V.S.ACHUTHANANDAN v. STATE OF KERALA

“C.R.”S.S.SATHEESACHANDRAN, J.-------------------------------W.P.(C).NO.21529 OF 2012 (M) -----------------------------------Dated this the 6th day of December, 2012J U D G M E N TPetitioner, a former Chief Minister of the State, is presentlythe leader of Opposition in the Kerala Legislative Assembly. Hehas filed the above writ petition to quash Ext.P1 FIR registeredby the Deputy Superintendent of Police, Vigilance andAnti Corruption Bureau, Kasaragod, wherein he is proceeded asthe 1st accused with some others, for offences punishable underSection 13(1)(d) and 13(2) of the Prevention of Corruption Act,1988, for short, the 'Act' and Sections 120B, 201 and 420 of theIndian Penal Code, for short, the 'IPC'. 2. In ordering assignment of a piece of land inKasaragod District in favour of 5th accused, a relative of thepetitioner, and also further steps taken for relaxing the bar ofalienability over such land, petitioner, then, Chief Minister,abused his official position and he had entered into a conspiracy W.P.(C).NO.21529/2012 2with 5th accused, and some other public servants, including theRevenue Minister of his cabinet, to favour 5th accused violatingthe rules, and, later, after such assignment, in relaxing theconditions imposed for transfer of assigned land, to enable5th accused to reap unlawful benefits, is the case imputed. 3. A new Government assuming power after the GeneralElections in May, 2011, cancelling the assignment order of landin favour of 5th accused and also the Council decision relaxingthe bar of alienation of the land assigned to him, ordered avigilance enquiry. Ext.P1 FIR would show that the GovernmentOrder, namely, G.O(MS) No.208/2011/Rev. dated 07.06.2011,was to conduct a vigilance enquiry into the illegal means adoptedby revenue officials in the assignment of Government land inKasaragod District to Sri.T.K.Soman, an ex-service man, who isthe 5th accused, in violation of the Kerala Land AssignmentRules, 1964, and also the Council decision enabling the saidSoman to alienate the assigned land in contravention ofAssignment Rules then in force, for his pecuniary benefits.Vigilance enquiry was conducted by the Deputy Superintendent W.P.(C).NO.21529/2012 3of Police, Vigilance and Anti-Corruption Bureau, Kasaragod Unit.On the basis of preliminary enquiry and materials gatheredthereof, Ext.P1 FIR was registered against eight accused personswith the petitioner, former Chief Minister, named as the 1staccused, for offences punishable under Section 13(1)(d) and13(2) of the Act and Sections 120B, 201 and 420 of the IPC. 4. The gist of the accusation imputed, formed on the basisof preliminary enquiry, revealed by Ext.P1 FIR is thus: Petitioner, while he was the Chief Minister, exerting hisinfluence over revenue officials got an extent of 2.33 acres ofland in R.S.No.111/2 and 111/5 of Maire Village in KasaragodDistrict assigned in favour of his relative (A5), who was noteligible for assignment of Government land. Order ofassignment of land in favour of 5th accused was made with theactive involvement of two District Collectors of Kasaragod (A6and A7), both of them colluding with the petitioner (ChiefMinister), and under his direction, and, thereby, 5th accused, whowas ineligible for the land, obtained undue pecuniary gain byillegal means. Principal Secretary of the Chief Minister (A4), W.P.(C).NO.21529/2012 4and Personal Assistant of petitioner (A8) on the instructions anddirections given by the petitioner instigated the Land RevenueCommissioner and Additional Chief Secretary (Revenue) (A3) toissue favourable orders to exempt 5th accused from alienating hisland against the condition stipulated in the Kerala LandAssignment Rules, and on the basis of instructions from A4, theLand Revenue Commissioner and Additional Chief Secretary(Revenue) (A3) gave a false report to Government to grantexemption lifting the period of alienation. Since the officials inthe Revenue department were not amenable for grantingsanction for exemption in the period fixed for alienation of landassigned, petitioner in collusion with the then Revenue Minister(A2) got an agenda note prepared without the assistance ofRevenue department, and making use of the unauthorisedagenda note, in the Council meeting took a decision to waive thecondition fixing the period of alienation under the Rules inrespect of the land assigned to 5th accused. That decision wastaken as an out of agenda item. Knowing that the decision togrant exemption by the Council of Ministers was likely to beobjected by the Law and Finance Departments, before issuing W.P.(C).NO.21529/2012 5the said G.O., petitioner, Chief Minister, in collusion with theRevenue Minister (A2) issued specific orders for issue ofGovernment Order to bypass the examination of the legality andpropriety of the Council decision by the aforementioneddepartments in the Government. Later, when allegations overthe assignment of land to 5th accused and also grantingexemption from the period of bar of limitation were discussed inpublic, the Revenue Minister (A2), to escape from the clutches oflaw caused disappearance of evidence over his prior involvementand conspiracy giving direction to issue the Government Orderonly after examination of the legality of the Council decision bythe departments concerned. The accused persons acted incollusion to extend wrongful gain to 5th accused, who wasineligible to get assignment of Government land, andcorresponding wrongful loss to the Government, and, thereby, allof them have committed the offences under the Act and IPCspecified in Ext.P1 FIR, is the prosecution case. 5. Petitioner seeks quashing of Ext.P1 FIR and furtherproceedings thereof contending there was nothing illegal or W.P.(C).NO.21529/2012 6improper in the assignment of the land to 5th accused nor in anyact over the passing of cabinet decision taken to grant relaxationin the period fixed over the alienability of the land. After a newGovernment assumed office, previous cabinet decision taken bythe former Government was cancelled and a vigilance enquirywas ordered. That was done only to tarnish his image before thepublic and to wreak vengeance against him since he has beenspearheading relentlessly some corruption cases involving twomajor stakeholders in the new Government. He continuedthe prosecution of such corruption cases, one of which led toconviction and incarceration of the offender thereof, a formerMinister, and the present Government which has only awafer-thin majority has therefore dug out some issues to malignhim, and the case was framed on false allegations afterconducting a frivolous vigilance enquiry, according to thepetitioner. He has co-operated with the investigation and facedinterrogation by the investigating officer. Realising that theenquiry conducted by the present investigating officer is totallyfalse, he has filed Ext.P6 representation that the investigationshould be conducted in a fair, impartial and transparent manner W.P.(C).NO.21529/2012 7by a superior police officer not below the rank of the DirectorGeneral of Police or Additional Director General of Police. In thewrit petition, petitioner seeks quashing of Ext.P1 FIR and furtherproceedings thereto. He also seeks, in the alternative, issue of awrit of mandamus or any other writ, order or direction tocommand the 2nd respondent, Director of Vigilance, to considerhis Ext.P6 representation and pass orders thereof after hearinghim. 6. A statement has been filed on behalf of the respondentsby the Director General of Prosecution, for short, the 'DGP'.Challenging the maintainability of the petition, it is contendedthat Ext.P1 FIR is not liable to be quashed as there is clinchingevidence against the petitioner and other accused, both oral anddocumentary, to sustain the imputations over the offencesalleged against them. The Government have ordered a detailedvigilance enquiry into the corrupt illegal acts done by petitionerin collusion with some revenue officials and others, while he wasin power, for assigning an extent of 2.33 acres of Governmentland in Kasaragod District to 5th accused. That accused, an W.P.