Kerala High Court: V.G. Arun, J., held that a complaint cannot be entertained in corruption cases when the FIR based on the same facts had already been quashed on merits.
The instant application had challenged the order of the Special Judge dismissing the complaint filed by the petitioner against respondents 2 to 9. The petitioner, a former Chief Minister of the State, had raised the allegations that one Avruthi Mall Management Co. Ltd. (the Company) was in possession of one acre of land and a shopping mall was being constructed in that property by respondent 8. The sewerage pumping the main line of the Kerala Water Authority had been laid diagonally through the company’s property while respondent 2 was the Chief Minister and respondents 3 to 5 were high ranking officials in the Government, the sewerage line was shifted to one side of the company’s property, thereby effectuating construction over a larger area. The land over which the sewerage line was drawn was actually Government land, which had vested with the Water Authority under Section 16 of the Kerala Water Supply and Sewerage Act, 1986.
It was alleged that the Company along with its managing director had reduced the property into their possession by creating false documents. While respondents 2 to 5 had aided respondents 6 to 9 by shifting the sewerage line, in gaining an undue pecuniary advantage. And that the order authorizing shifting of the pipeline was issued by suppressing adverse reports and in violation of the prescribed procedure. Therefore, an FIR was filed for offences punishable under Section 120B Penal Code, 1860 read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. Prior to the filing of the said FIR, another public-spirited citizen had filed a complaint before the Lok Ayukta.
After elaborate consideration of the allegations, the Bench found the claim of title by the Water Authority over the company’s land to be unsustainable. It was also held that, even if the allegation that the property in dispute belongs to the Water Authority was accepted, the action of the accused would not attract the provisions of the Prevention of Corruption Act since the respondent Company had not gained any pecuniary advantage by the shifting of the sewerage line from one part of its property to another. Based on the findings, it was held that the FIR did not disclose commission of the offences under the Prevention of Corruption Act. Accordingly, FIR and further proceedings were quashed.
According to the petitioner, the allegations in complaint and FIR were different and in any event, the complaint should not have been rejected without conducting preliminary enquiry. The decision of the Supreme Court in Lalita Kumari v State of U.P., (2014) 2 SCC 1, was pressed into service in support of this proposition.
A comparison of the averments in FIR and complaint revealed that the allegations were substantially the same. The Bench opined that the only difference that the complaint contained more details was immaterial as FIR need not be a compendium of all facts. Therefore, the Bench held that allowing the petitioner’s prayer would result in the registration of a second FIR on the very same set of facts. Reliance was placed by the Court on T.T. Antony v State of Kerala, (2001) 6 SCC 181, wherein the Supreme Court had considered the validity of second FIR on the same facts:
“…the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.
A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court…the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case.”
Going by the principle enunciated above, the Bench held that the Special Judge was fully justified in rejecting the complaint, since a second FIR based on the very same allegations cannot be registered, more so when the first FIR had been quashed on merits. Differentiating the Lalita Kumari case, the Bench stated that the legality or otherwise of registering a second FIR based on the same set of facts had not arisen for consideration therein. On the question of preliminary enquiry, the conclusion in Lalita Kumari was as under;
“As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
- Matrimonial disputes/family disputes
- Commercial offences
- Medical negligence cases
- Corruption cases
- Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”
In the light of the above the Bench opined that the decision in Lalitha Kumari case could not be understood to be a declaration that even in cases where FIR is already registered, preliminary enquiry is bound to be held on a subsequent complaint, containing the very same allegations, being filed. Accordingly, the instant application was dismissed.[V.S.Achuthanandan v. State of Kerala, CRL.MC NO. 4692 of 2019, decided on 08-06-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For The Applicant: Adv. S.Chandrasekharan Nair, Adv. Raju George And Adv. S.Gokul Babu
For Vigilance Commission: Adv. K.B.Sony,