(2012) 281 KLR 429

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934

WP(C).No. 21529 of 2012 (M)

---------------------------------------

PETITIONER:

-------------------

RESPONDENTS:

------------------------

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON 06/12/2012 DELIVERED THE FOLLOWING:

APPENDIX

PETITIONER'S EXHIBITS:

RESPONDENTS' EXHIBITS & ANNEXURES:

//TRUE COPY// P.S. TO JUDGE Prv. "C.R."

S.S.SATHEESACHANDRAN, J.

-------------------------------

W.P.(C).NO.21529 OF 2012 (M)

-----------------------------------

Dated this the 6th day of December, 2012

Head Note:-

J U D G M E N T

Petitioner, a former Chief Minister of the State, is presently the leader of Opposition in the Kerala Legislative Assembly. He has filed the above writ petition to quash Ext.P1 FIR registered by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Kasaragod, wherein he is proceeded as the 1st accused with some others, for offences punishable under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, for short, the 'Act' and Sections 120B, 201 and 420 of the Indian Penal Code, for short, the 'IPC'.

2. In ordering assignment of a piece of land in Kasaragod District in favour of 5th accused, a relative of the petitioner, and also further steps taken for relaxing the bar of alienability over such land, petitioner, then, Chief Minister, abused his official position and he had entered into a conspiracy with 5th accused, and some other public servants, including the Revenue Minister of his cabinet, to favour 5th accused violating the rules, and, later, after such assignment, in relaxing the conditions imposed for transfer of assigned land, to enable 5th accused to reap unlawful benefits, is the case imputed.

3. A new Government assuming power after the General Elections in May, 2011, cancelling the assignment order of land in favour of 5th accused and also the Council decision relaxing the bar of alienation of the land assigned to him, ordered a vigilance enquiry. Ext.P1 FIR would show that the Government Order, namely, G.O(MS) No.208/2011/Rev. dated 07.06.2011, was to conduct a vigilance enquiry into the illegal means adopted by revenue officials in the assignment of Government land in Kasaragod District to Sri.T.K.Soman, an ex-service man, who is the 5th accused, in violation of the Kerala Land Assignment Rules, 1964, and also the Council decision enabling the said Soman to alienate the assigned land in contravention of Assignment Rules then in force, for his pecuniary benefits. Vigilance enquiry was conducted by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kasaragod Unit. On the basis of preliminary enquiry and materials gathered thereof, Ext.P1 FIR was registered against eight accused persons with the petitioner, former Chief Minister, named as the 1st accused, for offences punishable under Section 13(1)(d) and 13(2) of the Act and Sections 120B, 201 and 420 of the IPC.

4. The gist of the accusation imputed, formed on the basis of preliminary enquiry, revealed by Ext.P1 FIR is thus: 

Petitioner, while he was the Chief Minister, exerting his influence over revenue officials got an extent of 2.33 acres of land in R.S.No.111/2 and 111/5 of Maire Village in Kasaragod District assigned in favour of his relative (A5), who was not eligible for assignment of Government land. Order of assignment of land in favour of 5th accused was made with the active involvement of two District Collectors of Kasaragod (A6 and A7), both of them colluding with the petitioner (Chief Minister), and under his direction, and, thereby, 5th accused, who was ineligible for the land, obtained undue pecuniary gain by illegal means. Principal Secretary of the Chief Minister (A4), and Personal Assistant of petitioner (A8) on the instructions and directions given by the petitioner instigated the Land Revenue Commissioner and Additional Chief Secretary (Revenue) (A3) to issue favourable orders to exempt 5th accused from alienating his land against the condition stipulated in the Kerala Land Assignment Rules, and on the basis of instructions from A4, the Land Revenue Commissioner and Additional Chief Secretary (Revenue) (A3) gave a false report to Government to grant exemption lifting the period of alienation. Since the officials in the Revenue department were not amenable for granting sanction for exemption in the period fixed for alienation of land assigned, petitioner in collusion with the then Revenue Minister (A2) got an agenda note prepared without the assistance of Revenue department, and making use of the unauthorised agenda note, in the Council meeting took a decision to waive the condition fixing the period of alienation under the Rules in respect of the land assigned to 5th accused. That decision was taken as an out of agenda item. Knowing that the decision to grant exemption by the Council of Ministers was likely to be objected by the Law and Finance Departments, before issuing the said G.O., petitioner, Chief Minister, in collusion with the Revenue Minister (A2) issued specific orders for issue of Government Order to bypass the examination of the legality and propriety of the Council decision by the aforementioned departments in the Government. Later, when allegations over the assignment of land to 5th accused and also granting exemption from the period of bar of limitation were discussed in public, the Revenue Minister (A2), to escape from the clutches of law caused disappearance of evidence over his prior involvement and conspiracy giving direction to issue the Government Order only after examination of the legality of the Council decision by the departments concerned. The accused persons acted in collusion to extend wrongful gain to 5th accused, who was ineligible to get assignment of Government land, and corresponding wrongful loss to the Government, and, thereby, all of them have committed the offences under the Act and IPC specified in Ext.P1 FIR, is the prosecution case.

5. Petitioner seeks quashing of Ext.P1 FIR and further proceedings thereof contending there was nothing illegal or improper in the assignment of the land to 5th accused nor in any act over the passing of cabinet decision taken to grant relaxation in the period fixed over the alienability of the land. After a new Government assumed office, previous cabinet decision taken by the former Government was cancelled and a vigilance enquiry was ordered. That was done only to tarnish his image before the public and to wreak vengeance against him since he has been spearheading relentlessly some corruption cases involving two major stakeholders in the new Government. He continued the prosecution of such corruption cases, one of which led to conviction and incarceration of the offender thereof, a former Minister, and the present Government which has only a wafer-thin majority has therefore dug out some issues to malign him, and the case was framed on false allegations after conducting a frivolous vigilance enquiry, according to the petitioner. He has co-operated with the investigation and faced interrogation by the investigating officer. Realising that the enquiry conducted by the present investigating officer is totally false, he has filed Ext.P6 representation that the investigation should be conducted in a fair, impartial and transparent manner by a superior police officer not below the rank of the Director General of Police or Additional Director General of Police. In the writ petition, petitioner seeks quashing of Ext.P1 FIR and further proceedings thereto. He also seeks, in the alternative, issue of a writ of mandamus or any other writ, order or direction to command the 2nd respondent, Director of Vigilance, to consider his Ext.P6 representation and pass orders thereof after hearing him.

