In short, as far as a final report or the charges are
concerned, Section 13(2) of the PC Act alone cannot be
said to have an independent existence without the junction
of the exact misconduct along with Section 13(2) of the PC
Act. For example, in a case wherein a misconduct as
defined in Section 13(1)(a) of the PC Act is alleged against
an accused, the penal provision should be incorporated in
the final report or charge as an offence under Section 13(2)
read with Section 13(1)(a) of the PC Act. It is trite that the
accused are entitled to know as to what should be the
offence committed by them in order to defend the charges
properly. The present instance is nothing but the denial of
the principles of natural justice. Matters being so, the final
report requires correction or clarification, as the case may
be.
6. Apart from that, this Court could notice a gross
illegality in the final report. In the final report, it has been
vaguely alleged that the public servants have favoured a
category of candidates to procure employment, through
misconduct by the public servants. In such case, the
person/persons, who procured employment through the
commission of misconduct by the public servants, are also
particeps criminis and such person also ought to have been
arraigned as accused in the case. Instead of that, the
investigating officer has chosen to cite them as charge
witnesses. This Court could have swallowed it, had they
been made approver/approvers. The investigating officer
has not made them approvers or accomplices, whereas they
have been allegedly cited as charge witnesses in the case.
The said act of the investigating officer cannot be approved.
7. It seems that the court below has merely taken
cognizance of the offences most mechanically without
application of mind. At the time of taking cognizance under
Section 190(1)(b) Cr.P.C., the court below ought to have
applied its mind in the final report. In case of shortcomings,
the court below is not powerless to order a further
investigation, if required or correction or clarification in the
final report, if required. The court below has not chosen to
act timely in the matter. The court below ought to have
returned the final report for correction or clarification or the
court below ought to have ordered further investigation in
the matter, if such an investigation was required.
8. On hearing all the parties, this Court is of the view
that a mere correction or clarification cannot improve the
present final report in any manner. According to the learned
Senior Public Prosecutor, the investigating officer has
collected material evidence against the accused. This Court
has not gone through the evidence so far collected by the
investigating officer in the matter. At the same time,
whatever be the evidence collected by the investigating
officer, the present final report cannot be improved through
a correction or clarification. The present final report is liable
to be quashed.
9. By quashing the final report, this Court is of the
view that, that should not be the end of the matter. Justice
has to be done. When the investigating officer had allegedly
collected evidence, it is for the investigating officer to see
that a prosecution should go on in the matter. Therefore,
what is now required is a further investigation in the matter,
for filing a fresh final report, without the aforesaid
shortcomings.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
1ST DAY OF SEPTEMBER 2016
Crl.MC.No. 791 of 2015
K.A.HASHIM,
V
STATE OF KERALA,
Citation:2017 CRLJ 109 Ker
Crl.M.C. No.5593/2015 has been preferred by A3
and A4, Crl.M.C. No.5660/2015 has been preferred by A5
and A6 and Crl.M.C. No.791/2015 has been preferred by A7
in CC No.26/2014 of the Court of the Enquiry Commissioner
and Special Judge (Vigilance), Thiruvananthapuram, which
has arisen from CBCID Crime No.133/CR/OCW-
I/TVM/2011. The aforesaid petitioners have come up for
getting the final report in CC No.26/2014 in the aforesaid
crime, quashed. W.P.(C) No.18488/2016 has been preferred
by the petitioner seeking a further investigation by the CBI
into the missing of OMR sheets relating to the valuation of
the answer papers involved in the aforesaid crime.
2. Heard learned Senior Counsel Sri.P.Vijaya Bhanu
for the petitioners in Crl.M.C. No.5593/2015, learned Senior
Counsel Sri.B.Raman Pillai for the petitioners in Crl.M.C.
No.5660/2015, learned counsel Sri.S.Rajeev for the
petitioner in Crl.M.C. No.791/2015, Sri.R.T.Pradeep and
Sri.Nagaraj Narayanan for the petitioners and learned
Senior Public Prosecutor Sri.P.Narayan. Heard learned
counsel Sri.B.H.Mansoor for the petitioner, learned Standing
Counsel for the CBI Sri.P.Chandrasekharan Pillai, and also
Sri.George Poonthottam in W.P.(C) No.18488/2016.
3. Learned Senior Counsel and the other learned
counsel for the petitioners have invited the attention of this
Court to the final report, which is Annexure-I in Crl.M.C.
No.5593/2015. It has been argued that the final report is
vague to the core and the same cannot be acted upon by a
court of law. Apart from that, it has been pointed out that the
offence under the Prevention of Corruption Act, 1988
allegedly committed by the accused has been shown as the
offence under Section 13(2) of the PC Act. At the same
time, it has not been pointed out in the final report as to
what is the exact nature of the misconduct allegedly
committed in the matter by the accused. Further, it has
been pointed out that apart from vaguely alleging that the
public servants had favoured some persons in procuring
employment, the identity of those persons have not been
specifically revealed in the final report.