(C).NO.21529/2012 8ex-service man, is the grandson of petitioner's maternalgrandmother's sister. On vigilance enquiry conducted and alsoon the basis of evidence collected, Ext.P1 FIR was registered asthe enquiry has disclosed serious criminal misconduct,conspiracy, fraud and foul play committed by petitioner andothers resulting in substantial loss to the Government, andundue pecuniary gain to 5th accused. While the investigationcontinued, two among the accused including 5th accusedchallenged the criminal proceedings approaching this Court forquashing Ext.P1 FIR. Such challenges were turned down.Those accused have preferred appeals with Special LeavePetitions before the Apex Court, in which, Ext.R1(a) order waspassed not to take coercive steps against them in the matter.There were several stages in the commission of the offences,which commenced in 1976 when the 5th accused moved anapplication for getting assignment of Government landmeasuring 3 acres in Kasaragod Taluk. A conditionalsanctioning registry of assignment of 3 acres of land was grantedin favour of 5th accused vide Ext.R1(b) order. An assignee inwhose favour such order is made can claim right over that land W.P.(C).NO.21529/2012 9only on payment of the land value, tree value and also tax withinthe time fixed. He did not pay such value and tax. So much so,there was no legal, actual or absolute assignment of the land infavour of 5th accused. A suit involving such land questioning theorder of assignment was filed by three persons, in which, Stateand also 5th accused were defendants. Ext.R1(c) is copy of thatplaint. Since the suit was bad for want of notice under Section80 of the Code of Civil Procedure, the plaint was returned. Fifthaccused did not pay the land value of the land and, later, thatland was assigned in favour of other eligible families. Longthereafter, that is, 27 years after the above suit, at a time whenpetitioner continued as Chief Minister, 5th accused moved anapplication before the District Collector for assignment of land.He approached the petitioner and then moved the applicationbefore the District Collector. That is evident from Ext.R1(g)application submitted by him before the District Collector,wherein he made reference to the conversation which theCollector had with the Chief Minister over assignment of land inhis favour. Application was given to the Collector addressing inhis name. In view of the conspiracy hatched by the petitioner W.P.(C).NO.21529/2012 10with high level officials, the District Collector (6th accused)showing unholy haste, violating all statutory mandates andoverlooking the file notes of officials raising objections onvarious counts that alternate land asked for is not assignable,income potentiality of the 5th accused disentitled him to get suchassignment etc., assigned 2.33 acres of land in favour of5th accused and his wife. Ext.R1(q) is copy of that order. Onpayment of land value assessed, patta of the land was issued,that is, Ext.R1(r). In the statement various circumstancesinvolved over the assignment, and also law, why 5th accusedwas ineligible to get assignment of land and that theland assigned could not be treated as an alternate land towardsthe land assigned in his favour earlier in 1977 are pointed out.Assignment of 2.33 acres of land made on his subsequentapplication as an alternate land was on account of conspiracyhatched by 5th accused with petitioner, and other public servants.The aforesaid public servants have abused their official positionto provide wrongful pecuniary gain to 5th accused, and, thus,corresponding loss to the Government, is the further imputation.Adverting to various illegalities alleged to have been committed W.P.(C).NO.21529/2012 11over the assignment of land in favour of 5th accused and also hisineligibility to get such assignment, it is stated, the first stage ofthe offences was completed with the assignment of 2.33 acres ofland in favour of 5th accused and his wife. Second stage of theoffences, as per the statement proceeded with the 5th accusedmoving an application before the District Collector to exempthim from the bar of alienating the assigned land. Alienation ofassigned land is prohibited for a period of 25 years under theKerala Land Assignment Rules. Fifth accused approached thepetitioner with a representation addressed to the Minister ofRevenue seeking exemption from the bar of alienation over theassigned land. Collecting that representation, petitionersummoned the Land Revenue Commissioner, 3rd accused, andwanted him to consider the request of 5th accused. TheCommissioner expressing his helplessness, petitioner insisted forexamining the case stating that the request would be sent tohim. Application presented by 5th accused was then forwardedto the Land Revenue Commissioner by the Principal Secretary ofthe Chief Minister with an endorsement directing him toexamine the matter urgently and take necessary action without W.P.(C).NO.21529/2012 12delay. Objections were raised by the revenue officials atdifferent levels in the note files why relaxation over the bar ofalienation requested for cannot be allowed. Suppressing thenote files and objections raised by the officers of Revenue thematter was brought to the Cabinet meeting as an out of agendaand it was approved illegally. Cabinet proceedings for grantingexemption to 5th accused from the bar of alienation of assignedland were made violating the Rules covered by the Rules ofBusiness of the Government of Kerala. Over the Council decisiontaken petitioner directly issued a Government Order in favour of5th accused. Petitioner in doing so has abused his officialposition to favour 5th accused and, therefore, he is liable to beproceeded with for the offences imputed. Advertence is alsomade to Orders passed by this court in the applications moved bytwo other accused declining their request for quashing the FIR.Observations of this court in such Order that 'at this stage it isnot proper to interfere with the investigation of the crime' ispressed upon in the statement to resist the challenge raised bythe petitioner, another accused in the crime. W.P.(C).NO.21529/2012 137. Learned senior counsel Sri.K.Gopalakrishna Kurupappearing for petitioner referring to the allegations imputed,contended that the implication of petitioner as 1st accused in thecrime splitting up the episode over the assignment of land infavour of 5th accused into two stages is totally bereft of any meritor value. Ext.P1 FIR is absurd and inherently improbable andthere is no ground whatsoever to impute any corruption orcommission of any other penal offences against the petitioner, aformer Chief Minister of the State, in respect of the assignmentof land in favour of 5th accused and, later, over the request madeby the assignee to seek lifting of the bar of alienability over theassigned land, is the submission of the counsel. Assignment ofland in favour of 5th accused has been made in accordance withthe Rules on the recommendation of the Land AssignmentCommittee, and so far as the first stage of the crime nothing isthere other than a reference made in the application of 5thaccused of a conversation of the petitioner with the then DistrictCollector (A6). Even if that is accepted as true, it will notconstitute any offence, leave alone any offence of corruptionagainst the petitioner, is the submission of the senior counsel. W.P.