If that be so, 5thaccused can be a brother of the petitioner, but otherwise he is aperson with whom he is having a too remote and distantrelationship. Foundation of the case against the petitioner imputingthat he has done illegal acts of favoritism to his brother 5th accused,to project imputations of corruption against the petitioner, is tooshaky and not worthy enough even to be taken note of as anincriminating circumstance.
23. How the investigation after registering of Ext.Pl FIRproceeded, which I would not have referred to but for the reasonthat some of the materials collected thereof had been pressed intoservice to resist the challenges in the writ petition, lend enoughsupport to the case advanced by the petitioner that the crime hasbeen registered against him with oblique motives. Investigatingofficer, it seems, either does not know the rudimentary principles ofcriminal investigation or has scant respect to the fundamentalprinciples to be adhered to in conducting investigation of a crime,that too, for grave offences under the Act. Petitioner, a former ChiefMinister of the State is being proceeded alleging abuse of theposition held by him in committing acts of corruption. Anyinvestigation in a crime registered thereof should be shown to befair, just and reasonable. One among the accused (A3) LandRevenue Commissioner had been produced before the magistrateand his statement was got recorded. Learned DGP has submittedbefore me that it was not recording of a confession of an accusedbut only statement as a witness under Section 164 of the Code. Anaccused person has an inviolable right that he should not becompelled to be a witness against himself as guaranteed andinsulated under Article 20 (3) of the Constitution of India.Prosecution has no case that A3 has confessed of the criminal actsimputed against him and other co-accused and he has beenaccepted as an approver in the case. If at all his statement is to betreated as a confession, which, it is seen, has been so treated by the
magistrate, who recorded his statement as reflected by theendorsement made by him in Ext.Rl(v), then such confession couldbe made use of against a co-accused only if the accused who hadconfessed the guilt is jointly tried with the other accused. Afterrecording such statement from A3 through magistrate, during thecourse of investigation, it is seen that accused (A3) and two otheraccused, all of them senior Government officials, who are imputedto have conspired with the petitioner in doing the illegal actsalleged, have been omitted from the array of the accused. If anysenior Government official committed any criminal misconduct,whether it be on the instructions given by the Chief Minister or anyMinister, normally, he cannot be relieved but is liable to beprosecuted. What is more strange is after setting forth a case thatsome senior Government officials named in Ext.Pl FIR conspiredwith petitioner and another Minister, and also aided and assistedthem in doing of illegal acts of corruption imputed, at the finalstage, after investigation, they have been left out from the array ofthe accused. Statement recorded from one of them with respect tothe acts alleged to have been done by him, which would show thatthe spine of such officer is more flexible and elastic than of rubber,and that too totally inadmissible and unacceptable in evidence, hasbeen pressed into to inculpate the petitioner, a former ChiefMinister of the State, to sustain the imputations made against himof having committed acts of corruption.
24. Petitioner has sought for an alternate relief over the non-consideration of Ext.P6 representation sent by him to the 2ndrespondent Director of Vigilance and Anti Corruption Bureaucomplaining that investigation done by the present investigatingofficer, 3rd respondent, is unfair. No doubt, the accused has no rightto canvass who should conduct investigation in the crime proceededagainst him. However, where he has got a grievance that theinvestigation is conducted in a most unfair manner, his right toapproach a superior police officer to look into that matter moving arepresentation cannot be considered as something which he couldnot canvass of or seek redressal. Ext.Rl(z)(6) is the reply given bythe Director of Vigilance to negative his representation. That replydated 3.10.2012 is long after filing of this writ petition. Petitionerhas not pointed out any specific instance of animosity or illwillagainst the present investigating officer in continuing with theinvestigation of the case and the report received from theSuperintendent of Police, VACB, Northern Range, Kozhikoderevealed that the present investigating officer is conducting theinvestigation in a fair and reasonable manner without fear orfavour, are the reasons stated for rejecting Ext.P6 representation.Director of Vigilance is not an ornamental or glorified post foraccomodating a senior police officer of the State. Where a formerChief Minister of the State, who continues as the Leader ofOpposition, when he is being proceeded with as an accused in acase involving corruption, presents a petition before a higher police