4. On going through the final report and on hearing
all the learned counsel for the petitioners, it seems that the
aforesaid arguments forwarded by the learned counsel for
the petitioners are fully correct. The court below ought not
to have taken cognizance of the offences based on the
vague final report filed by the investigating officer in the
matter. As rightly pointed out by the learned counsel for the
petitioners, the petitioners are entitled to know as to what
exactly is the offence alleged against them. Here, the
investigating officer has chosen to file the final report
alleging the offence under Section 13(2) of the PC Act. At
the same time, when specific misconducts are defined
under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)(d) and 13
(1)(e) of the PC Act, the investigating officer ought to have
revealed in the final report as to what exactly the nature of
misconduct committed by them. Instead of that, it has been
merely alleged that they have committed the offence under
Section 13(2) of the PC Act. Section 13(2) of the PC Act is
the penal provision for the misconducts specifically
mentioned under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)
(d) and 13(1)(e) of the PC Act. Apart from that, even under
Section 13(1)(d) of the PC Act, instances of separate
misconducts are shown.
5. In short, as far as a final report or the charges are
concerned, Section 13(2) of the PC Act alone cannot be
said to have an independent existence without the junction
of the exact misconduct along with Section 13(2) of the PC
Act. For example, in a case wherein a misconduct as
defined in Section 13(1)(a) of the PC Act is alleged against
an accused, the penal provision should be incorporated in
the final report or charge as an offence under Section 13(2)
read with Section 13(1)(a) of the PC Act. It is trite that the
accused are entitled to know as to what should be the
offence committed by them in order to defend the charges
properly. The present instance is nothing but the denial of
the principles of natural justice. Matters being so, the final
report requires correction or clarification, as the case may
be.
6. Apart from that, this Court could notice a gross
illegality in the final report. In the final report, it has been
vaguely alleged that the public servants have favoured a
category of candidates to procure employment, through
misconduct by the public servants. In such case, the
person/persons, who procured employment through the
commission of misconduct by the public servants, are also
particeps criminis and such person also ought to have been
arraigned as accused in the case. Instead of that, the
investigating officer has chosen to cite them as charge
witnesses. This Court could have swallowed it, had they
been made approver/approvers. The investigating officer
has not made them approvers or accomplices, whereas they
have been allegedly cited as charge witnesses in the case.
The said act of the investigating officer cannot be approved.
7. It seems that the court below has merely taken
cognizance of the offences most mechanically without
application of mind. At the time of taking cognizance under
Section 190(1)(b) Cr.P.C., the court below ought to have
applied its mind in the final report. In case of shortcomings,
the court below is not powerless to order a further
investigation, if required or correction or clarification in the
final report, if required. The court below has not chosen to
act timely in the matter. The court below ought to have
returned the final report for correction or clarification or the
court below ought to have ordered further investigation in
the matter, if such an investigation was required.
8. On hearing all the parties, this Court is of the view
that a mere correction or clarification cannot improve the
present final report in any manner. According to the learned
Senior Public Prosecutor, the investigating officer has
collected material evidence against the accused. This Court
has not gone through the evidence so far collected by the
investigating officer in the matter. At the same time,
whatever be the evidence collected by the investigating
officer, the present final report cannot be improved through
a correction or clarification. The present final report is liable
to be quashed.
9. By quashing the final report, this Court is of the
view that, that should not be the end of the matter. Justice
has to be done. When the investigating officer had allegedly
collected evidence, it is for the investigating officer to see
that a prosecution should go on in the matter. Therefore,
what is now required is a further investigation in the matter,
for filing a fresh final report, without the aforesaid
shortcomings. The investigating officer shall make use of
the evidence already collected and shall conduct a further
investigation to correct the aforesaid anomalies pointed out
by this Court. The investigating officer shall take note of the
aforesaid observations and suggestions made by this Court
in carrying out such a further investigation for the filing of a
fresh final report in the matter.
10. Regarding the further investigation sought for by
the writ petitioner by the CBI, this Court is of the view that
when this Court has ordered a further investigation in the
matter by the investigating officer, the investigating officer
shall look into the complaints forwarded by the writ petitioner
also, regarding the missing of OMR sheets relating to the
valuation of the answer papers. The investigating officer
shall carry out an investigation into those aspects also.
11. After such further investigation in the matter,
instead of filing a supplementary final report, the
investigating officer in the present circumstances shall file a
fresh final report before the court below.
Crl.M.C. Nos.791/2015, 5593/2015 and 5660/2015 and
W.P.(C) No.18488/2016 are disposed of accordingly.