(C).NO.21529/2012 14So far as the assignment of land made in favour of 5th accused,and in case there was corruption thereto, that alone, in the givenfacts of the case, could be treated as an offence committed, thereis absolutely no material to connect the petitioner with suchoffence, submits the counsel. So far as the second stage i.e.,request made by 5th accused for lifting the period of bar ofalienability over the assigned land and steps taken theretoculminating in a cabinet decision, it is submitted that decisionhas not matured into a Government Order and not implemented,and, further, such decision was revoked by the new Government,even cancelling the assignment of land made earlier in favour of5th accused. So, the second stage of the crime alleged at bestconstitutes an attempt to commit an offence, but not an offenceas imputed in Ext.P1 FIR. So far as the imputations madeagainst the petitioner, former Chief Minister, with reference toone or other circumstance surrounding the steps taken over therequest made by 5th accused in taking a cabinet decision forlifting the bar of alienability over the assigned land, learnedsenior counsel contended that the allegations thereto areinvented to tarnish the image of the petitioner and damnify his W.P.(C).NO.21529/2012 15reputation before the general public. Allegations raised againstthe petitioner to implicate him as the 1st accused in the crimewith respect to the cabinet decision taken, which has notmatured into a Government Order, imputing some circumstanceshow the request of 5th accused was proceeded with, areincapable of even showing prima facie dishonest intention of thepetitioner, which is a must to proceed against him for the offenceunder the Prevention of Corruption Act, leave apart the otherpenal offences, is the submission of the senior counsel. Politicalanimosity and more so, for the reason that the petitioner hasbeen fighting against corruption, particularly, the misdeeds ofsome persons who are now at the helm of affairs of theGovernment, is the real reason in registering Ext.P1 FIRimplicating petitioner as the 1st accused and imputing corruptionagainst him, is the submission of the senior counsel urging forquashing that FIR and further proceedings thereof as an abuseof the process of court.8. Resisting the challenges against Ext.P1 FIR andadverting to various circumstances surrounding the assignment W.P.(C).NO.21529/2012 16of land in favour of 5th accused, a relative of the petitioner,Sri.Asaf Ali, learned DGP contended that there was directinvolvement of petitioner in the assignment of land to 5thaccused and his wife, both of whom were ineligible to getassignment of Government land. Later in passing the cabinetdecision, after unsuccessfully exerting pressure on the revenueofficials to violate the statutory rules to lift the bar of alienabilityover the assigned land, petitioner played the pivotal role andthat clearly demonstrate that he has abused his official positionas a public servant to extend wrongful gain to 5th accused – hisrelative - and corresponding loss to the Government. Ext.P1 FIRis not assailable on any ground whatsoever, and a detailed probeof the case is called for. Statements recorded from the 3rdaccused, Land Revenue Commissioner before the magistrate,and also file noting made at different stages by senior officersobjecting to the lifting of bar over the alienability of the land areadverted to contending that the petitioner abused his officialposition to favour the 5th accused to lift the bar of alienabilityover the land assigned to him. It is a clear case of nepotism andcorruption which demand a full-fledged investigation. Banking W.P.(C).NO.21529/2012 17upon the observations made in Ext.R1, orders passed by thiscourt turning down the applications moved by two among theaccused for quashing Ext.P1 FIR against them, that 'it is notproper for this court to interfere with the investigation at thisstage' learned DGP urged that in the case of the petitioner aswell his request for quashing the FIR has to be turned down.The investigation is complete, and the final report is ready forbeing presented before the court is the further submission madeto contend that at this stage challenge canvassed against Ext.P1FIR by the petitioner is not to be entertained as it is open for himto canvass whatever challenges available before the court oncethe report is filed and further steps are taken thereof. The writpetition, in the aforesaid circumstances, is liable to be dismissed,is the submission of the learned DGP.9. After both sides were heard and writ petition taken upfor orders, a petition supported by an affidavit of investigatingofficer was filed by DGP, seeking consideration of themaintainability of the writ petition as a preliminary objection andpassing of orders thereof. A memo was also filed to state that W.P.(C).NO.21529/2012 18the investigation of the crime has been completed and theinvestigating agency is in the process of filing final report underSection 173(2) of the Code against five accused personsincluding the petitioner as one among them. Request was alsomade by the DGP for making further submissions in the matter,more particularly on the question of maintainability filing amemo. 10. The case was thereupon posted for being spoken to,and both sides were again heard. Challenge over themaintainability of the writ petition was canvassed on the premisethat against Ext.R1 order passed by this court dismissing theapplications of two accused in Ext.P1 FIR appeals preferred bythem with special leave petition are pending before the SupremeCourt, and as such, the present writ petition of the petitioner,another accused, cannot be entertained. Inviolable fundamentalrights guaranteed and available to petitioner, insulated under theConstitution, to challenge Ext.P1 FIR, if he has justifiable groundsto do so, and that not being whittled down or dependent uponthe turning down of challenge canvassed by any other accused, W.P.(C).NO.21529/2012 19or continuation of proceedings before the Apex Court by them,pointed out, with the empowerment of this court under theConstitution to examine such challenge so long as there is nointerdiction from the Apex Court from doing so, challengecanvassed over the maintainability, which was not urgedpreviously, was not pursued by the DGP. 11. After the case was again taken up for disposal, later, amemo was filed seeking permission to produce the case diary formy perusal. Taking note of that memo also, with reference to theissues projected for consideration in the writ petition, I haveformed the opinion that perusal of the case diary is not only notto be called for, but has to be avoided in examining the challengeover Ext.P1 FIR.12. Learned senior counsel for the petitioner and also theDGP have relied on a good number of judicial pronouncementstouching upon the exercise of extraordinary jurisdictionconferred on this court under the Constitution in examiningchallenge raised for quashing of an FIR in criminal proceedings, W.P.(C).NO.21529/2012 20and under what circumstance the FIR could be quashed. Nodoubt, as a matter of course, none can seek quashing of an FIR,and any challenge thereto can be entertained and allowed only inexceptional cases where justifiable grounds are shown thatcontinuation of the proceedings on such FIR is an abuse ofprocess of the court or necessary to meet the ends of justice. 13. The Apex Court in State of Haryana and others v.Ch. Bhajan Lal and others (AIR 1992 SC 604) after takinginto consideration the relevant provisions of the Code ofCriminal Procedure, for short, the 'Code', and also principles oflaw enunciated in a series of judicial pronouncements renderedby that court over the exercise of the extraordinary power underArticle 226 or the inherent powers under Section 482 of theCode gave some guidelines under what circumstances suchpower could be exercised either to prevent abuse of process ofthe Court or otherwise to secure the ends of justice in thequashing of FIR or complaint. Cautioning that such guidelinesare not exhaustive and applicable to all situations and it is notpossible to lay down any precise, clearly defined and sufficiently W.P.