6. A statement has been filed on behalf of the respondents by the Director General of Prosecution, for short, the 'DGP'. Challenging the maintainability of the petition, it is contended that Ext.P1 FIR is not liable to be quashed as there is clinching evidence against the petitioner and other accused, both oral and documentary, to sustain the imputations over the offences alleged against them. The Government have ordered a detailed vigilance enquiry into the corrupt illegal acts done by petitioner in collusion with some revenue officials and others, while he was in power, for assigning an extent of 2.33 acres of Government land in Kasaragod District to 5th accused. That accused, an ex-service man, is the grandson of petitioner's maternal grandmother's sister. On vigilance enquiry conducted and also on the basis of evidence collected, Ext.P1 FIR was registered as the enquiry has disclosed serious criminal misconduct, conspiracy, fraud and foul play committed by petitioner and others resulting in substantial loss to the Government, and undue pecuniary gain to 5th accused. While the investigation continued, two among the accused including 5th accused challenged the criminal proceedings approaching this Court for quashing Ext.P1 FIR. Such challenges were turned down. Those accused have preferred appeals with Special Leave Petitions before the Apex Court, in which, Ext.R1(a) order was passed not to take coercive steps against them in the matter. There were several stages in the commission of the offences, which commenced in 1976 when the 5th accused moved an application for getting assignment of Government land measuring 3 acres in Kasaragod Taluk. A conditional sanctioning registry of assignment of 3 acres of land was granted in favour of 5th accused vide Ext.R1(b) order. An assignee in whose favour such order is made can claim right over that land only on payment of the land value, tree value and also tax within the time fixed. He did not pay such value and tax. So much so, there was no legal, actual or absolute assignment of the land in favour of 5th accused. A suit involving such land questioning the order of assignment was filed by three persons, in which, State and also 5th accused were defendants. Ext.R1(c) is copy of that plaint. Since the suit was bad for want of notice under Section 80 of the Code of Civil Procedure, the plaint was returned. Fifth accused did not pay the land value of the land and, later, that land was assigned in favour of other eligible families. Long thereafter, that is, 27 years after the above suit, at a time when petitioner continued as Chief Minister, 5th accused moved an application before the District Collector for assignment of land. He approached the petitioner and then moved the application before the District Collector. That is evident from Ext.R1(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. In view of the conspiracy hatched by the petitioner with high level officials, the District Collector (6th accused) showing unholy haste, violating all statutory mandates and overlooking the file notes of officials raising objections on various counts that alternate land asked for is not assignable, income potentiality of the 5th accused disentitled him to get such assignment etc., assigned 2.33 acres of land in favour of 5th accused and his wife. Ext.R1(q) is copy of that order. On payment of land value assessed, patta of the land was issued, that is, Ext.R1(r). In the statement various circumstances involved over the assignment, and also law, why 5th accused was ineligible to get assignment of land and that the land assigned could not be treated as an alternate land towards the land assigned in his favour earlier in 1977 are pointed out. Assignment of 2.33 acres of land made on his subsequent application as an alternate land was on account of conspiracy hatched by 5th accused with petitioner, and other public servants. The aforesaid public servants have abused their official position to provide wrongful pecuniary gain to 5th accused, and, thus, corresponding loss to the Government, is the further imputation. Adverting to various illegalities alleged to have been committed over the assignment of land in favour of 5th accused and also his ineligibility to get such assignment, it is stated, the first stage of the offences was completed with the assignment of 2.33 acres of land in favour of 5th accused and his wife. Second stage of the offences, as per the statement proceeded with the 5th accused moving an application before the District Collector to exempt him from the bar of alienating the assigned land. Alienation of assigned land is prohibited for a period of 25 years under the Kerala Land Assignment Rules. Fifth accused approached the petitioner with a representation addressed to the Minister of Revenue seeking exemption from the bar of alienation over the assigned land. Collecting that representation, petitioner summoned the Land Revenue Commissioner, 3rd accused, and wanted him to consider the request of 5th accused. The Commissioner expressing his helplessness, petitioner insisted for examining the case stating that the request would be sent to him. Application presented by 5th accused was then forwarded to the Land Revenue Commissioner by the Principal Secretary of the Chief Minister with an endorsement directing him to examine the matter urgently and take necessary action without delay. Objections were raised by the revenue officials at different levels in the note files why relaxation over the bar of alienation requested for cannot be allowed. Suppressing the note files and objections raised by the officers of Revenue the matter was brought to the Cabinet meeting as an out of agenda and it was approved illegally. Cabinet proceedings for granting exemption to 5th accused from the bar of alienation of assigned land were made violating the Rules covered by the Rules of Business of the Government of Kerala. Over the Council decision taken petitioner directly issued a Government Order in favour of 5th accused. Petitioner in doing so has abused his official position to favour 5th accused and, therefore, he is liable to be proceeded with for the offences imputed. Advertence is also made to Orders passed by this court in the applications moved by two other accused declining their request for quashing the FIR. Observations of this court in such Order that 'at this stage it is not proper to interfere with the investigation of the crime' is pressed upon in the statement to resist the challenge raised by the petitioner, another accused in the crime.