Sd/-
(B.KEMAL PASHA, JUDGE)
concerned, Section 13(2) of the PC Act alone cannot be
said to have an independent existence without the junction
of the exact misconduct along with Section 13(2) of the PC
Act. For example, in a case wherein a misconduct as
defined in Section 13(1)(a) of the PC Act is alleged against
an accused, the penal provision should be incorporated in
the final report or charge as an offence under Section 13(2)
read with Section 13(1)(a) of the PC Act. It is trite that the
accused are entitled to know as to what should be the
offence committed by them in order to defend the charges
properly. The present instance is nothing but the denial of
the principles of natural justice. Matters being so, the final
report requires correction or clarification, as the case may
be.
6. Apart from that, this Court could notice a gross
illegality in the final report. In the final report, it has been
vaguely alleged that the public servants have favoured a
category of candidates to procure employment, through
misconduct by the public servants. In such case, the
person/persons, who procured employment through the
commission of misconduct by the public servants, are also
particeps criminis and such person also ought to have been
arraigned as accused in the case. Instead of that, the
investigating officer has chosen to cite them as charge
witnesses. This Court could have swallowed it, had they
been made approver/approvers. The investigating officer
has not made them approvers or accomplices, whereas they
have been allegedly cited as charge witnesses in the case.
The said act of the investigating officer cannot be approved.
7. It seems that the court below has merely taken
cognizance of the offences most mechanically without
application of mind. At the time of taking cognizance under
Section 190(1)(b) Cr.P.C., the court below ought to have
applied its mind in the final report. In case of shortcomings,
the court below is not powerless to order a further
investigation, if required or correction or clarification in the
final report, if required. The court below has not chosen to
act timely in the matter. The court below ought to have
returned the final report for correction or clarification or the
court below ought to have ordered further investigation in
the matter, if such an investigation was required.
8. On hearing all the parties, this Court is of the view
that a mere correction or clarification cannot improve the
present final report in any manner. According to the learned
Senior Public Prosecutor, the investigating officer has
collected material evidence against the accused. This Court
has not gone through the evidence so far collected by the
investigating officer in the matter. At the same time,
whatever be the evidence collected by the investigating
officer, the present final report cannot be improved through
a correction or clarification. The present final report is liable
to be quashed.
9. By quashing the final report, this Court is of the
view that, that should not be the end of the matter. Justice
has to be done. When the investigating officer had allegedly
collected evidence, it is for the investigating officer to see
that a prosecution should go on in the matter. Therefore,
what is now required is a further investigation in the matter,
for filing a fresh final report, without the aforesaid
shortcomings.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
1ST DAY OF SEPTEMBER 2016
Crl.MC.No. 791 of 2015
K.A.HASHIM,
V
STATE OF KERALA,
Citation:2017 CRLJ 109 Ker
Crl.M.C. No.5593/2015 has been preferred by A3
and A4, Crl.M.C. No.5660/2015 has been preferred by A5
and A6 and Crl.M.C. No.791/2015 has been preferred by A7
in CC No.26/2014 of the Court of the Enquiry Commissioner
and Special Judge (Vigilance), Thiruvananthapuram, which
has arisen from CBCID Crime No.133/CR/OCW-
I/TVM/2011. The aforesaid petitioners have come up for
getting the final report in CC No.26/2014 in the aforesaid
crime, quashed. W.P.(C) No.18488/2016 has been preferred
by the petitioner seeking a further investigation by the CBI
into the missing of OMR sheets relating to the valuation of
the answer papers involved in the aforesaid crime.
2. Heard learned Senior Counsel Sri.P.Vijaya Bhanu
for the petitioners in Crl.M.C. No.5593/2015, learned Senior
Counsel Sri.B.Raman Pillai for the petitioners in Crl.M.C.
No.5660/2015, learned counsel Sri.S.Rajeev for the
petitioner in Crl.M.C. No.791/2015, Sri.R.T.Pradeep and
Sri.Nagaraj Narayanan for the petitioners and learned
Senior Public Prosecutor Sri.P.Narayan. Heard learned
counsel Sri.B.H.Mansoor for the petitioner, learned Standing
Counsel for the CBI Sri.P.Chandrasekharan Pillai, and also
Sri.George Poonthottam in W.P.(C) No.18488/2016.
3. Learned Senior Counsel and the other learned
counsel for the petitioners have invited the attention of this
Court to the final report, which is Annexure-I in Crl.M.C.
No.5593/2015. It has been argued that the final report is
vague to the core and the same cannot be acted upon by a
court of law. Apart from that, it has been pointed out that the
offence under the Prevention of Corruption Act, 1988
allegedly committed by the accused has been shown as the
offence under Section 13(2) of the PC Act. At the same
time, it has not been pointed out in the final report as to
what is the exact nature of the misconduct allegedly
committed in the matter by the accused. Further, it has
been pointed out that apart from vaguely alleging that the
public servants had favoured some persons in procuring
employment, the identity of those persons have not been
specifically revealed in the final report.