(C).NO.21529/2012 21channelised inflexible guidelines, some situations, as hereunder,have been enumerated, when exercise of such power could bemade:“1. Where the allegations made in the FirstInformation Report or the complaint, even if theyare taken at their face value and accepted in theirentirety do not prima facie constitute any offence ormake out a case against the accused. 2. Where the allegations in the FirstInformation Report and other materials, if any,accompanying the F.I.R. do not disclose a cognizableoffence, justifying an investigation by police officersunder Section 156(1) of the Code except under anorder of a Magistrate within the purview of Section155(2) of the Code.3. Where the uncontroverted allegationsmade in the FIR or complaint and the evidencecollected in support of the same do not disclose thecommission of any offence and make out a caseagainst the accused.4. Where, the allegations in the F.I.R. do notconstitute a cognizable offence but constitute only anon-cognizable offence, no investigation ispermitted by a police officer without an order of aMagistrate as contemplated under Section 155(2) ofthe Code.5. Where the allegations made in the FIR orcomplaint are so absurd and inherently improbableon the basis of which no prudent person can everreach a just conclusion that there is sufficientground for proceeding against the accused.6. Where there is an express legal barengrafted in any of the provisions of the Code or theconcerned Act (under which a criminal proceeding isinstituted) to the institution and continuance of theproceedings and/or where there is a specific W.P.(C).NO.21529/2012 22provision in the Code or the concerned Act,providing efficacious redress for the grievance of theaggrieved party.7. Where a criminal proceeding is manifestlyattended with mala fide and/or where theproceeding is maliciously instituted with an ulteriormotive for wreaking vengeance on the accused andwith a view to spite him due to private and personalgrudge.”The Apex Court in the aforesaid decision has also struck anote of caution that the power of quashing a criminal proceedingshould be exercised sparingly and with circumspection and thattoo in the rarest of rare cases. An enquiry over the reliability orgenuineness or otherwise of the allegations made in the FIR orcomplaint should not be resorted to is also pointed out making itemphatically clear that the extraordinary or inherent powers donot confer an arbitrary jurisdiction on the court to act accordingto its whim and caprice. 14. Where a criminal proceeding is sought to be quashedat the initial stages, the essential question to be looked into iswhether the uncontroverted allegations made prima facieestablish an offence. If there is any special features present in a W.P.(C).NO.21529/2012 23particular case, that also have to be looked into by the court toconsider whether it is expedient and in the interests of justice topermit prosecution to continue. Such special features candefinitely be taken into account by the court if present in aparticular case to examine whether the prosecution has beenlaunched with any oblique purpose. In case the court forms anopinion on the features presented in the case that the chances ofconviction are bleak and no useful purpose is likely to beachieved by allowing the criminal prosecution to continue, it mayquash the proceedings at a preliminary stage. 15. What is the gravamen or foundation of the caseproceeded against the petitioner, 1st accused in the FIR,necessarily has to be examined when a challenge is raised thatthe registration of the crime is an abuse of process of court andit is liable to be quashed in exercise of the extraordinary powerof the court. Going through Ext.P1 FIR and also the statementfiled on behalf of the respondents by the DGP, the case set forthto launch criminal proceedings against the petitioner has twodifferent stages, the first one commencing from an application W.P.(C).NO.21529/2012 24moved by 5th accused, stated to be a relative of petitioner, forassignment of Government land, as an ex-service man, in 1976.Orders were then passed for assignment of three acres of land to5th accused, but there was a suit challenging that assignment.That suit was found not maintainable for want of notice underSection 80 of the Code and the plaint thereof was returned.Though some arguments were projected before me that therewas no assignment of land in favour of 5th accused but only anorder of registry of assignment, those aspects have littlesignificance in considering the challenge against the criminalproceedings under Ext.P1 FIR against the petitioner.Prosecution has no case that the petitioner had any role at thatpoint of time in getting assignment of land by 5th accused.Whatever be the illegalities connected with such assignment,even assuming that 5th accused was culpable for such illegalitiesin getting orders of assignment of land, or such assignment wasmade in violation of any Assignment Rules, that cannot in anyway be pointed out to raise any imputation against petitioner,who, concededly, had no role in the assignment of land orderedin favour of 5th accused in 1977. Whatever be the case projected W.P.(C).NO.21529/2012 25in the statement filed before this Court to impeach theassignment of land in 1977 in favour of 5th accused, Ext.P1 FIRdoes not make out any such case other than a casual referencethat verification of the assignment file in 1976 showed that thegenuineness of the claim of the assignee was 'suspicious'. In thesuit referred to above, wherein a challenge was made against theassignment made in favour of 5th accused, the Government havefiled Ext.P3 written statement. Resisting the challenge againstthe assignment, in Ext.P3 written statement, it was contendedthat the assignment has become final and the assignee has beenput in possession of the land. Whatever that be, and alsowhatever be the imputations against 5th accused regarding hisineligibility to claim government land on assignment, and actsillegally done by him to get such assignment in 1976 in violationof the Rules, none of his acts even if he is shown culpable for anyoffence, can be canvassed to rope in petitioner as a co-accusedwith him alleging that both are related. Petitioner is a publicfigure and any aspersion over his character should be decidedwith reference to his acts or omissions and not on thecontumacious conduct of any other person even if such person W.P.(C).NO.21529/2012 26happens to be his relative. Fifth accused had done some illegalacts with reference to assignment of land in his favour in 1976and he was ineligible to get such land, even if that be so, cannotin the least be canvassed to connect petitioner for the offencesimputed under Ext.P1 FIR. 16. Where none of the acts of 5th accused in relation toassignment of land in his favour in 1977 can be the basis for anyaccusation against the petitioner, with respect to the second partof the first stage of the offence, if we go by the statement filedbefore this court on behalf of the respondents and also Ext.P1FIR, imputations against the petitioner to connect him with 5thaccused is founded on the request made by that accused for analternate site before the District Collector. In his application toDistrict Collector, 5th accused has referred to a conversationwhich 1st accused, who then was the Chief Minister, had with theCollector over his request for an alternate site in lieu of the landassigned in his favour in 1977. At this juncture, it has to bepointed out so far as the first stage of the crime commencingfrom assignment of land in 1977 to 5th accused till the passing of W.P.