7. Learned senior counsel Sri.K.Gopalakrishna Kurup appearing for petitioner referring to the allegations imputed, contended that the implication of petitioner as 1st accused in the crime splitting up the episode over the assignment of land in favour of 5th accused into two stages is totally bereft of any merit or value. Ext.P1 FIR is absurd and inherently improbable and there is no ground whatsoever to impute any corruption or commission of any other penal offences against the petitioner, a former Chief Minister of the State, in respect of the assignment of land in favour of 5th accused and, later, over the request made by the assignee to seek lifting of the bar of alienability over the assigned land, is the submission of the counsel. Assignment of land in favour of 5th accused has been made in accordance with the Rules on the recommendation of the Land Assignment Committee, and so far as the first stage of the crime nothing is there other than a reference made in the application of 5th accused of a conversation of the petitioner with the then District Collector (A6). Even if that is accepted as true, it will not constitute any offence, leave alone any offence of corruption against the petitioner, is the submission of the senior counsel. So far as the assignment of land made in favour of 5th accused, and in case there was corruption thereto, that alone, in the given facts of the case, could be treated as an offence committed, there is absolutely no material to connect the petitioner with such offence, submits the counsel. So far as the second stage i.e., request made by 5th accused for lifting the period of bar of alienability over the assigned land and steps taken thereto culminating in a cabinet decision, it is submitted that decision has not matured into a Government Order and not implemented, and, further, such decision was revoked by the new Government, even cancelling the assignment of land made earlier in favour of 5th accused. So, the second stage of the crime alleged at best constitutes an attempt to commit an offence, but not an offence as imputed in Ext.P1 FIR. So far as the imputations made against the petitioner, former Chief Minister, with reference to one or other circumstance surrounding the steps taken over the request made by 5th accused in taking a cabinet decision for lifting the bar of alienability over the assigned land, learned senior counsel contended that the allegations thereto are invented to tarnish the image of the petitioner and damnify his reputation before the general public. Allegations raised against the petitioner to implicate him as the 1st accused in the crime with respect to the cabinet decision taken, which has not matured into a Government Order, imputing some circumstances how the request of 5th accused was proceeded with, are incapable of even showing prima facie dishonest intention of the petitioner, which is a must to proceed against him for the offence under the Prevention of Corruption Act, leave apart the other penal offences, is the submission of the senior counsel. Political animosity and more so, for the reason that the petitioner has been fighting against corruption, particularly, the misdeeds of some persons who are now at the helm of affairs of the Government, is the real reason in registering Ext.P1 FIR implicating petitioner as the 1st accused and imputing corruption against him, is the submission of the senior counsel urging for quashing that FIR and further proceedings thereof as an abuse of the process of court.

8. Resisting the challenges against Ext.P1 FIR and adverting to various circumstances surrounding the assignment of land in favour of 5th accused, a relative of the petitioner, Sri.Asaf Ali, learned DGP contended that there was direct involvement of petitioner in the assignment of land to 5th accused and his wife, both of whom were ineligible to get assignment of Government land. Later in passing the cabinet decision, after unsuccessfully exerting pressure on the revenue officials to violate the statutory rules to lift the bar of alienability over the assigned land, petitioner played the pivotal role and that clearly demonstrate that he has abused his official position as a public servant to extend wrongful gain to 5th accused - his relative - and corresponding loss to the Government. Ext.P1 FIR is not assailable on any ground whatsoever, and a detailed probe of the case is called for. Statements recorded from the 3rd accused, Land Revenue Commissioner before the magistrate, and also file noting made at different stages by senior officers objecting to the lifting of bar over the alienability of the land are adverted to contending that the petitioner abused his official position to favour the 5th accused to lift the bar of alienability over the land assigned to him. It is a clear case of nepotism and corruption which demand a full-fledged investigation. Banking upon the observations made in Ext.R1, orders passed by this court turning down the applications moved by two among the accused for quashing Ext.P1 FIR against them, that 'it is not proper for this court to interfere with the investigation at this stage' learned DGP urged that in the case of the petitioner as well his request for quashing the FIR has to be turned down. The investigation is complete, and the final report is ready for being presented before the court is the further submission made to contend that at this stage challenge canvassed against Ext.P1 FIR by the petitioner is not to be entertained as it is open for him to canvass whatever challenges available before the court once the report is filed and further steps are taken thereof. The writ petition, in the aforesaid circumstances, is liable to be dismissed, is the submission of the learned DGP.

9. After both sides were heard and writ petition taken up for orders, a petition supported by an affidavit of investigating officer was filed by DGP, seeking consideration of the maintainability of the writ petition as a preliminary objection and passing of orders thereof. A memo was also filed to state that the investigation of the crime has been completed and the investigating agency is in the process of filing final report under Section 173(2) of the Code against five accused persons including the petitioner as one among them. Request was also made by the DGP for making further submissions in the matter, more particularly on the question of maintainability filing a memo.

10. The case was thereupon posted for being spoken to, and both sides were again heard. Challenge over the maintainability of the writ petition was canvassed on the premise that against Ext.R1 order passed by this court dismissing the applications of two accused in Ext.P1 FIR appeals preferred by them with special leave petition are pending before the Supreme Court, and as such, the present writ petition of the petitioner, another accused, cannot be entertained. Inviolable fundamental rights guaranteed and available to petitioner, insulated under the Constitution, to challenge Ext.P1 FIR, if he has justifiable grounds to do so, and that not being whittled down or dependent upon the turning down of challenge canvassed by any other accused, or continuation of proceedings before the Apex Court by them, pointed out, with the empowerment of this court under the Constitution to examine such challenge so long as there is no interdiction from the Apex Court from doing so, challenge canvassed over the maintainability, which was not urged previously, was not pursued by the DGP.