official, pointing out several circumstances, as seen from Ext.P6,why the investigation is not proceeding on correct lines asmandated by law, if that is dealt with in the manner indicated asunder Ext.R(z)(6), then it only shows a sad state of affairs how theVigilance wing in the State is functioning. Fairness in investigationnot only to the complainant but to the accused who is proceededagainst is the mandate of law. The investigating officer, 3rdrespondent, is empowered to conduct an investigation of a crimewhere the petitioner, former Chief Minister is shown as an accused,is a different matter. Where his investigation is impeached pointingout material circumstances why it is unfair it should have receivedmore attention. True, in the reply, the 2nd respondent has statedthat the investigation is nearing completion and if furtherinvestigation is required, action will be taken at the appropriatetime after scrutiny of records, but that reply, as indicated, was givenafter filing of the writ petition. 25. Going by the allegations raised in Ext.Pl FIR and thetotality of the circumstances presented in the case to impute acts ofcorruption against petitioner, former Chief Minister, with allsobriety and equanimity, it has to be stated that the case canvassedby the petitioner that the registration of the crime is intended totarnish his image before the public imputing corruption againsthim, that alone, cannot be brushed aside. Allegations of corruptionimputed against him are so preposterous and unworthy of any
merit, and the later developments after registration of the crime inleaving out the higher Government officials, proceeded as co-accused in the crime, and who are imputed of having shamelesslyconspired with petitioner and another Minister to do the criminalacts of corruption, would also lend some credence to the casecanvassed by the petitioner since he had been fighting corruptionrelentlessly through out his political career inviting the wrath ofsuch persons proceeded against, he is also sought to be projected ascorrupt by registering the crime. Fixing him as the main accusedwith baseless and ..unfounded allegations and included with somepublic servants as having conspired and assisted him in doingcorrupt acts, the case proceeded, but, later, after investigation, theGovernment officials, who primarily could be imputed as culpablefor having done the criminal acts obeying the instructions of ChiefMinister or Minister showing their spineless character, have beenleft out in the case. Fixing the man and getting the cross ready forcrucifixion, was it a case in search of nails. If that be so, howsoeversharp and pointed the nails are, where the cross is made ofsoftwood each attempt to nail the person would shatter that woodinto pieces. Imputations levelled in Ext.Pl FIR to proceed against thepetitioner, a former Chief Minister of the State, in the facts andcircumstances presented in the case, not only do not make out anyoffence to proceed against him but give enough room to sustain the
case canvassed by him that he has been proceeded against tomalign him before the public. 26. Appeals preferred with special leave petitions by twoamong the accused in the crime against the dismissal of theirpetitions challenging Ext.Pl FIR are pending before the Apex Court.That being so, challenge against Ext.Pl FIR and proceedings thereofonly against the petitioner is accepted to pass orders thereof. 27. Ext.Pl FIR registered against the petitioner, proceeded asthe 1st accused in the crime, in respect of him alone, and all furthercriminal proceedings against him on the basis of such FIR, arequashed exercising the extraordinary powers of this court. Writ petition is allowed. S. S. SATHEESACHANDRAN JUDGEprp APPENDIXPETITIONERS EXHIBITS:EXHIBIT P1: TRUE COPY OF THE F I R NO. 1/2012 REGISTERED BY THE DEPUTY SUPERINTENDENT POLICE, VIGILANCE AND ANTl CORRUPTION BUREAU, KASARAGOD UNIT.