(C).NO.21529/2012 27orders assigning an alternate site to him, one and only materialto connect petitioner proceeded as 1st accused in the FIR is theabove statement made in the application of 5th accused to theDistrict Collector. Copy of the application filed by 5th accused tothe District Collector has been produced as Ext.R1(g) with thestatement filed on behalf of the respondents. His applicationwith some accompaniments addressing the District Collector“Respected Sir” begins thus:“With reference to the conversation betweenyou and the Chief Minister of Kerala regardingassignment land in respect of T.K.Soman.”Then reference is made to number of documents produced. Theaforesaid statement made by 5th accused, that alone, is the basis,and in fact the foundation, to impute that petitioner has abusedhis position as Chief Minister for securing an alternate site to 5thaccused, which is alleged to have been done overlooking andviolating Assignment Rules and also the ineligibility of 5thaccused to get such land. It is also to be pointed out so far as thefirst stage of the crime alone, comprising two parts, theprosecution has a case that the offences imputed are completed. W.P.(C).NO.21529/2012 28It is conceded in the second stage of the crime, that is, relatingto steps taken for waiving the bar of alienability over theassigned land, the offences have not been completed and there isonly attempt to commit them. I have already pointed out so faras the first part of first stage of crime no offence nor even anyallegation could be pointed out or raised against the petitioner.So much so, the significant question is even assuming thatcertain irregularities or illegalities and culpable criminal actshave been done by revenue officials including the DistrictCollector (A6) in providing alternate site to 5th accused, solely onthe basis of the aforesaid statement in the application of 5thaccused, that alone, referring to a conversation between thepetitioner, then Chief Minister and the District Collector, can thepetitioner be imputed of having committed any criminal offence,leave alone, any commission of corruption - abusing his positionas a public servant. Whether it be the Chief Minister or Ministerof State, they can function only through the administrativemachinery, and in the course of discharge of their functions, theyare bound to give one or other instruction or order to theofficials in the State under their control. If at all any instruction W.P.(C).NO.21529/2012 29or order given by the Chief Minister or Minister to an officialcannot be implemented for one or other reason, but, it has beengiven effect to overlooking the irregularity or illegality thereof,for that reason alone, without anything more to connect theChief Minister or Minister, as the case may be, can he beprosecuted. Statement made by the applicant in Ext.R1(g), if itis taken as sufficient to prosecute a Chief Minister, then, noChief Minister can discharge his functions. He will be madeanswerable for culpable acts done by other persons though hehas no role whatsoever in the commission of such acts. But forthe conversation which the Chief Minister is alleged to have hadwith the District Collector referred to in Ext.R1(g), alternate sitein lieu of the land initially assigned in 1977 would not have beenmade to 5th accused and various illegalities connected theretowould not have been perpetrated by revenue officials includingthe District Collector, was the tenor of the argument canvassedby the DGP before me to impress upon that the petitioner, thenChief Minister was culpable with the other accused in thecommission of the offences relating to the grant of alternate siteto 5th accused. Such hypothesis and inferences drawn are quite W.P.(C).NO.21529/2012 30out of place and none can for a moment ignore that petitionerwas then the Chief Minister of the State. If a Chief Ministercould be roped in on a statement made by an applicant in hisapplication referring to his conversation with a Governmentofficial, then who else holding responsible position in theGovernment could be protected of or insulated from being calledupon to face vexatious prosecution in cases where illegalitieshave been perpetrated by the acts of one or other officials in theproceedings, in which, some reference as indicated is made.That is too dangerous, and no functionary can then dischargefearlessly his duties and responsibilities as he could be hauled upto face prosecution on a mere statement of his name beingreferred to in one or other application put by a third party, whichlater ensued in commission of illegal act liable to be proceededwith. The gamut of allegations raised over the first stage of thecrime referring to the illegalities and irregularities connectedwith the issue of alternate site to 5th accused cannot bepinpointed against the petitioner, then Chief Minister of theState, banking upon the statement referred to above in theapplication of the 5th accused to the District Collector, the 6th W.P.(C).NO.21529/2012 31accused. Looking into Ext.R1(g) also, it is noticed theapplication given by 5th accused is dated 09.03.2007 and theDistrict Collector made an endorsement to the Deputy Collector(R.R) “Please pay personal attention” on 12.03.2007. TheDeputy Collector as per his endorsement forwarded copy to theTahasildar on 27.03.2007 for urgent report. The despatch sealwould show that it was sent from the Collectorate on 30.03.2007.The aforesaid endorsements seen on the application also indicatewhatever be the alleged conversation which the Chief Ministerhad with the District Collector referred to in the application, theapplication moved at snail's pace. I have just pointed out theabove circumstance only to show that no significance whatsoevercould be attached to the statement made by 5th accused inExt.R1(g) to connect the petitioner, then Chief Minister withwhatever illegalities that are alleged to have been perpetrated inrelation to the alternate site granted in favour of 5th accused. Ifany such illegalities has been perpetrated by revenue officialsand 5th accused, no doubt, they will be liable to be proceededagainst for the offences committed thereof, but to proceedagainst petitioner solely on the basis of the aforesaid statement W.P.(C).NO.21529/2012 32in Ext.R1(g) is obnoxious and has to be deprecated. 17. In the second stage of crime, concededly, there wasonly attempt to commit the offences. Case of the prosecution isbased on various steps taken on the request made by 5th accusedfor lifting the bar of alienation over the assigned land. When hemoved such an application, addressed to the Revenue Minister,the Principal Secretary to Chief Minister, 4th accused, issuedinstructions to the Commissioner of Land Revenue, 3rd accused,to examine the matter urgently and take necessary actionwithout delay and that petition with enclosures was forwarded tohim. Though the officers of Land Revenue put up notes in thefile objecting to the waiver sought for, Commissioner of LandRevenue (A3) issued specific instructions to send a reportconforming with the instructions given by 4th accused, PrincipalSecretary to Chief Minister, and later he also sent a reportstriking of the objectionable notes made by his subordinates tomake out a case that the Government could pass orders forwaiving the bar over alienation as a special case. When suchreport was forwarded to the Principal Secretary to the Chief W.P.(C).NO.21529/2012 33Minister (A4), she gave an instruction that the Chief Ministerdesired to meet the Commissioner of Land Revenue. Withoutamendment of the Assignment Rules, no such waiver can bemade, was the stand consistently taken by the revenue officials.Overlooking that objection request for relaxation of the period ofalienation over the assigned land by 5th accused was placed as anout of agenda item in the Cabinet meeting and it was approvedby the Council of Ministers. Based on the Council decision,petitioner issued orders for relaxation of the period of alienationin favour of 5th accused, his brother, is the case alleged that hehas abused his official position as Chief Minister to favour 5thaccused. The Minister of Revenue, the Principal Secretary toChief Minister, the Land Revenue Commissioner, and PersonalAssistant of petitioner all of them were parties to the aforesaidillegal acts done to favour 5th accused, is the imputation tocontend that attempts were made by them along with petitionerto commit the offences under the Act. Since the newGovernment soon after assuming office cancelled the decision ofthe Council of Ministers and no notification was issued by theGovernment to waive the bar of alienation over assigned land W.P.