11. After the case was again taken up for disposal, later, a memo was filed seeking permission to produce the case diary for my perusal. Taking note of that memo also, with reference to the issues projected for consideration in the writ petition, I have formed the opinion 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.P1 FIR.

12. Learned senior counsel for the petitioner and also the DGP have relied on a good number of judicial pronouncements touching upon the exercise of extraordinary jurisdiction conferred on this court under the Constitution in examining challenge raised for quashing of an FIR in criminal proceedings, and under what circumstance the FIR could be quashed. No doubt, as a matter of course, none can seek quashing of an FIR, and any challenge thereto can be entertained and allowed only in exceptional cases where justifiable grounds are shown that continuation of the proceedings on such FIR is an abuse of process of the court or necessary to meet the ends of justice.

13. The Apex Court in State of Haryana and others v. Ch. Bhajan Lal and others (AIR 1992 SC 604) after taking into consideration the relevant provisions of the Code of Criminal Procedure, for short, the 'Code', and also principles of law enunciated in a series of judicial pronouncements rendered by that court over the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code gave some guidelines under what circumstances such power could be exercised either to prevent abuse of process of the Court or otherwise to secure the ends of justice in the quashing of FIR or complaint. Cautioning that such guidelines are not exhaustive and applicable to all situations and it is not possible to lay down any precise, clearly defined and sufficiently channelised inflexible guidelines, some situations, as hereunder, have been enumerated, when exercise of such power could be made:

The Apex Court in the aforesaid decision has also struck a note of caution that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. An enquiry over the reliability or genuineness or otherwise of the allegations made in the FIR or complaint should not be resorted to is also pointed out making it emphatically clear that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim and caprice.

14. Where a criminal proceeding is sought to be quashed at the initial stages, the essential question to be looked into is whether the uncontroverted allegations made prima facie establish an offence. If there is any special features present in a particular case, that also have to be looked into by the court to consider whether it is expedient and in the interests of justice to permit prosecution to continue. Such special features can definitely be taken into account by the court if present in a particular case to examine whether the prosecution has been launched with any oblique purpose. In case the court forms an opinion on the features presented in the case that the chances of conviction are bleak and no useful purpose is likely to be achieved by allowing the criminal prosecution to continue, it may quash the proceedings at a preliminary stage.

15. What is the gravamen or foundation of the case proceeded against the petitioner, 1st accused in the FIR, necessarily has to be examined when a challenge is raised that the registration of the crime is an abuse of process of court and it is liable to be quashed in exercise of the extraordinary power of the court. Going through Ext.P1 FIR and also the statement filed on behalf of the respondents by the DGP, the case set forth to launch criminal proceedings against the petitioner has two different stages, the first one commencing from an application moved by 5th accused, stated to be a relative of petitioner, for assignment of Government land, as an ex-service man, in 1976. Orders were then passed for assignment of three acres of land to 5th accused, but there was a suit challenging that assignment. That suit was found not maintainable for want of notice under Section 80 of the Code and the plaint thereof was returned. Though some arguments were projected before me that there was no assignment of land in favour of 5th accused but only an order of registry of assignment, those aspects have little significance in considering the challenge against the criminal proceedings under Ext.P1 FIR against the petitioner. Prosecution has no case that the petitioner had any role at that point of time in getting assignment of land by 5th accused. Whatever be the illegalities connected with such assignment, even assuming that 5th accused was culpable for such illegalities in getting orders of assignment of land, or such assignment was made in violation of any Assignment Rules, that cannot in any way be pointed out to raise any imputation against petitioner, who, concededly, had no role in the assignment of land ordered in favour of 5th accused in 1977. Whatever be the case projected in the statement filed before this Court to impeach the assignment of land in 1977 in favour of 5th accused, Ext.P1 FIR does not make out any such case other than a casual reference that verification of the assignment file in 1976 showed that the genuineness of the claim of the assignee was 'suspicious'. In the suit referred to above, wherein a challenge was made against the assignment made in favour of 5th accused, the Government have filed Ext.P3 written statement. Resisting the challenge against the assignment, in Ext.P3 written statement, it was contended that the assignment has become final and the assignee has been put in possession of the land. Whatever that be, and also whatever be the imputations against 5th accused regarding his ineligibility to claim government land on assignment, and acts illegally done by him to get such assignment in 1976 in violation of the Rules, none of his acts even if he is shown culpable for any offence, can be canvassed to rope in petitioner as a co-accused with him alleging that both are related. Petitioner is a public figure and any aspersion over his character should be decided with reference to his acts or omissions and not on the contumacious conduct of any other person even if such person happens to be his relative. Fifth accused had done some illegal acts with reference to assignment of land in his favour in 1976 and he was ineligible to get such land, even if that be so, cannot in the least be canvassed to connect petitioner for the offences imputed under Ext.P1 FIR.

16. Where none of the acts of 5th accused in relation to assignment of land in his favour in 1977 can be the basis for any accusation against the petitioner, with respect to the second part of the first stage of the offence, if we go by the statement filed before this court on behalf of the respondents and also Ext.P1 FIR, imputations against the petitioner to connect him with 5th accused is founded on the request made by that accused for an alternate site before the District Collector. In his application to District Collector, 5th accused has referred to a conversation which 1st accused, who then was the Chief Minister, had with the Collector over his request for an alternate site in lieu of the land assigned in his favour in 1977. At this juncture, it has to be pointed out so far as the first stage of the crime commencing from assignment of land in 1977 to 5th accused till the passing of orders assigning an alternate site to him, one and only material to connect petitioner proceeded as 1st accused in the FIR is the above statement made in the application of 5th accused to the District Collector. Copy of the application filed by 5th accused to the District Collector has been produced as Ext.R1(g) with the statement filed on behalf of the respondents. His application with some accompaniments addressing the District Collector "Respected Sir" begins thus:

Then reference is made to number of documents produced. The aforesaid statement made by 5th accused, that alone, is the basis, and in fact the foundation, to impute that petitioner has abused his position as Chief Minister for securing an alternate site to 5th accused, which is alleged to have been done overlooking and violating Assignment Rules and also the ineligibility of 5th accused to get such land. It is also to be pointed out so far as the first stage of the crime alone, comprising two parts, the prosecution has a case that the offences imputed are completed. It is conceded in the second stage of the crime, that is, relating to steps taken for waiving the bar of alienability over the assigned land, the offences have not been completed and there is only attempt to commit them. I have already pointed out so far as the first part of first stage of crime no offence nor even any allegation could be pointed out or raised against the petitioner. So much so, the significant question is even assuming that certain irregularities or illegalities and culpable criminal acts have been done by revenue officials including the District Collector (A6) in providing alternate site to 5th accused, solely on the basis of the aforesaid statement in the application of 5th accused, that alone, referring to a conversation between the petitioner, then Chief Minister and the District Collector, can the petitioner be imputed of having committed any criminal offence, leave alone, any commission of corruption - abusing his position as a public servant. Whether it be the Chief Minister or Minister of State, they can function only through the administrative machinery, and in the course of discharge of their functions, they are bound to give one or other instruction or order to the officials in the State under their control. If at all any instruction or order given by the Chief Minister or Minister to an official cannot be implemented for one or other reason, but, it has been given effect to overlooking the irregularity or illegality thereof, for that reason alone, without anything more to connect the Chief Minister or Minister, as the case may be, can he be prosecuted. Statement made by the applicant in Ext.R1(g), if it is taken as sufficient to prosecute a Chief Minister, then, no Chief Minister can discharge his functions. He will be made answerable for culpable acts done by other persons though he has no role whatsoever in the commission of such acts. But for the conversation which the Chief Minister is alleged to have had with the District Collector referred to in Ext.R1(g), alternate site in lieu of the land initially assigned in 1977 would not have been made to 5th accused and various illegalities connected thereto would not have been perpetrated by revenue officials including the District Collector, was the tenor of the argument canvassed by the DGP before me to impress upon that the petitioner, then Chief Minister was culpable with the other accused in the commission of the offences relating to the grant of alternate site to 5th accused. Such hypothesis and inferences drawn are quite out of place and none can for a moment ignore that petitioner was then the Chief Minister of the State. If a Chief Minister could be roped in on a statement made by an applicant in his application referring to his conversation with a Government official, then who else holding responsible position in the Government could be protected of or insulated from being called upon to face vexatious prosecution in cases where illegalities have been perpetrated by the acts of one or other officials in the proceedings, in which, some reference as indicated is made. That is too dangerous, and no functionary can then discharge fearlessly his duties and responsibilities as he could be hauled up to face prosecution on a mere statement of his name being referred to in one or other application put by a third party, which later ensued in commission of illegal act liable to be proceeded with. The gamut of allegations raised over the first stage of the crime referring to the illegalities and irregularities connected with the issue of alternate site to 5th accused cannot be pinpointed against the petitioner, then Chief Minister of the State, banking upon the statement referred to above in the application of the 5th accused to the District Collector, the 6th accused. Looking into Ext.R1(g) also, it is noticed the application given by 5th accused is dated 09.03.2007 and the District Collector made an endorsement to the Deputy Collector (R.R) "Please pay personal attention" on 12.03.2007. The Deputy Collector as per his endorsement forwarded copy to the Tahasildar on 27.03.2007 for urgent report. The despatch seal would show that it was sent from the Collectorate on 30.03.2007. The aforesaid endorsements seen on the application also indicate whatever be the alleged conversation which the Chief Minister had with the District Collector referred to in the application, the application moved at snail's pace. I have just pointed out the above circumstance only to show that no significance whatsoever could be attached to the statement made by 5th accused in Ext.R1(g) to connect the petitioner, then Chief Minister with whatever illegalities that are alleged to have been perpetrated in relation to the alternate site granted in favour of 5th accused. If any such illegalities has been perpetrated by revenue officials and 5th accused, no doubt, they will be liable to be proceeded against for the offences committed thereof, but to proceed against petitioner solely on the basis of the aforesaid statement in Ext.R1(g) is obnoxious and has to be deprecated.

