5/28/2018 Moi Deen

1/6

Page:1

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

www.livelaw.in

Moideenkutty v. State of Kerala.[2003 (2) KT SN 56 : 2003 (1) KLJ 728 ]

JUDGMENT

1. The appellant inthisWrit Appeal is the petitioner inO.P.No. 15632 of 2000.While the appellant was working as Forester in the Forest Department of theGovernment of Kerala, he was charge sheeted in connection with certainirregularities allegedly committed during 1982-83 in the Social Forestry Units,Palakkad and Pattambi and certain irregularities allegedly committed during1984 in the Social Forestry Unit, Palakkad. As per the charge sheet, thecharges levelledagainst the appellant were:(a) Misappropriated government money without actually doing the works asper estimate provisions.(b) Manipul

atedgovernment records to suit

personalgain and

(c) Supervisory failureinproper executionof departmental works resultedin the failure of many nurseries, causing heavy loss to the government to thetune of Rs.61,274.27.The appellant submitted his explanation denying the charges against him.After detailed enquiry, the enquiry officer found that the charges against theappellant had not been proved. Accepting the report of the enquiry officer(Custodian / Conservator of Vested Forests, Kozhikode), the ChiefConservator of Forests dropped all further proceedings against the appellant.Thereafter the appellant retired from service on superannuation on30-09-1985. Almost 14 years after his retirement from service onsuperannuation, the appellant received Ext. P2 summons dated 3rd March,1999 from the Court of the Enquiry Commissioner and Special Judge,Kozhikode inCalendar Case No.4 of 1999 requiringhim to appear before thatCourt on 13-4-1999 to answer to charges under S.5(2) read with 5(1)(c) & (d)of the Preventionof Corruption Act, 1947 and S.409, 465, 477(A) and 120B ofthe Indian Penal Code. Later he was served with Ext. P1 charge sheet dated12-1-1998 which was pursuant to F.I.R.No.2 of 1992 dated 31-8-1992 of theVigilance and Anti Corruption Bureau, Kozhikode. The charge sheet againstthe appellant and the coaccused Mukundan read as follows:"The charge against Al; Sri. Mukundan, S/o. Govindankutty Nair, No. 343,

Chandra Nagar Coloney, Palaghat 7 and A2, Sri. P.I. Moideenkutty, S/o.

5/28/2018 Moi Deen

2/6

Page:2

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

www.livelaw.in

Ismail, Poolakkal House, (PO) Edathara, Palakkad District is that while theywere working as public servants in the capacities of Range Officer andForester respectively at Social Forestry Range, Palakkad engaged in a

criminal conspiracy as a result of which they had raised nurseries at Erimayur,Govt. College, Chittoor and Moolathara during 1983 by carrying out the workat a lower rate than the estimate rate directly by Al and A2 without engagingconvenors as reported by them and by not executing the whole work chargedas per vouchers and thereby Al and A2 dishonestly and fraudulentlymisappropriated Government money to a tune of Rs. 86,386.79/- by makingforged and bogus vouchers and wilfully and with intent to defraud, falsifyingthe records maintained by them and therefore by corrupt or illegal meansobtained for themselves a pecuniary advantage as stated above and therebyboth accused committed offences punishable under S.5(2) R/W. 5(1)(c) and

(d) of P.C. Act 1947 and S.409, 465, 477(A) and 120(b) of I.P.C.Thereupon the appellant filed O.P. No. 15632 of 2000 praying for quashing theentire proceedings initiatedagainst himpursuant to Ext. P1 Charge sheet andExt. P2 Summons issued under S.61 of Criminal Procedure Code and forprohibiting the Enquiry Commissioner and Special Judge, Kozhikode fromproceeding with C.C. No. 4 of 1999 against him. Along with the OriginalPetition, the appellant filed C.M.P. No. 25532 of 2000 praying for stay of allfurther proceedings in C.C. No. 4 of 1999 on the file of the EnquiryCommissioner and Special Judge, Kozhikode pending disposal of the OriginalPetition. While ordering notice to the respondent in the Original Petition and

the C.M.P, the court passed an interimorder on 6-6-2000 granting stay for twomonths. On 4-8-2000 the stay was extended for two weeks and on 17-8-2000the stay was extended until further orders. However, C.M.P. No. 25532 of2000 was posted before the court on 28-5-2002 and the court passed thefollowingorder:"Stay is vacated in the light of the decision of the Supreme Court that theproceedings pending on the file of the Enquiry Commissioner and SpecialJudge cannot be stayed. The petition isdismissed".Aggrieved by the said order dated 28-5-2002 vacating the stay and dismissingC.M.P. No. 25532 of 2000, the petitioner in the Original Petition and C.M.P.has filedthisWrit Appeal.