(C).NO.21529/2012 34and even the assignment of alternate site in favour of the 5thaccused was also cancelled, and the Council decision not havingbeen given effect to, offences as such have not been committedbut only attempt thereto made, punishable under Section 15 ofthe Act with substantive offence of that Act under Section 13(1)(d) of that Act, is the case now canvassed to proceed against thepetitioner. Ext.P1 FIR, it is to be stated, is founded on the basisthat the offences have been committed by the accused, and not acase of only an attempt made by them to commit the offences. Inthe statement filed on behalf of the respondents, detailedreference to the file noting made by various officials of the LandRevenue Department objecting to the waiver in lifting the bar ofalienation, requested for by 5th accused, and how the matter wasplaced as an out of agenda item in the meeting of the Council ofMinisters are narrated. At the time of argument, learned DGPhas also adverted to the statement given by the Commissioner(Land Revenue), 3rd accused, before the magistrate over hismeeting with the Chief Minister on his summoning to his officialresidence by the Principal Secretary to the Chief Minister.Petitioner (Chief Minister) requested him to examine the matter W.P.(C).NO.21529/2012 35and see whether anything could be done over the request madefor relaxation in the bar of alienation fixed under the AssignmentRules, was his statement. Statement purported to have beenrecorded from the Principal Secretary (Revenue), in which, shestated of her summoning by the Minister of Revenue, the 2ndaccused, and the request made by him stating that the ChiefMinister is interested in the matter of relaxing the bar ofalienation requested by 5th accused, has also been banked uponto contend that petitioner has shown undue favoritism andnepotism in placing the request of 5th accused for relaxation inthe bar of alienation as an out of agenda item in the cabinetmeeting and taking a Council decision allowing such request. 18. On the allegations raised over the attempts made bypetitioner in committing of an offence under the Act, toprosecute him thereof, first of all the offence has to be noted.The offence imputed under Ext.P1 FIR falls under Section 13(1)(d) punishable under 13(2) of the Act. Section 13(1)(d) of the Act reads thus:13. Criminal misconduct by a public servant- W.P.(C).NO.21529/2012 36(1) A public servant is said to commit the offence ofcriminal misconduct,-(a)........................................................(b)........................................................(c).......................................................(d)If he,-(i)by corrupt or illegal means, obtainsfor himself or for any other person anyvaluable thing or pecuniary advantage; or(ii)by abusing his position as a publicservant, obtains for any person anyvaluable thing or pecuniary advantage; or(iii)while holding office as a publicservant, obtains for any person anyvaluable thing or pecuniary advantagewithout any public interest; or(e)..............................The aforesaid offence, if committed, is punishable under Section13(2) of the Act with imprisonment for a term which shall not beless than one year but which may extend to seven years and shallalso be liable to fine. If there is only an attempt to commit theoffence under clause (c) or (d) of sub section (1) of Section 13 ofthe Act, punishment is covered by Section 15 of the Act, whichprovides imprisonment for a term which may extend to threeyears and with fine. Whether the offence has been committed or W.P.(C).NO.21529/2012 37an attempt to commit such offence alone is made, in both cases,the essential ingredient to show corruption by a public servantabusing his position as such has to be founded on hisdishonoured intention in committing the culpable act or attemptto do such act. Special features presented in the case disclosedby the facts cannot at all be overlooked in examining whetherpetitioner, who then was the Chief Minister, had committed anyact with dishonoured intention to prosecute him by registering acrime under Ext.P1 FIR. First, it has to be noted that thematerial allegation is that he has favoured his brother (A5) whowas ineligible to get Government land. Ext.P1 FIR, which isbased on a preliminary enquiry concludes that A5 is the brotherof A1, the former Chief Minister, as disclosed from a report ofTahsildar of Ambalapuzha. In the statement filed before thiscourt relationship of A5 with petitioner is described stating thathe is the grandson of petitioner's maternal grandmother's sister.May be, in the maternal line, petitioner has a relationship withA5. But if we go by the term 'relative' under the Law Lexiconand Rules of Succession, the allegation that A5 is a brother ofpetitioner (A1) and how the entire case of corruption based on W.P.(C).NO.21529/2012 38the relationship with A5 is sought to be projected is toofar-fetched. In examining the challenges against Ext.P1 FIR, theaforesaid aspect may not be decisive, but, however when aformer Chief Minister is sought to be prosecuted alleging that hehad abused his official position to favour another imputing suchperson as his brother, when the relationship between the two,which comes under the cognate line of a great predecessorcannot be brushed aside as innocuous. Nothing more need bestated about the relationship of brethren between petitioner andA5 other than stating that it is one of distant kindred.19. Attempt to commit the offence of corruption imputedagainst the petitioner with the acts purported to have been doneby him for lifting the bar of alienability over the assigned land of5th accused, abusing his position as the Chief Minister, a publicservant, has now to be looked into. Whether he did any actthereof with dishonest intention to extend any benefit to 5thaccused illegally and flouting the law, and, that calls for a lookinto the backdrop of the whole case. Whatever be the illegalitiesimputed over the assignment of land to 5th accused in 1977 on a W.P.(C).NO.21529/2012 39claim raised by him as an ex-service man, the fact remains thatassignment of 3 acres of land was made in his favour and thatwas recognised by the Government even when a challenge wasraised thereto in a suit filed by third parties. Whatever be thereason for his not getting exclusive title and possession oversuch assigned land, on the request made by him at a later stagein 2007 seeking an alternate site in respect of the land assignedearlier he was given assignment of 2.33 acres of land in 2010. Ihave already pointed out that the imputations and allegationsmade to connect the petitioner with respect to the assignment ofsuch land as an alternate site even assuming that suchassignment was illegal, solely based on a statement in theapplication of 5th accused to the District Collector, has no merit,and so far as the first stage of the episode relating to assignmentand the offences imputed thereof petitioner never could beimputed of abusing his official position or committing any act ofcorruption. Fifth accused, after getting assignment of analternate site, approached the petitioner and then he gave someinstructions to the officials, is the case. Even if that be so, doesit postulate any act of corruption - abusing his position as a W.P.