V.S. ABBAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the defacto complainant in V.C.No.5/2013 of the VACB, Idukki. A private complaint was laid by the petitioner before the Enquiry Commissioner and Special Judge, Kottayam, alleging offences punishable under Section 13(1)(d) of the PC Act and Section 409 , 427 , 120(B) read with 34 of IPC , against the officers attached to Thodupuzha P.H.Division. The learned Judge referred the complaint to the DYSP of Vigilance and Anti-corruption Bureau, Thodupuzha, for preliminary enquiry. It is seen that after conducting investigation a refer report was filed by the DYSP, with a request to drop further proceedings. The Court below by Annexure-II order accepted the final report on 07.10.2016, which is under challenge in the proceeding. The crux of the contention is that, the report was accepted by the Court below without issuing notice to the petitioner herein.

(2.) Opposing the application the learned Public Prosecutor for the VACB contended that the petitioner herein had filed CMP No.1141/2017, in the above proceedings raising objections to the refer report. According to the learned Public Prosecutor, this clearly indicates that the petitioner herein was aware of the proceedings and the filing of the final report. Hence the petitioner was not justified in challenging Annexure-II order, it was contended.

(3.) There is nothing on record to show that before passing Annexure-II order the Court below had ordered notice to be served on the defacto complainant. The learned counsel for the petitioner has placed before me a copy of the order of the Court below in CMP No.1141/2017 dated 21.02.2019. That application was filed by the defacto complainant for a direction for conducting further investigation of the case. That application was dismissed by the Court below by order dated 21.02.2019. However, Para 7 of that order is relevant for the purpose of the consideration of this original petition. The learned judge had noted that on a perusal of a final order passed by the learned Predecessor of the present Judicial Officer, it was seen that notice was not issued to the defacto complainant. He was also not given an opportunity of being heard on the refer report. Since the refer report stood accepted, the Court below dismissed CMP.No.1141 of 2017, correctly, on the premise that consideration of the present application would amount to a review of the earlier order.