17. In the second stage of crime, concededly, there was only attempt to commit the offences. Case of the prosecution is based on various steps taken on the request made by 5th accused for lifting the bar of alienation over the assigned land. When he moved such an application, addressed to the Revenue Minister, the Principal Secretary to Chief Minister, 4th accused, issued instructions to the Commissioner of Land Revenue, 3rd accused, to examine the matter urgently and take necessary action without delay and that petition with enclosures was forwarded to him. Though the officers of Land Revenue put up notes in the file objecting to the waiver sought for, Commissioner of Land Revenue (A3) issued specific instructions to send a report conforming with the instructions given by 4th accused, Principal Secretary to Chief Minister, and later he also sent a report striking of the objectionable notes made by his subordinates to make out a case that the Government could pass orders for waiving the bar over alienation as a special case. When such report was forwarded to the Principal Secretary to the Chief Minister (A4), she gave an instruction that the Chief Minister desired to meet the Commissioner of Land Revenue. Without amendment of the Assignment Rules, no such waiver can be made, was the stand consistently taken by the revenue officials. Overlooking that objection request for relaxation of the period of alienation over the assigned land by 5th accused was placed as an out of agenda item in the Cabinet meeting and it was approved by the Council of Ministers. Based on the Council decision, petitioner issued orders for relaxation of the period of alienation in favour of 5th accused, his brother, is the case alleged that he has abused his official position as Chief Minister to favour 5th accused. The Minister of Revenue, the Principal Secretary to Chief Minister, the Land Revenue Commissioner, and Personal Assistant of petitioner all of them were parties to the aforesaid illegal acts done to favour 5th accused, is the imputation to contend that attempts were made by them along with petitioner to commit the offences under the Act. Since the new Government soon after assuming office cancelled the decision of the Council of Ministers and no notification was issued by the Government to waive the bar of alienation over assigned land and even the assignment of alternate site in favour of the 5th accused was also cancelled, and the Council decision not having been given effect to, offences as such have not been committed but only attempt thereto made, punishable under Section 15 of the Act with substantive offence of that Act under Section 13(1) (d) of that Act, is the case now canvassed to proceed against the petitioner. Ext.P1 FIR, it is to be stated, is founded on the basis that the offences have been committed by the accused, and not a case of only an attempt made by them to commit the offences. In the statement filed on behalf of the respondents, detailed reference to the file noting made by 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 the meeting of the Council of Ministers are narrated. At the time of argument, learned DGP has also adverted to the statement given by the Commissioner (Land Revenue), 3rd accused, before the magistrate over his meeting with the Chief Minister on his summoning to his official residence by the Principal Secretary to the Chief Minister. Petitioner (Chief Minister) requested him to examine the matter and see whether anything could be done over the request made for relaxation in the bar of alienation fixed under the Assignment Rules, was his statement. Statement purported to have been recorded from the Principal Secretary (Revenue), in which, she stated of her summoning by the Minister of Revenue, the 2nd accused, and the request made by him stating that the Chief Minister is interested in the matter of relaxing the bar of alienation requested by 5th accused, has also been banked upon to contend that petitioner has shown undue favoritism and nepotism in placing the request of 5th accused for relaxation in the bar of alienation as an out of agenda item in the cabinet meeting and taking a Council decision allowing such request.

18. On the allegations raised over the attempts made by petitioner in committing of an offence under the Act, to prosecute him thereof, first of all the offence has to be noted. The offence imputed under Ext.P1 FIR falls under Section 13(1) (d) punishable under 13(2) of the Act. Section 13(1)(d) of the Act reads thus:

The aforesaid offence, if committed, is punishable under Section 13(2) of the Act with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. If there is only an attempt to commit the offence under clause (c) or (d) of sub section (1) of Section 13 of the Act, punishment is covered by Section 15 of the Act, which provides imprisonment for a term which may extend to three years and with fine. Whether the offence has been committed or an attempt to commit such offence alone is made, in both cases, the essential ingredient to show corruption by a public servant abusing his position as such has to be founded on his dishonoured intention in committing the culpable act or attempt to do such act. Special features presented in the case disclosed by the facts cannot at all be overlooked in examining whether petitioner, who then was the Chief Minister, had committed any act with dishonoured intention to prosecute him by registering a crime under Ext.P1 FIR. First, it has to be noted that the material allegation is that he has favoured his brother (A5) who was ineligible to get Government land. Ext.P1 FIR, which is based on a preliminary enquiry concludes that A5 is the brother of A1, the former Chief Minister, as disclosed from a report of Tahsildar of Ambalapuzha. In the statement filed before this court relationship of A5 with petitioner is described stating that he is the grandson of petitioner's maternal grandmother's sister. May be, in the maternal line, petitioner has a relationship with A5. But if we go by the term 'relative' under the Law Lexicon and Rules of Succession, the allegation that A5 is a brother of petitioner (A1) and how the entire case of corruption based on the relationship with A5 is sought to be projected is too far-fetched. In examining the challenges against Ext.P1 FIR, the aforesaid aspect may not be decisive, but, however when a former Chief Minister is sought to be prosecuted alleging that he had abused his official position to favour another imputing such person as his brother, when the relationship between the two, which comes under the cognate line of a great predecessor cannot be brushed aside as innocuous. Nothing more need be stated about the relationship of brethren between petitioner and A5 other than stating that it is one of distant kindred.

19. Attempt to commit the offence of corruption imputed against the petitioner with the acts purported to have been done by him for lifting the bar of alienability over the assigned land of 5th accused, abusing his position as the Chief Minister, a public servant, has now to be looked into. Whether he did any act thereof with dishonest intention to extend any benefit to 5th accused illegally and flouting the law, and, that calls for a look into the backdrop of the whole case. Whatever be the illegalities imputed over the assignment of land to 5th accused in 1977 on a claim raised by him as an ex-service man, the fact remains that assignment of 3 acres of land was made in his favour and that was recognised by the Government even when a challenge was raised thereto in a suit filed by third parties. Whatever be the reason for his not getting exclusive title and possession over such assigned land, on the request made by him at a later stage in 2007 seeking an alternate site in respect of the land assigned earlier he was given assignment of 2.33 acres of land in 2010. I have already pointed out that the imputations and allegations made to connect the petitioner with respect to the assignment of such land as an alternate site even assuming that such assignment was illegal, solely based on a statement in the application of 5th accused to the District Collector, has no merit, and so far as the first stage of the episode relating to assignment and the offences imputed thereof petitioner never could be imputed of 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 to the officials, is the case. Even if that be so, does it postulate any act of corruption - abusing his position as a public servant - Chief Minister of the State. Subsequent assignment of land in favour of 5th accused if it was in recognition of the previous assignment made to him, then, the request made by him for lifting the period of alienability over the land, at least, according to him, must be reckoned with the previous order of assignment. In such a case if he had made a request and any instruction was given by the petitioner to consider such request to the officials, it can never be stated that such instructions were given by petitioner, then Chief Minister, with a dishonest intention to assist 5th accused abusing his position as a public servant. In fact, after looking into the provisions covered by the Land Assignment Act and Rules thereof, I find, the whole exercise of conducting a vigilance enquiry with respect to the acts done by the petitioner in relation to lifting of the bar of alienability over the land assigned in favour of 5th accused is totally misconceived. Nobody has got a case that 2.33 acres of land allotted to 5th accused in 2010 which, according to him, was an alternate site for the previous assigned land was under his occupation or under 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 assigned land is imputed as a violation of Rule 8(1)(a) of the Kerala Land Assignment Rules, 1964, as amended under SRO.No.59/2009. Relevant provision under sub rule (1) of Rule 8 of the Land Assignment Rules on the bar of alienability over assigned land is thus:

Fifth accused claimed for an alternate site on the basis of previous assignment of land in his favour in 1977 and he was granted land assigned on registry in 2010, recognising that claim cannot be lost sight of in noting the request made by him and also instructions, if any, given by petitioner for its consideration, to the officials, for examining whether he had any dishonest intention in doing so. Much has been stated on the file noting put by the officials of the Revenue department and also placing of the item as an out of agenda in the Council meeting and the decision taken thereof for lifting the bar of alienability over the land assigned to 5th accused. Empowerment of the Government to dispense with any provision covered by the Rules in the assignment of the land cannot be doubted for a moment. The revenue officials have made some objections in lifting of bar of alienability over the assigned land and that was overlooked by the Council of Ministers is of little merit when the objections of the revenue officials could not be considered as binding on the Council of Ministers. Viewed in that perspective, and more so, in the backdrop that 5th accused was assigned a land in 1977, and later, on his request for alternate site in lieu of the previous land assigned, an alternate site was given, and on his request, some instructions were given by the petitioner Chief Minister, even if that be so, to the revenue officials, to consider the lifting of bar of alienability over his assigned land and also taking a decision to do so in the Council meeting, by no stretch of imagination, could be considered as acts done with dishonest intention amounting to corrupt acts abusing his position as public servant.

20. To make a person criminally accountable, it must be proved that the act imputed against him, which is forbidden by law, has been caused not only by his conduct and that the conduct was accompanied by a legally blameworthy attitude of mind. Where a public servant is proceeded for having abused his position and misconducted himself either for his own gain or for some other person the two components of the offence, a physical element and a mental element, usually called actus reus and mens rea respectively must be shown to exist. In the present case none of the acts imputed against the petitioner in relation to the steps which preceded the Council decision, and later, with respect to the relaxation over the alienability of the land assigned to 5th accused, which, even according to the prosecuting agency, amounted only an attempt to commit the offence imputed, would indicate that they have been done with a dishonest intention or guilty mind. In the backdrop that a land was assigned in favour of 5th accused in 1977, upholding his claim as an ex-service man and later an alternate site in lieu was given to him on his request, when he had approached the petitioner (Chief Minister) in relaxing the bar of alienability of such land, instructions, if any, given by petitioner, presumably taking a view, that the land assigned to him was an alternate site for a previous land much earlier, it is too hazardous to hold that such instructions were given with any dishonest intention to favour 5th accused, that too, abusing his official position as a public servant - Chief Minister.

21. The allegations set out to proceed against the petitioner as if he had committed the offence of corruption and thus liable to be prosecuted for doing so, on the facts and circumstances presented are so preposterous and unworthy of any merit. Chances are so bleak in his prosecution for such offences ending in his conviction. When that be so, continuation of the criminal proceedings against him on the crime registered under Ext.P1 FIR cannot be permitted to, and it calls for termination to advance the ends of justice.

22. Some of the features presented in the case are too disturbing and in fact give enough room to generate suspicion that the machinery of vigilance is misused and abused to silence a political opponent framing a case against him on false and frivolous allegations unworthy of any merit. I have already pointed out with respect to the commission of alleged acts imputing corruption by the petitioner that the edifice of the case against him is built upon a statement, that alone, in the application of the 5th accused to the District Collector that the petitioner had a conversation with the District Collector over the assignment of an alternate site to that accused. A Chief Minister approached with a grievance by any of his subjects, whether he be his relative or otherwise, if he puts in a word to a Government official to look into the matter, or even assuming the worst instructed that it has to be attended favourably, that by itself does not indicate that he had a guilty mind for perpetrating a corrupt act and thus liable to be prosecuted for the offence thereof. If that is the prosecution case over the commission of the offence of corruption by petitioner, which is devoid of any merit, what is imputed as the next stage of offence over the attempts made by the petitioner to commit corrupt acts with respect to orders passed for relaxing the period of alienability over the assigned land giving instructions to the Land Revenue Commissioner and later taking the Council decision, even if they are assumed to be true, they do not at all indicate that he had done any act thereof with a dishonest intention to favour 5th accused. I have already pointed out that the relationship imputed of, between petitioner and 5th accused as brothers is silly. No doubt, that was so put forth to cement the foundation for the alleged criminal acts of petitioner as favours done to 5th accused, acts constituting nepotism, abusing his position as a public servant. Strangely where the FIR has been registered after a preliminary enquiry, the police officer, who conducted such enquiry refers only to a report of the Tahsildar to impute in the FIR that 5th accused is the brother of petitioner. Statement of the respondents filed by the DGP the relationship of 5th accused with petitioner is shown as grandson of petitioner's maternal grandmother's sister. To a Chief Minister of the State, all his subjects, at least below his age, can be considered and treated as his brothers and sisters. If that be so, 5th accused can be a brother of the petitioner, but otherwise he is a person with whom he is having a too remote and distant relationship. Foundation of the case against the petitioner imputing that he has done illegal acts of favoritism to his brother 5th accused, to project imputations of corruption against the petitioner, is too shaky and not worthy enough even to be taken note of as an incriminating circumstance.