(C).NO.21529/2012 40public servant – Chief Minister of the State. Subsequentassignment of land in favour of 5th accused if it was inrecognition of the previous assignment made to him, then, therequest made by him for lifting the period of alienability over theland, at least, according to him, must be reckoned with theprevious order of assignment. In such a case if he had made arequest and any instruction was given by the petitioner toconsider such request to the officials, it can never be stated thatsuch instructions were given by petitioner, then Chief Minister,with a dishonest intention to assist 5th accused abusing hisposition as a public servant. In fact, after looking into theprovisions covered by the Land Assignment Act and Rulesthereof, I find, the whole exercise of conducting a vigilanceenquiry with respect to the acts done by the petitioner in relationto lifting of the bar of alienability over the land assigned infavour of 5th accused is totally misconceived. Nobody has got acase that 2.33 acres of land allotted to 5th accused in 2010 which,according to him, was an alternate site for the previous assignedland was under his occupation or under the occupation of anyother person. He has been issued a patta of the land is also not W.P.(C).NO.21529/2012 41disputed. The acts done by the accused, public servants, inlifting the bar of alienability over the assigned land is imputed asa violation of Rule 8(1)(a) of the Kerala Land Assignment Rules,1964, as amended under SRO.No.59/2009. Relevant provisionunder sub rule (1) of Rule 8 of the Land Assignment Rules onthe bar of alienability over assigned land is thus:8. Conditions of assignment on registry:-[(1) Lands, granted on registry shall be heritable [butnot alienable for a period of twenty-five years from thedate of registry]:](rest not required)Fifth accused claimed for an alternate site on the basis ofprevious assignment of land in his favour in 1977 and he wasgranted land assigned on registry in 2010, recognising that claimcannot be lost sight of in noting the request made by him andalso instructions, if any, given by petitioner for its consideration,to the officials, for examining whether he had any dishonestintention in doing so. Much has been stated on the file notingput by the officials of the Revenue department and also placingof the item as an out of agenda in the Council meeting and the W.P.(C).NO.21529/2012 42decision taken thereof for lifting the bar of alienability over theland assigned to 5th accused. Empowerment of the Governmentto dispense with any provision covered by the Rules in theassignment of the land cannot be doubted for a moment. Therevenue officials have made some objections in lifting of bar ofalienability over the assigned land and that was overlooked bythe Council of Ministers is of little merit when the objections ofthe revenue officials could not be considered as binding on theCouncil of Ministers. Viewed in that perspective, and more so, inthe backdrop that 5th accused was assigned a land in 1977, andlater, on his request for alternate site in lieu of the previous landassigned, an alternate site was given, and on his request, someinstructions were given by the petitioner Chief Minister, even ifthat be so, to the revenue officials, to consider the lifting of barof alienability over his assigned land and also taking a decisionto do so in the Council meeting, by no stretch of imagination,could be considered as acts done with dishonest intentionamounting to corrupt acts abusing his position as public servant.20. To make a person criminally accountable, it must be W.P.(C).NO.21529/2012 43proved that the act imputed against him, which is forbidden bylaw, has been caused not only by his conduct and that theconduct was accompanied by a legally blameworthy attitude ofmind. Where a public servant is proceeded for having abused hisposition and misconducted himself either for his own gain or forsome other person the two components of the offence, a physicalelement and a mental element, usually called actus reus andmens rea respectively must be shown to exist. In the presentcase none of the acts imputed against the petitioner in relationto the steps which preceded the Council decision, and later,with respect to the relaxation over the alienability of the landassigned to 5th accused, which, even according to theprosecuting agency, amounted only an attempt to commit theoffence imputed, would indicate that they have been done with adishonest intention or guilty mind. In the backdrop that a landwas assigned in favour of 5th accused in 1977, upholding hisclaim as an ex-service man and later an alternate site in lieu wasgiven to him on his request, when he had approached thepetitioner (Chief Minister) in relaxing the bar of alienability ofsuch land, instructions, if any, given by petitioner, presumably W.P.(C).NO.21529/2012 44taking a view, that the land assigned to him was an alternate sitefor a previous land much earlier, it is too hazardous to hold thatsuch instructions were given with any dishonest intention tofavour 5th accused, that too, abusing his official position as apublic servant - Chief Minister.21. The allegations set out to proceed against thepetitioner as if he had committed the offence of corruption andthus liable to be prosecuted for doing so, on the facts andcircumstances presented are so preposterous and unworthy ofany merit. Chances are so bleak in his prosecution for suchoffences ending in his conviction. When that be so, continuationof the criminal proceedings against him on the crime registeredunder Ext.P1 FIR cannot be permitted to, and it calls fortermination to advance the ends of justice.22. Some of the features presented in the case are toodisturbing and in fact give enough room to generate suspicionthat the machinery of vigilance is misused and abused to silencea political opponent framing a case against him on false and W.P.(C).NO.21529/2012 45frivolous allegations unworthy of any merit. I have alreadypointed out with respect to the commission of alleged actsimputing corruption by the petitioner that the edifice of the caseagainst him is built upon a statement, that alone, in theapplication of the 5th accused to the District Collector that thepetitioner had a conversation with the District Collector over theassignment of an alternate site to that accused. A ChiefMinister approached with a grievance by any of his subjects,whether he be his relative or otherwise, if he puts in a word to aGovernment official to look into the matter, or even assuming theworst instructed that it has to be attended favourably, that byitself does not indicate that he had a guilty mind for perpetratinga corrupt act and thus liable to be prosecuted for the offencethereof. If that is the prosecution case over the commission ofthe offence of corruption by petitioner, which is devoid of anymerit, what is imputed as the next stage of offence over theattempts made by the petitioner to commit corrupt acts withrespect to orders passed for relaxing the period of alienabilityover the assigned land giving instructions to the Land RevenueCommissioner and later taking the Council decision, even if they W.P.(C).NO.21529/2012 46are assumed to be true, they do not at all indicate that he haddone any act thereof with a dishonest intention to favour 5thaccused. I have already pointed out that the relationshipimputed of, between petitioner and 5th accused as brothers issilly. No doubt, that was so put forth to cement the foundationfor the alleged criminal acts of petitioner as favours done to 5thaccused, acts constituting nepotism, abusing his position as apublic servant. Strangely where the FIR has been registeredafter a preliminary enquiry, the police officer, who conductedsuch enquiry refers only to a report of the Tahsildar to impute inthe FIR that 5th accused is the brother of petitioner. Statementof the respondents filed by the DGP the relationship of 5thaccused with petitioner is shown as grandson of petitioner'smaternal grandmother's sister. To a Chief Minister of the State,all his subjects, at least below his age, can be considered andtreated as his brothers and sisters. If that be so, 5th accused canbe a brother of the petitioner, but otherwise he is a person withwhom he is having a too remote and distant relationship.Foundation of the case against the petitioner imputing that hehas done illegal acts of favoritism to his brother 5th accused, to W.P.