A. Somasundararajan v. The Deputy Superintendent Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.07.2017

CORAM

THE HON'BLE MR.JUSTICE V.BHARATHIDASAN Crl.O.P(MD)No.15456 of 2016 and Crl.M.P(MD)Nos.1193 and 6437 of 2017 1.A.Somasundararajan Assistant Engineer, Korampallam Anu Basin Sub Division, Kovilpatti, (Now Working as Assistant Engineer, Grithumal (Athikulam) Project Section III, Kamuthi) 2.V.Vijaya Rajan, Assistant Executive Engineer, Korampallam Anu Basin Sub Division, Kovilpatti, (Now Working as Assistant Executive Engineer, Technical Education Sub Division, Tirunelveli.

3.R.Venkataramanan Junior Engineer, Korampallam Anu Basin Sub Division, Kovilpatti, (Now Working as Junior Engineer, Section IV, Project Planning and Design Sub Division I, Tirunelveli.

4.S.Shiek Abdul Kadhar Oliyudeen, Executive Engineer, Korampallam Anu Basin Sub Division, Kovilpatti, (Now Working as Executive Engineer, Technical Education Division, Tirunelveli.

... Petitioners

-Vs1. The Deputy Superintendent of Police, Vigilance and Anti Corruption,

2. State rep.by Inspector of Police, Vigilance/Anti Corruption, Thoothukudi, 3.S.Uchimakali (R3 impleaded vide order dated 15.09.2016 in Crl MP(MD).8683/2016 ... Respondents Prayer : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for records relating to the proceedings in Crime No.1 of 2015 on the file of the respondent police and quash the same.

For Petitioners : Mr.AR.L.Sundaresan Senior Counsel for Mr.M.Gururaj For RR - 1 & 2 : Mr.C.Mayilvahana Rajendran Additional Public Prosecutor For R - 3 : Mr.S.Balamurugan

O R D E R

This Criminal Original Petition has been filed seeking to quash the proceedings in Crime No.1 of 2015, pending on the file of the respondent police.

2.The petitioners are accused Nos.1 to 3 and 5 and a case has been registered against them for the offences punishable under Sections 120(b), 465, 467, 468, 471, 477(A) and 409 IPC r/w Section 13(2) r/w Section 13(1)(c)(d) of the Prevision of Corruption Act, 1988. The first petitioner/A1 was working as Assistant Engineer in Korampallam Anu Basin Sub Division; the second petitioner/A2 was working as Assistant Executive Engineer; the third petitioner/A3 was working as Junior Engineer; the fourth petitioner/A5 was working as Executive Engineer and the another accused A4 was also working as Executive Engineer, but died pending criminal case.

3.One Uchimakali/the third respondent herein has filed the above complaint alleging that a sum of Rs.2.60 Crores was allotted to execute 26 works in a project under the Member of Parliament Local Development Scheme 2011-2012 and 2012-2013, Thoothukudi District, to protect the water channels and tanks in and around

Kovilpatti and Ettayapuram Taluks in Korampallam Division. The petitioners without doing works as assigned have misappropriated the amounts. Based on the said complaint, preliminary enquiry was conducted by the Department of Vigilance and Anti Corruption and preliminary enquiry report was filed on 31.10.2014. Based on which, First Information Report has been registered on 07.02.2015 for the above said offence. In order to quash the said First Information Report, the present Criminal Original Petition has been filed.

4.Heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioners and Mr.C.Mayilvahana Rajendran learned Additional Public Prosecutor for the respondents 1 and 2 and Mr.B.Balamurugan, learned counsel for the third respondent. 5.The learned Senior Counsel appearing for the petitioners submitted that based on the faulty preliminary enquiry report and without verifying the actual facts and without examining proper officials who are assigned with the work, crime has been registered against the petitioners. Even though preliminary enquiry report disclosed that no work was done by the officials, after investigation, it is seen from the counter filed by the first respondent, the petitioners have completed 16 works and 10 works are incomplete which itself shows that the preliminary enquiry is a faulty enquiry and based on the above preliminary enquiry report, crime cannot be registered against the petitioners. Apart from that it is only a private dispute between the contractors.

6.Per contra, the learned Additional Public Prosecutor would submit that based on the complaint given by the third respondent, preliminary enquiry was conducted and based on the preliminary enquiry report, First Information Report has been registered. Since based on the preliminary enquiry report, the First Information Report has been registered, it cannot be stated as a faulty report. The learned Additional Public Prosecutor further submitted that already the third respondent has filed a Petition in Crl.O.P(MD)No.14263 of 2015 seeking direction to file a final report and this Court by the order dated 27.07.2015 directed the respondent police to complete investigation and file final report on or before 31.01.2016, and the respondents are taking steps to file a final report within the time stipulated, now the petitioners have filed this petition and obtained an order of stay from proceeding further with the investigation. 7.I have considered the rival submissions made on either side and perused the records carefully.

8.It is a settled principle of law that the First Information Report can be quashed if the allegation made in the complaint or in the FIR, even if they are taken at their face

value and accepted its entirety do not constitute prima facie offence or make out a case against the accused; or the FIR do not disclose a cognizable offence, justifying an investigation by the respondent police; or the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of no prudent person can reach a conclusion that there is sufficient ground for proceeding against the accused; or it is manifestly attended with mala fide or it is instituted maliciously with ulterior motive. 9.The Hon'ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335, after analysing the provisions of the Criminal Procedure Code, especially relating to the registering of First Information Report, conducting of investigation, including the powers of the High Court to interfere with the First Information Report under Section 482 Cr.P.C., has issued broad guidelines, which are as follows:

"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".

10.Keeping the above principle in mind, we have to consider the instant case. The allegation against the petitioners is that all the petitioners are working as Assistant Engineer, Assistant Executive Engineer etc., in Korampallam Anu Basis Division, while executing 26 works in a project under the Member of Parliament Local Development Scheme, they misappropriated the amount without doing works as assigned. Earlier, preliminary enquiry was conducted by the Vigilance and Anti Corruption and based on the report filed by them on 31.10.2014, FIR has been registered. 11.The learned Senior Counsel appearing for the petitioners would contend that the above preliminary enquiry is a faulty enquiry, and based on the faulty preliminary enquiry report, FIR cannot be registered, this contention cannot be considered at this stage.

Even as per the preliminary report, the petitioners only completed 16 works and 10 works were incomplete, but they have withdrawn the entire amount without completing the work, which itself make out a prima facie offence. It is not the contention of the petitioners that the criminal complaint has been filed with mala fide intention or it has been maliciously instituted and the complaint is absurd and inherently improbable. 12.In the above circumstances, there is no impediment to proceed with the First Information Report and I find no ground to quash the FIR.

13.Considering the above facts and circumstances, I find no merit in the petition and the same is dismissed. Consequently, Crl.M.P(MD)Nos.1193 and 6437 of 2017 are closed. Sd/- Assistant Registrar(RTI) /True copy/ Sub Assistant Registrar To

1. The Deputy Superintendent of Police, Vigilance and Anti Corruption,

2. The Inspector of Police, Vigilance/Anti Corruption, Thoothukudi, 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 cc to MR.M.Gururaj , Advocate in SR.No. 68866 +1 cc to Mr.S.Balamurugan , Advocate in SR.No. 68740 Mj AE/MR KKR/SAR1/26.09.2017/6P/6C Crl.O.P(MD)No.15456 of 2016 28.07.2017