R. Subbuthai v. The State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.04.2022

CORAM:

THE HONOURABLE Mr. JUSTICE G.CHANDRASEKHARAN Crl.O.P.No.10179 of 2022 and Crl.M.P.No.6033 of 2022 R.Subbuthai .. Petitioner/1st Accused Vs.

The State represented by, The Additional Superintendent of Police, Vigilance and Anti Corruption, City Special Unit - III, Chennai - 600 016.

.. Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C to call for the records in crime No.03/AC/2022/CC-II on the file of Respondent Police, Vigilance and Anti Corruption, City Special Unit - III, Chennai - 600 016 and quash the same. For Petitioner : Mr.T.Sivananthan For Respondent : Mr.E.Raj Thilak Additional Public Prosecutor

O R D E R

The Criminal Original Petition has been filed under Section 482 of Cr.P.C. to call for the records in crime No.03/AC/2022/CC-II on the file of Respondent Police, Vigilance and Anti Corruption, City Special Unit - III, Chennai - 600 016 and quash the same.

2. The FIR came to be registered against the petitioner and other accused for the offences under Sections 13(2) r/w 13(1) (c) & (d) of Prevention of Corruption Act, 1988. The allegations made in the FIR, in brief, are that the first accused was formerly working as Town Planning Officer, Avadi Municipal Corporation and presently working as Assistant Executive Engineer, Madurai Corporation. She served from

12.06.2002 to 10.09.2004 and 05.10.2017 to 08.05.2020. The second accused Balasubramanian worked as Municipal Engineer, i/c Municipal Commissioner, Avadi Municipal Corporation, served during the period from 01.01.2004 to 15.05.2004. The third accused worked as Town Planning Inspector, Avadi Municipal Corporation, served during the period from 19.03.2019 to 07.02.2020 and the fourth accused K.Krishnamoorthy, Commissioner (Retd), Avadi Municipal Corporation, served from 13.07.2019 to 05.11.2019.

3.The first accused, during her first stint and second accused while discharging their duties at Avadi Municipality during the period from 2002 to 2004, had violated the procedures and sanctioned approval for regularization of land in S.Nos.289/2, 292/2 part, 291/2 part, 291/3, 291/5, 291/6, 291/7, 291/8, 291/9 and 290/4 having an extent of 99106 sq.ft. in Thirumullaivoyal for the applicant, namely, B.Jeyaraman, No.5, O.P. Raman Street, Kamaraj Nagar, Avadi, on his application dated 08.07.2002 for regularization of land survey No.282/3 and thus caused loss to the tune of Rs.12,00,000/- to the Municipal funds.

4.The following procedures have been violated during the period 2002-2004:

a. The land to an extent of 2.26 acres had been regularized as single plot according to recommendation of the first accused, for S.Nos.291/2, 291/3, 291/5, 291/6, 291/7, 291/8, 290/4, which was irregular, since the application dated 08.07.2002 for regularization of S.No.282/3 only applied. The power of granting the planning permission for the abovesaid survey numbers are vested with Member Secretary, CMDA. Municipal Commissioner only has the power of granting permit/approval for subdivision of the land to an extent of 1000 sq.mt /24 cents into 8 plots. Late Vinayagam, formerly Town Planning Inspector, Avadi Municipal Corporation, one day earlier before making the payment charges to the claim, had made remarks on the note of Town Planning Inspector, dated 16.02.2004, against the procedure. The applicant remitted the Development Charges only on 16.02.2004 and building application fees and vacant land tax on 17.02.2004.

The application for regularization of land in S.No.282/3 of Jeyaraman had been received in Avadi Municipality on 08.07.2002. b. Late Vinayagam should have inspected the site, with the orders of A1 and A2 and should have submitted the note. But, late Vinayagam dealt with the application after 19 months on 16.02.2004 without following the due procedures, without the orders of A1 and A2, without citing the date of inspection, the extent and submitted the note to A1.

c.The regularization charges had not been collected and sent to CMDA and it resulted in wrongful loss. d.10% of total extent of land should be handed over through OSR Gift deed or charges equivalent to the value of the 10% of extent of the land should be remitted by the applicant to the competent authority prior to sanction of approval for regularization. Neither the 10% of the land of total extent nor the charges was collected by A1 to A4.

5.During her second stint from 2017 to 2020, first accused committed further irregularities. She violated the procedures with an intention to cheat the Municipality, had favoured the private individuals and obtained pecuniary gain for themselves. A1, A3 and A4 violated the procedures and granted the approval for residential plots, for the land situated at T.S.No.90/2, 91/2, 92, 93, 95, 96 and 99 of Sekkadu Village and favoured the applicant, namely, K.Ravichandran and thus, obtained pecuniary gain for themselves. There was no proof of collection of the charges of basic amenities like installation of street light, drainage, road formation, certain charges levied on the applicant which was not charged and thus caused financial loss to the CMDA/Municipal Corporation. Therefore this case was registered as aforestated.

6.The learned counsel for the petitioner submitted that FIR was filed for violating procedures, which were said to have taken place during the period from 2002-2004 and 2017 - 2019. He further submitted that the petitioner is innocent, she had only forwarded the proposal to the CMDA and approval was granted by CMDA. The petitioner has nothing to do with the approval granted by CMDA. The petitioner is aged 54 years and this case is foisted only to harass her and therefore, the FIR has to be quashed.

7.In response, the learned Additional Public Prosecutor submitted that after proper investigation and after obtaining approval under Section 17A of Prevention of Corruption Act, 1988, FIR was registered only on 23.02.2022. The respondent police should be given an opportunity to investigate and find out the truth and file a final report.

8. The legal position with regard to quashing of FIR is very well settled in the case of State of Haryana and others Vs. Bhajan lal and others reported in 1992 Supp(1) SCC 335. The relevant portion of the judgment is extracted hereunder: 102.

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV

and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section

155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

9.The FIR allegations on the face of it makes out the cognizable offences against the petitioner and the other accused. It is alleged that the petitioner along with the other accused caused wrongful loss to the CMDA to the tune of Rs.12,00,000/- during 2002-2004 and further loss during 20172019, for obtaining pecuniary gain for themselves. Preliminary

investigation was conducted and approval was also given for registering FIR under Section 17A of Prevention of Corruption Act, 1988. In this circumstances, this Court is of the considered view that the respondent police should be given an opportunity to conduct investigation in this case and file a final report, which may be positive or negative. There are no merits to quash the FIR and in this view of the matter, this criminal original petition is dismissed.

Consequently, connected miscellaneous petition is also closed. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar sli To:

The Additional Superintendent of Police, Vigilance and Anti Corruption, City Special Unit - III, Chennai - 600 016.

Crl.O.P.No.10179 of 2022 and Crl.M.P.No.6033 of 2022 SKM(CO) GN(10/06/2022)