2. It is not disputed that the decision of the Supreme Court referred to by thelearnedSingle Judge inthe impugnedorder dated 28-5-2002 is the decision inSatya Narayan Sharma v. State of Rajasthan, 2001 (3) KLT 599 (SC). It was acase in which the Trial Court had taken cognizance against the accused

5/28/2018 Moi Deen

3/6

Page:3

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

www.livelaw.in

(appellant before the Supreme Court) for offences punishable under S.420,

467, 468 and 471 of the I.P.C. and S.5(2) of the Preventionof Corruption Act.The accused filed a Criminal Miscellaneous Petition in the High Court under

S.482 of the Criminal Procedure Code for quashing the order passed by theTrial Court taking cognizance of the offences against him. The High Courtgranted stay of the trial. Having obtained a stay of the trial, the CriminalMiscellaneous Petition was adjourned from time to time and by that methodthe accused successfully delayed the trial for seven years. Ultimately, theCriminal Miscellaneous Petition was dismissed by the High Court. Challengingthe order of the High Court dismissing the Criminal Miscellaneous Petition, theaccused filed Criminal, Appeal No. 981 of 2001 before the HonourableSupreme Court. While dismissing the Criminal Appeal, the HonourableSupreme Court found that what happened in the case was happening in a

large number of criminal cases. The Supreme Court observed that, whenpublic servants are sought to be prosecuted under the said Act, by filingrevisions under S.397 of the Criminal Procedure Code or by filing petitionsunder S.482 of the Criminal Procedure Code, stay of the trial was obtainedand parties successfully managed to delay the trial. The supreme Court furtherobserved that stays were granted by courts without considering and / or incontravention of S.19(3)(c) of the Prevention of Corruption Act. According tothe Supreme Court, this had an adverse effect on combating corruptionamongst public servants and it had therefore become necessary to reiteratethe law. After considering the provisions contained in S.19, 22, 23 and 27 of

the Prevention of Corruption Act, 1988 and S.397 and 482 of the CriminalProcedure Code, it was held that in view of the provisions contained inS.19(3)(c) of the Prevention of Corruption Act, 1988, the High Court cannotstay the proceedings under the Preventionof Corruption Act, 1988 or exercisethe powers of revision in relation to any interlocutory order passed in anyinquiry, trial, appeal or other proceedings. On a careful reading of the separatejudgments. On a careful reading of the separate judgement written byHonourable Mr. Justice S.N. Variava and Honourable Mr. Justice K.T.Thomas, we find that Their Lordships were considering the power of the HighCourt under the provisions of the Criminal Procedure Code, particularlyS.397and 482, to stay the proceedings under the Prevention of Corruption Act, 1988.Their Lordships did not consider the power of the High Court underArt.226/227 of the Constitution of India to stay the proceedings under thePrevention of Corruption Act, 1988. Nor did Their Lordships hold that in viewof the provisions contained in S.19(3)(c) of the Prevention of Corruption Act,1988, the High Court has no power under Art.226/227 of the Constitution of

5/28/2018 Moi Deen

4/6

Page:4

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

www.livelaw.in

India to stay the proceedings under the said Act. Admittedly, O.P. No. 15632of 2000 was filed under Art.226 and 227 of the Constitution of India andC.M.P. No. 25532 of 2000 was filed under R.150 of the Rules of the High

Court of Kerala, 1971. The said R.150 is in respect of proceedings underArt.226 and 227 of the Constitution of India. Thus the stay granted by thelearnedSingle Judge was inproceedings under Art.226/227 of the Constitutionand not under the provisions of the Code of Criminal Procedure. Therefore, thelearned Single Judge was not right in vacating the stay and dismissing C.M.P.No. 25532 of 2000 only on the basis of the decision of the HonourableSupreme Court in Satya Narayan Sharma v. State of Rajasthan (supra).Admittedly, the stay was vacated not on any other grounds. Hence, theimpugnedorder of the learnedSingle Judge isillegaland liableto be setaside.

3. In the light of the decisions of the Honourable Supreme Court in State ofHaryana v. Chaudhary Bhajan Lal and others, JT 1990 (4) SC 650 and M/s.Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others JT1997 (8) SC 705, it is settled law that under Art.226/227 of the Constitution ofIndia, the High Court can exercise its power of judicial review in criminalmatters and that such power of judicial review can be exercised by the HighCourt either to prevent abuse of the process of any Court or to secure the endsof justice. Hence it cannot be disputed that the Original Petition filed by theappellant under Art.226 and 227 of the Constitution of India praying to quashthe entire proceedings initiated against him pursuant to Exts. P1 and P2 andfor prohibiting the Court of the Enquiry Commissioner and Special Judge,Kozhikodefrom proceeding with Calendar Case No. 4 of 1999 ismaintainable.