EXHIBIT P2: TRUE COPY OF THE PLAINT IN O.S NO.108/1977 ON THE FILES OF THE MUNSIFF COURT, KASARAGOD.EXHIBIT P3: TRUE COPY OF THE JOINT WRITTEN STATEMENT FILED BY THE 1ST AND THE 2ND DEFENDANTS IN OS NO.108/1977 ON THE FILES OF THE MUNSIFF COURT, KASARAGOD.EXHIBIT P4: TRUE COPY OF THE ORDER DATED 12.3.1979 IN OS NO.108/1977 ON THE FILES OF THE MUNSIFF COURT, KASARAGOD RETURNING PLAINT.EXHIBIT P5: TRUE COPY OF G.O (MS) NO.208/2011/REV. DATED 7.6.2011.EXHIBIT P6: TRUE COPY OF THE REPRESENTATION DATED 9.7.2012 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DIRECTOR.EXBIBIT P7: TRUE COPY OF THE COMMUNICATION DTD. 03/10/2012 SENT BY THE R.2. TO THE PETITIONER.RESPONDENTS EXHIBITS & ANNEXURES:EXT.R1: TRUE COPY OF THE COMMON ORDER DTD. 12/04/2012 IN CRL.M.C. NO.668/12.EXT.R1.(A): TRUE COPY OF THE ORER DTD. 25/05/2012 OF THE HONBLE SUPREME COURT IN SLP TO APPEAL (CRL.) 3769/12 AND 4362/2012.EXT.R1.(B): TRUE COPY OF THE CONDITIONAL SANCTIONING REGISTRY OF ASSIGNMENT ISSUED UNDER RULE 9 (1) OF KLA RULES VIDE NO.LA 15/76/ENMAKAJE DT. 16/04/1977.EXT.R1.(B)(1): LEGIBLE COPY OF EXT.R1.(B).EXT.R1.(C): TRUE COPY OF THE PLAINT IN O.S. NO. 108/1977 IN THE COURT OF MUNSIFF, KASARAGOD.EXT.R1.(D): TRUE COPY OF THE ORDER OF THE JUDGMENT IN O.S. NO. 108/77 DT. 12/03/1979.EXT.R1.(E) TRUE COPY OF THE LETTER NO. L3/8258/11 DT. 30/12/2011 OF: TAHSILDAR, KASARAGOD.EXT.R1.(F): TRUE COPY OF THE APPLICATION DT. 14/01/2006 OF SRI. T.K. SOMAN ADDRESSED TO SRI. B. NARAYANA, HQ TAHSILDAR, KASARAGOD.EXT.R1 .(G): TRUE COPY OF THE LETTER DTD. 09/03/2007 OF T.K. SOMAN ADDRESSED TO SRI. KRISHNANKUTTY, DISTRICT COLLECTOR, KASARAGOD.EXT.R1 .(H): TRUE COPY OF THE NOTE FILE NO.L2-1900/06 OF TAHSILDAR, KASARAGOD.EXT.R1.(I): TRUE COPY OF THE APPLICATION FOR ASSIGNMENT OF LAND ON REGISTRY FILED BY T.K. SOMAN.EXT.R1.(J): TRUE COPY OF THE TRANSFER OF REGISTRY UPDATION FORM OF VILLAGE OFFICER, ARYAD SOUTH.
W.P.fCl. NO.21529/2012-M:EXT.R1.(K): TRUE COPY OF THE LETTER NO.1-32822/11 DT. 14/11/2011 OF TALUK OFFICE, AMBALAPPUZHA ADDRESSED TO DISTRICT COLLECTOR, ALAPPUZHA.EXT.R1.(L): TRUE COPY OF THE LETTER NO. S1/42780/11 DT. 19/11/11 OF DISTRICT COLLECTOR, ALAPPUZHA.EXT.R1.(M): TRUE COPY OF THE APPLICATION DTD. NIL. OF SRI. T.K. SOMAN ADDRESSED TO THE HQ, TAHSILDAR, KASARAGDO.EXT.R1.(N): TRUE COPY OF THE PROFORMA REPORT OF MAIRE VILLAGE OFFICER SUBMITTED TO TALUK OFFICE, KASARAGOD.EXT.RL(O): TRUE COPY OF THE LETTER NO. LA51/08/MAIRE DT. 22/12/2009 OF TAHSILDAR, KASARAGOD ADDRESSED TO DISTRICT COLLECTOR, KASARAGOD.EXT.R1.