4. On going through the final report and on hearing
all the learned counsel for the petitioners, it seems that the
aforesaid arguments forwarded by the learned counsel for
the petitioners are fully correct. The court below ought not
to have taken cognizance of the offences based on the
vague final report filed by the investigating officer in the
matter. As rightly pointed out by the learned counsel for the
petitioners, the petitioners are entitled to know as to what
exactly is the offence alleged against them. Here, the
investigating officer has chosen to file the final report
alleging the offence under Section 13(2) of the PC Act. At
the same time, when specific misconducts are defined
under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)(d) and 13
(1)(e) of the PC Act, the investigating officer ought to have
revealed in the final report as to what exactly the nature of
misconduct committed by them. Instead of that, it has been
merely alleged that they have committed the offence under
Section 13(2) of the PC Act. Section 13(2) of the PC Act is
the penal provision for the misconducts specifically
mentioned under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)
(d) and 13(1)(e) of the PC Act. Apart from that, even under
Section 13(1)(d) of the PC Act, instances of separate
misconducts are shown.
5. In short, as far as a final report or the charges are
concerned, Section 13(2) of the PC Act alone cannot be
said to have an independent existence without the junction
of the exact misconduct along with Section 13(2) of the PC
Act. For example, in a case wherein a misconduct as
defined in Section 13(1)(a) of the PC Act is alleged against
an accused, the penal provision should be incorporated in
the final report or charge as an offence under Section 13(2)
read with Section 13(1)(a) of the PC Act. It is trite that the
accused are entitled to know as to what should be the
offence committed by them in order to defend the charges
properly. The present instance is nothing but the denial of
the principles of natural justice. Matters being so, the final
report requires correction or clarification, as the case may
be.
6. Apart from that, this Court could notice a gross
illegality in the final report. In the final report, it has been
vaguely alleged that the public servants have favoured a
category of candidates to procure employment, through
misconduct by the public servants. In such case, the
person/persons, who procured employment through the
commission of misconduct by the public servants, are also
particeps criminis and such person also ought to have been
arraigned as accused in the case. Instead of that, the
investigating officer has chosen to cite them as charge
witnesses. This Court could have swallowed it, had they
been made approver/approvers. The investigating officer
has not made them approvers or accomplices, whereas they
have been allegedly cited as charge witnesses in the case.
The said act of the investigating officer cannot be approved.
7. It seems that the court below has merely taken
cognizance of the offences most mechanically without
application of mind. At the time of taking cognizance under
Section 190(1)(b) Cr.P.C., the court below ought to have
applied its mind in the final report. In case of shortcomings,
the court below is not powerless to order a further
investigation, if required or correction or clarification in the
final report, if required. The court below has not chosen to
act timely in the matter. The court below ought to have
returned the final report for correction or clarification or the
court below ought to have ordered further investigation in
the matter, if such an investigation was required.
8. On hearing all the parties, this Court is of the view
that a mere correction or clarification cannot improve the
present final report in any manner. According to the learned
Senior Public Prosecutor, the investigating officer has
collected material evidence against the accused. This Court
has not gone through the evidence so far collected by the
investigating officer in the matter. At the same time,
whatever be the evidence collected by the investigating
officer, the present final report cannot be improved through
a correction or clarification. The present final report is liable
to be quashed.
9. By quashing the final report, this Court is of the
view that, that should not be the end of the matter. Justice
has to be done. When the investigating officer had allegedly
collected evidence, it is for the investigating officer to see
that a prosecution should go on in the matter. Therefore,
what is now required is a further investigation in the matter,
for filing a fresh final report, without the aforesaid
shortcomings. The investigating officer shall make use of
the evidence already collected and shall conduct a further
investigation to correct the aforesaid anomalies pointed out
by this Court. The investigating officer shall take note of the
aforesaid observations and suggestions made by this Court
in carrying out such a further investigation for the filing of a
fresh final report in the matter.
10. Regarding the further investigation sought for by
the writ petitioner by the CBI, this Court is of the view that
when this Court has ordered a further investigation in the
matter by the investigating officer, the investigating officer
shall look into the complaints forwarded by the writ petitioner
also, regarding the missing of OMR sheets relating to the
valuation of the answer papers. The investigating officer
shall carry out an investigation into those aspects also.
11. After such further investigation in the matter,
instead of filing a supplementary final report, the
investigating officer in the present circumstances shall file a
fresh final report before the court below.
Crl.M.C. Nos.791/2015, 5593/2015 and 5660/2015 and
W.P.(C) No.18488/2016 are disposed of accordingly.
Sd/-
(B.KEMAL PASHA, JUDGE)
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