23. How the investigation after registering of Ext.P1 FIR proceeded, which I would not have referred to but for the reason that some of the materials collected thereof had been pressed into service to resist the challenges in the writ petition, lend enough support to the case advanced by the petitioner that the crime has been registered against him with oblique motives. Investigating officer, it seems, either does not know the rudimentary principles of criminal investigation or has scant respect to the fundamental principles to be adhered to in conducting investigation of a crime, that too, for grave offences under the Act. Petitioner, a former Chief Minister of the State is being proceeded alleging abuse of the position held by him in committing acts of corruption. Any investigation in a crime registered thereof should be shown to be fair, just and reasonable. One among the accused (A3) Land Revenue Commissioner had been produced before the magistrate and his statement was got recorded. Learned DGP has submitted before me that it was not recording of a confession of an accused but only statement as a witness under Section 164 of the Code. An accused person has an inviolable right that he should not be compelled to be a witness against himself as guaranteed and insulated under Article 20 (3) of the Constitution of India. Prosecution has no case that A3 has confessed of the criminal acts imputed against him and other co-accused and he has been accepted as an approver in the case. If at all his statement is to be treated as a confession, which, it is seen, has been so treated by the magistrate, who recorded his statement as reflected by the endorsement made by him in Ext.R1(v), then such confession could be made use of against a co-accused only if the accused who had confessed the guilt is jointly tried with the other accused. After recording such statement from A3 through magistrate, during the course of investigation, it is seen that accused (A3) and two other accused, all of them senior Government officials, who are imputed to have conspired with the petitioner in doing the illegal acts alleged, have been omitted from the array of the accused. If any senior Government official committed any criminal misconduct, whether it be on the instructions given by the Chief Minister or any Minister, normally, he cannot be relieved but is liable to be prosecuted. What is more strange is after setting forth a case that some senior Government officials named in Ext.P1 FIR conspired with petitioner and another Minister, and also aided and assisted them in doing of illegal acts of corruption imputed, at the final stage, after investigation, they have been left out from the array of the accused. Statement recorded from one of them with respect to the acts alleged to have been done by him, which would show that the spine of such officer is more flexible and elastic than of rubber, and that too totally inadmissible and unacceptable in evidence, has been pressed into to inculpate the petitioner, a former Chief Minister of the State, to sustain the imputations made against him of 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 2nd respondent Director of Vigilance and Anti Corruption Bureau complaining that investigation done by the present investigating officer, 3rd respondent, is unfair. No doubt, the accused has no right to canvass who should conduct investigation in the crime proceeded against him. However, where he has got a grievance that the investigation is conducted in a most unfair manner, his right to approach a superior police officer to look into that matter moving a representation cannot be considered as something which he could not canvass of or seek redressal. Ext.R1(z)(6) is the reply given by the Director of Vigilance to negative his representation. That reply dated 3.10.2012 is long after filing of this writ petition. Petitioner has not pointed out any specific instance of animosity or illwill against the present investigating officer in continuing with the investigation of the case and the report received from the Superintendent of Police, VACB, Northern Range, Kozhikode revealed that the present investigating officer is conducting the investigation in a fair and reasonable manner without fear or favour, are the reasons stated for rejecting Ext.P6 representation. Director of Vigilance is not an ornamental or glorified post for accomodating a senior police officer of the State. Where a former Chief Minister of the State, who continues as the Leader of Opposition, when he is being proceeded with as an accused in a case 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 as mandated by law, if that is dealt with in the manner indicated as under Ext.R(z)(6), then it only shows a sad state of affairs how the Vigilance wing in the State is functioning. Fairness in investigation not only to the complainant but to the accused who is proceeded against is the mandate of law. The investigating officer, 3rd respondent, is empowered to conduct an investigation of a crime where the petitioner, former Chief Minister is shown as an accused, is a different matter. Where his investigation is impeached pointing out material circumstances why it is unfair it should have received more attention. True, in the reply, the 2nd respondent has stated that the investigation is nearing completion and if further investigation is required, action will be taken at the appropriate time after scrutiny of records, but that reply, as indicated, was given after filing of the writ petition.

25. Going by the allegations raised in Ext.P1 FIR and the totality of the circumstances presented in the case to impute acts of corruption against petitioner, former Chief Minister, with all sobriety and equanimity, it has to be stated that the case canvassed by the petitioner that the registration of the crime is intended to tarnish his image before the public imputing corruption against him, that alone, cannot be brushed aside. Allegations of corruption imputed against him are so preposterous and unworthy of any merit, and the later developments after registration of the crime in leaving out the higher Government officials, proceeded as co-accused in the crime, and who are imputed of having shamelessly conspired with petitioner and another Minister to do the criminal acts of corruption, would also lend some credence to the case canvassed by the petitioner since he had been fighting corruption relentlessly through out his political career inviting the wrath of such persons proceeded against, he is also sought to be projected as corrupt by registering the crime. Fixing him as the main accused with baseless and unfounded allegations and included with some public servants as having conspired and assisted him in doing corrupt acts, the case proceeded, but, later, after investigation, the Government officials, who primarily could be imputed as culpable for having done the criminal acts obeying the instructions of Chief Minister or Minister showing their spineless character, have been left out in the case. Fixing the man and getting the cross ready for crucifixion, was it a case in search of nails. If that be so, howsoever sharp and pointed the nails are, where the cross is made of softwood each attempt to nail the person would shatter that wood into pieces. Imputations levelled in Ext.P1 FIR to proceed against the petitioner, a former Chief Minister of the State, in the facts and circumstances presented in the case, not only do not make out any offence to proceed against him but give enough room to sustain the case canvassed by him that he has been proceeded against to malign him before the public.

26. Appeals preferred with special leave petitions by two among the accused in the crime against the dismissal of their petitions challenging Ext.P1 FIR are pending before the Apex Court. That being so, challenge against Ext.P1 FIR and proceedings thereof only against the petitioner is accepted to pass orders thereof.

27. Ext.P1 FIR registered against the petitioner, proceeded as the 1st accused in the crime, in respect of him alone, and all further criminal proceedings against him on the basis of such FIR, are quashed exercising the extraordinary powers of this court. Writ petition is allowed.

S.S.SATHEESACHANDRAN JUDGE

prp