4. S.19(3)(c) of the Preventionof Corruption Act, 1988 reads as follows:"(3) Notwithstanding anything contained in the Criminal Procedure Code,1973, (2 of 1974),xx xx xx xx(c) no court shall stay the proceedings under thisAct on any other ground andno court shall exercise the powers of revision in relation to any interlocutoryorder passed inany inquiry, trial, appeal or other proceedings".

The above prohibition against granting stay of proceedings under thePrevention of Corruption Act cannot apply to the exercise of the power of theHigh Court to grant stay under Art.226/227 of the Constitution of India. Thejurisdiction conferred on the High Court under Art.226/227 of the Constitutionis part of the inviolable basic structure of the Constitution, as held by theHonourable Supreme Court inL. Chandra Kumar v. Union of India, AIR 1997

5/28/2018 Moi Deen

5/6

Page:5

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

www.livelaw.in

SC 1125. Hence the power of the High Court under Art.226/227 cannot becurtailedor taken away by any statute like the Preventionof Corruption Act. Itis also significant that the provisions contained in S.19(3) start with the non

obstante clause, "notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974). Hence we hold that the prohibition underS.19(3)(c) of the Prevention of Corruption Act, 1988 can apply only to theexercise of the power of the courts under the Code of Criminal Procedure.

5. The main ground urged by the petitioner inO.P. No. 15632 of 2000 is thatin view of R.3(c) of Part III of Kerala Service Rules as it stood prior to4-12-1990, no judicial proceedings, if not instituted while the employee was inservice whether before his retirement or during his re - employment, shall beinstituted in respect of a cause of action which arose or an event which tookplace more than four years before such institution. Admittedly, the chargeagainst the appellant is in respect of the irregularities allegedly committed byhim during 1982-83 and 1984. The appellant retired from service onsuperannuation on 30-9-1985. The F.I.R. was registered only on 31-8-1992and the charge sheet was filed only on 12-1-1998. Hence, according to theappellant, in view of R.3(c) of Part III of the Kerala Service Rules at it stoodprior to 4-2-1990 judicial proceedings inCalender Case No. 4 of 1999 on thefile of the Court of the Enquiry Commissioner and Special Judge, Kozhikodecould not have been validly instituted against him and therefore, the saidproceedings are liable to be quashed. It is true that after the amendment ofR.3(c) of Part III of the Kerala Service Rules, as per G.O. (P) No. 3612/90 /Fin. dated 25-6-1990 (SRO No. 1665/90) published inKerala Gazette No. 48dated 4-12-1990, the said rule authorises institution of judicial proceedingswith the sanction of the Government against a government employee after hisretirement in respect of a cause of action which arose or an event which tookplace more than four years before such institution. It is also true that the saidamendment to R.3(c) of Part III of the Kerala Service Rules was brought intoforce with retrospective effect from 14th November, 1966. But according to theappellant, in spite of the retrospective amendment to R.3(c) of Part III of theK.S.R., the amended rule cannot be applied in his case as he had alreadyretired from service on superannuation on 30-9-1985 and the amendment to

the Rulewas made, though with retrospective effect, onlyon 4-12-1990. In thisregard, the appellant reliedon the judgment of thisCourt inNatarajan v. Boardof Revenue, 1995 (1) KLT 695. In the Original Petition, the appellant has alsocontended that since the alleged irregularities were committed 17 years agoand since the appellant retired from service 15 years ago and since the

5/28/2018 Moi Deen

6/6

Page:6

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

www.livelaw.in

appellant isaged 71 years, dragging him to the Criminal Court now isviolativeof hisfundamental right guaranteed under Art.21 of the Constitution of India. Ithas also been pointed out that the charge sheet against the appellant, in

Calender Case No. 4 of 1999 pending before the Enquiry Commissioner andSpecial Judge, Kozhikode is based on the same allegations which were thesubject matter of the departmental enquiry in which he was exonerated. In ourview, there is considerable force in the above contentions of the appellant, andtherefore, the appellant has made out a strong prima facie case inthe OriginalPetition for staying the trial of the criminal case against him.Hence on merits,the petitioner in O.P. No. 15632 of 2000 was entitled to have the stay ordercontinuedtill the disposal of the Original Petition.6. In the above circumstances, the impugned order is set aside. Furtherproceedings inCalender Case No. 4 of 1999 pending against the appellant in

the Court of the Commissioner and Special Judge, Kozhikode, will standstayed till the disposal of the O.P. No. 15632 of 2000. The Registry isdirectedto post the O.P. No. 15632 of 2000 for finalhearing on 7th April,2003.7. The Writ Appeal isdisposed of inthe above terms.