Vs. State of Kerala  Insc 910 (6 December 2006)
Arijit Pasayat & S.H. Kapadia
ARIJIT PASAYAT, J Challenge in this appeal is to the judgment rendered by a
learned Single Judge of the Kerala High Court holding that since the appellant
was not holding office which he allegedly abused, at the time of taking
cognizance, no sanction was necessary.
stand in this appeal is that the view expressed in R. S. Nayak v. A.R. Antulay
(1984 (2) SCC 183) is not correct and fresh look is necessary as the
observations made are per incuriam. An additional point has been raised that
the prosecution is the outcome of mala fides and varying stands taken at
different stages clearly indicate the fact that the appellant is the victim of
personal and political rivalry with leaders of some political parties.
counsel for the respondent-State on the other hand submitted that the decision
in R.S. Nayak's case (supra) cannot be said to be a case of per incuriam.
Additionally, there is no mala fide involved. It is stated that even if for the
sake of arguments it is conceded but not admitted that political reasons exist
that cannot be a ground to quash the proceedings. In any event, the
circumstances highlighted by the appellant to substantiate the plea of
allegation cannot be taken note of.
principal stand of the appellant's arguments regarding the status on the date
of cognizance has been elaborately dealt with and the decision in Parkash Singh
Badal's case rendered today (in Criminal Appeal arising out of SLP (Crl.) 19640
of 2004) rightly accepts his case. The stand in this regard is clearly without
residual question therefore is whether mala fides are involved. As is noted in Parkash
Singh Badal's case even though there is an element of personal or political
rivalry, it is ultimately to be seen whether materials exist to substantiate
the allegations. In that sense it is not the credibility of the person who
makes the allegations but the existence of materials necessitating investigation
which is relevant.
that extent, learned counsel for the respondent-State is correct. But certain
peculiar features exist in this case which need consideration.
Chief Secretary of the State on 24.11.2005 has filed an affidavit stating that
the State Government wanted to withdraw the prosecution and it is not in
dispute that the affidavit was filed with authority. Relevant portion of the
affidavit reads as follows:
xx xx xx
The allegations that petitioner had managed to clear the proposals through the
Council of Ministers without any discussion has no basis. The matter was
approved by the Council of Ministers.
From the foregoing facts it is obvious that no criminal culpability could be
made out in respect of this deal. As the State Government did not incur any
loss or as the private party did not make any unlawful gain, the allegations of
criminal conspiracy or any other irregularity are not sustainable. Taking all
these facts into consideration the State Government have decided to move the
Court of the Special Judge & Enquiry Commissioner, Thiruvananthapuram for
withdrawal of prosecution against all accused in the case No.CC6/03 charge
sheeted based on the crime case 1/97/SCT u/s 13(2) r/w Section 13(1)(d) of PCX
Act and Section 120B of IPC as provided U/s 321 of Criminal Procedure
interestingly subsequently another affidavit has been filed stating that there
is no intention to withdraw the prosecution.
counsel for the appellant attributes to this change of stand to the political
scenario and the people in Government. It is stated that the person who had
filed the application for intervention when the earlier affidavit proposing
withdrawal of prosecution was filed happens to be the present Chief Minister of
the State. This according to learned counsel for the appellant is a clear case
of political vendetta.
counsel for the respondent on the other hand stated that all relevant facts
were not noticed when earlier petition was filed. Therefore, in essence there
is no change in stand.
aspects were not before the High Court when the matter was heard. The relevance
of these factors therefore could not have been considered.
while upholding the order of the High Court to the extent it hold that the
status on the date of taking cognizance vis-`-vis the position when the office
was allegedly abused has been rightly decided. We direct the High Court to
consider the matter relating to the plea of mala fides for which the parties
shall be permitted to place relevant materials. The same shall be done within a
period of six weeks. As the matter is pending since long, we request the High
Court to dispose of the matter within three months from the date on which the
materials are placed by the parties before it. We make it clear that we have
not expressed any opinion on the said aspect of the case.
appeal is accordingly disposed of.