MOOSA Vs. JOMON PUTHANPURACKKAL

JUDGEMENT

(1.) First respondent filed a complaint before Enquiry Commissioner and Special Judge, Kozhikode alleging that the five accused shown therein committed offences under Sections 7, 10, 11, 13 and 15 of the Prevention of Corruption of Act, 1988 (for short PC. Act). First accused was the then Minister for Education and second accused, the then Principal Secretary, Education Department, State of Kerala: 5th accused was an Ex-MLA and accused 3 and 4 are leaders of Indian Union Muslim League, one of the ruling political parties in Kerala. Petitioners in Crl.R.P. 1215705 were the original accused 3 and 4 who are now arrayed as accused 1 and 2. Revision petitioner in Crl.R.P.1135/05 is the 5th accused who is now arrayed as third accused. They are challenging the order of Enquiry Commissioner for Special Judge, dated 14.2.05 whereunder charge for the offence under Section 9 of the Act read with Section 34 of IPC was framed against accused 1 to 3. The learned Special Judge had taken cognizance of the complaint on 10.3.04 and conducted enquiry as provided under Section 202 of the Code of Criminal Procedure. Statements of witnesses including first respondent complainant and Metropolitan, Yoohannan Mar Philixinos were recorded. Thereafter cognizance was taken against petitioners after arraying them as accused 1 to 3. Revision petitioners in Crl.R.P.1215/05 challenged that order before this Court in W.P.(C) 3959/05. A learned single Judge, as per order dated 22.2.05 dismissed the petition holding that there is no ground to quash the order. W.P.(C) 3959/05 was filed at a time when learned Special Judge was recording prosecution evidence as provided under Section 244 of the Code of Criminal Procedure. After completing the recording of prosecution evidence, learned Special Judge framed the charge against petitioners for the offences under the impugned order.

(2.) Petitioners in Crl.R.P.1215/05 are contending that court below failed to take note of the fact that there was no evidence showing a prima facie case as the material witness examined did not give evidence in chief examination and only stated that a statement was furnished earlier under Section 202 of the Code and it is not an evidence which could be looked into for the purpose of deciding whether there is evidence to frame charge and the order of the learned Special Judge relying on the inadmissible evidence is illegal and irregular. It was contended that as there is no chief examination to support the allegations in the complaint, it is a case without any evidence to proceed further against the accused and the order framing charge is illegal and is to be set aside. It was also contended that finding of the Special Judge that evidence of PW6 is more than sufficient to frame charge for the offence under Section 9 of the Act is perverse and it amount to miscarriage of justice and on the materials available, it can only be held that no case has been made out to frame the charge and so the order is unsustainable. Revision petitioner in Crl.R.P. 1135/05 has challenged the order reiterating the contentions of the other petitioners. He also contended that evidence tendered by PW6 in cross-examination contradicts his case at the time of inquiry under Section 202 and therefore the court below should not have framed charge and the impugned order is to be set aside and accused are to be discharged.

(3.) The allegation of first respondent in the complaint was that revision petitioners owing allegiance to Muslim League demanded gratification from PW6 Metropolitan, as a motive for inducing public servants to give 'No Objection Certificate' for B.Ed. College to be started at Meenangadi under the Jacobite Educational and Charitable Trust, Malabar Diocese. The allegation was that accused demanded the gratification to the tune of Rs. 2 1/2 lakhs for constructing a building for the District Committee of Muslim League for the purpose of exercising their personal influence on the Minister for Education and other officials who were in authority, to grant No Objection Certificate applied for by PW6. Special Judge examined six witnesses and on that evidence framed the charge against the accused. First witness was a member of Kerala Legislative Assembly who was an ex-Minister for Irrigation. When examined PW1 deposed that PW6 told him that revision petitioners demanded money for construction of District Committee Office of Muslim League for exercising their personal influence on the Education Minister for granting sanction to the B.Ed. College applied for. PW2 was another sitting MLA who also deposed that first respondent had met him and he handed over a copy of the letter sent by PW6 to the then Chief Minister wherein it was alleged that revision petitioners demanded gratification. Both PWs.1 and 2 have no personal knowledge about the demand for gratification. Their evidence is only hearsay. PW3 only deposed that he saw second revision petitioner in Crl.R.P.1215/05 coming downstairs, when he had gone to Bishop's house at Meenangadi and he enquired with PW6 why third accused was seen in angry mood, PW6 allegedly disclosed that he had demanded Rs. 2.1/2 lakhs as bribe for granting B.Ed. College. PW4 is the Chief Minister of Kerala. PW4 only deposed that he had received copy of Ext.A1 letter from Bishop alleging that revision petitioner demanded bribe. First respondent was examined as PW5. He has admittedly no personal knowledge on the allegations. It is on the evidence of PW6 Metropolitan, learned Special Judge framed the charge holding that, there is no inherent infirmity or improbability in his version and the probative value of the evidence is to be determined at the stage of trial and evidence tendered by the first respondent is sufficient to hold that there is a prima facie case to go for trial.