(P): TRUE COPY OF THE NOTE FILE N0.62510/09/14 OF COLLECTORATE, KASARAGOD.EXT.R1.(Q): TRUE COPY OF THE ORDER OF ASSIGNMENT ON REGISTRY IN LA 51/X/08/MAIRE DTD. 27/03/2010.EXT.R1.(R): TRUE COPY OF THE FORM OF PATTA IN APPENDIX NO.II ISSUED TO SRI.T.K. SOMAN AND HIS WIFE KAMALAMMA.EXT.R1.(S): TRUE COPY OF THE APPLICATION DTD. 03/07/2010 OF SRI.T.K. SOMAN ADDRESSED TO DISTRICT COLLECTOR, KASARAGOD.EXT.R1.(T): TRUE COPY OF THE LETTER NO. C6-37035/2010 DT. 13/08/2010 OF DISTRICT COLLECTOR, KASARAGOD ADDRESSED TO SRI.T.K. SOMAN.EXT.R1.(U): TRUE COPY OF THE APPLICATION DTD. 30/08/2010 OF SRI.T.K. SOMAN ADDRESSED TO THE HONBLE MINISTER FOR REVENUE THROUGH THE HONBLE CHIEF MINISTER OF KERALA.EXT.R1.(V): TRUE COPY OF THE STATEMENT OF SR1.K.R. MURALEEDHARAN RECORDED UNDER SECTION 164 CR. P.C. BY THE JUDL. MAGISTRATE OF 1ST CLASS (SPL. COURT FOR MARAD CASES), KZOHIKODE.EXT.R1.(W): TRUE COPY OF THE NOTE FILE NO. LR. J4-51653/2010 OF LAND REVENUE COMMISSIONERATE, THIRUVANANTHAPURAM.EXT.Rl(X): TRUE COPY OF THE DRAFT LETTER NO. LR.J4-51653/10 DTD. 20/01/2011 ADDRESSED TO ADDL. CHIEF SECRETARY, REVENUE DEPARTMENT.EXT.R1.(Y): TRUE COPY OF THE PRINTOUT OF LETTER NO. LRJ4-51653/10 DT. 20/01/2011 ADDRESSED TO ADDL. CHIEF SECRETARY, REVENUE (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.EXT.R1.(Z): TRUE COPY OF THE LETTER NO. LRJ4-51653/10 DT. 20/01/2011 ADDRESSED TO ADDL. CHIEF SECRETARY REVENUE (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM MARKED TO THE PRL. SECRETARY TO CHIEF MINISTER, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.EXT.R1.(Z)(1): TRUE COPY OF THE NOTE FILE NO.4387/L1/2011/RD REVENUE (L) DEPARTMENT, THIRUVANANTHAPURAM.EXT.R1.(Z)(2): TRUE COPY OF THE NOTE TO THE COUNCIL OF MINISTERS SIGNED BY SRI. K.P. RAJENDRAN.EXT.R1(Z)(3): TRUE COPY OF THE MINUTES OF THE COUNCIL OF MINISTERS HELD ON 16/02/2011.
W.P.fCl. NO.21529/2012-M:EXT.R1(Z)(4): TRUE COPY OF THE NOTES PREPARED BY SRI. K.P. RAJENDRAN, MINISTER FOR REVENUE DEPARTMENT, DT. 16/02/2011.EXT.R1(Z)(5): TRUE COPY OF THE STATEMENT OF DR. NIVEDITHA P. HARAN, IAS, FORMER ADDL. CHIEF SECRETARY, REVENUE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM RECORDED UNDER SECTION 161 CR. P.C.EXT.R1(Z) (6): TRUE COPY OF THE LETTER NO. T1(VC1/12/KSD) 2237/12 DT. 03/10/2012 OF THE DIRECTOR, VIGILANCE AND ANTl CORRUPTION BUREAU, TVM. ADDRESSED TO SRI. V.S. ACHUTHANANDAN.ANNEXURE I: TRUE COPY OF THE CRL.M.C. NO. 668/12 FILED BY SRI.T.K. SOMAN.ANNEXURE-II: TRUE COPY OF THE O.P.(CRL) NO.4903/12 FILED BY SRI.A. SURESH. //TRUE COPY// P.S. TO JUDGEPrv.