(C).NO.21529/2012 47project imputations of corruption against the petitioner, is tooshaky and not worthy enough even to be taken note of as anincriminating circumstance.23. How the investigation after registering of Ext.P1 FIRproceeded, which I would not have referred to but for the reasonthat some of the materials collected thereof had been pressedinto service to resist the challenges in the writ petition, lendenough support to the case advanced by the petitioner that thecrime has been registered against him with oblique motives.Investigating officer, it seems, either does not know therudimentary principles of criminal investigation or has scantrespect to the fundamental principles to be adhered to inconducting investigation of a crime, that too, for grave offencesunder the Act. Petitioner, a former Chief Minister of the State isbeing proceeded alleging abuse of the position held by him incommitting acts of corruption. Any investigation in a crimeregistered thereof should be shown to be fair, just andreasonable. One among the accused (A3) Land RevenueCommissioner had been produced before the magistrate and his W.P.(C).NO.21529/2012 48statement was got recorded. Learned DGP has submitted beforeme that it was not recording of a confession of an accused butonly statement as a witness under Section 164 of the Code. Anaccused person has an inviolable right that he should not becompelled to be a witness against himself as guaranteed andinsulated under Article 20 (3) of the Constitution of India.Prosecution has no case that A3 has confessed of the criminalacts imputed against him and other co-accused and he has beenaccepted as an approver in the case. If at all his statement is tobe treated as a confession, which, it is seen, has been so treatedby the magistrate, who recorded his statement as reflected bythe endorsement made by him in Ext.R1(v), then suchconfession could be made use of against a co-accused only if theaccused who had confessed the guilt is jointly tried with theother accused. After recording such statement from A3 throughmagistrate, during the course of investigation, it is seen thataccused (A3) and two other accused, all of them seniorGovernment officials, who are imputed to have conspired withthe petitioner in doing the illegal acts alleged, have been omittedfrom the array of the accused. If any senior Government official W.P.(C).NO.21529/2012 49committed any criminal misconduct, whether it be on theinstructions given by the Chief Minister or any Minister,normally, he cannot be relieved but is liable to be prosecuted.What is more strange is after setting forth a case that somesenior Government officials named in Ext.P1 FIR conspired withpetitioner and another Minister, and also aided and assistedthem in doing of illegal acts of corruption imputed, at the finalstage, after investigation, they have been left out from the arrayof the accused. Statement recorded from one of them withrespect to the acts alleged to have been done by him, whichwould show that the spine of such officer is more flexible andelastic than of rubber, and that too totally inadmissible andunacceptable in evidence, has been pressed into to inculpate thepetitioner, a former Chief Minister of the State, to sustain theimputations made against him of having committed acts ofcorruption. 24. Petitioner has sought for an alternate relief over thenon-consideration of Ext.P6 representation sent by him to the 2ndrespondent Director of Vigilance and Anti Corruption Bureau W.P.(C).NO.21529/2012 50complaining that investigation done by the present investigatingofficer, 3rd respondent, is unfair. No doubt, the accused has noright to canvass who should conduct investigation in the crimeproceeded against him. However, where he has got a grievancethat the investigation is conducted in a most unfair manner, hisright to approach a superior police officer to look into thatmatter moving a representation cannot be considered assomething which he could not canvass of or seek redressal.Ext.R1(z)(6) is the reply given by the Director of Vigilance tonegative his representation. That reply dated 3.10.2012 is longafter filing of this writ petition. Petitioner has not pointed outany specific instance of animosity or illwill against the presentinvestigating officer in continuing with the investigation of thecase and the report received from the Superintendent of Police,VACB, Northern Range, Kozhikode revealed that the presentinvestigating officer is conducting the investigation in a fair andreasonable manner without fear or favour, are the reasons statedfor rejecting Ext.P6 representation. Director of Vigilance is notan ornamental or glorified post for accomodating a senior policeofficer of the State. Where a former Chief Minister of the State, W.P.(C).NO.21529/2012 51who continues as the Leader of Opposition, when he is beingproceeded with as an accused in a case involving corruption,presents a petition before a higher police official, pointing outseveral circumstances, as seen from Ext.P6, why theinvestigation is not proceeding on correct lines as mandated bylaw, if that is dealt with in the manner indicated as underExt.R(z)(6), then it only shows a sad state of affairs how theVigilance wing in the State is functioning. Fairness ininvestigation not only to the complainant but to the accused whois proceeded against is the mandate of law. The investigatingofficer, 3rd respondent, is empowered to conduct an investigationof a crime where the petitioner, former Chief Minister is shownas an accused, is a different matter. Where his investigation isimpeached pointing out material circumstances why it is unfair itshould have received more attention. True, in the reply, the 2ndrespondent has stated that the investigation is nearingcompletion and if further investigation is required, action will betaken at the appropriate time after scrutiny of records, but thatreply, as indicated, was given after filing of the writ petition. W.P.(C).NO.21529/2012 5225. Going by the allegations raised in Ext.P1 FIR and thetotality of the circumstances presented in the case to impute actsof corruption against petitioner, former Chief Minister, with allsobriety and equanimity, it has to be stated that the casecanvassed by the petitioner that the registration of the crime isintended to tarnish his image before the public imputingcorruption against him, that alone, cannot be brushed aside.Allegations of corruption imputed against him are sopreposterous and unworthy of any merit, and the laterdevelopments after registration of the crime in leaving out thehigher Government officials, proceeded as co-accused in thecrime, and who are imputed of having shamelessly conspiredwith petitioner and another Minister to do the criminal acts ofcorruption, would also lend some credence to the case canvassedby the petitioner since he had been fighting corruptionrelentlessly through out his political career inviting the wrath ofsuch persons proceeded against, he is also sought to beprojected as corrupt by registering the crime. Fixing him as themain accused with baseless and unfounded allegations andincluded with some public servants as having conspired and W.P.(C).NO.21529/2012 53assisted him in doing corrupt acts, the case proceeded, but,later, after investigation, the Government officials, who primarilycould be imputed as culpable for having done the criminal actsobeying the instructions of Chief Minister or Minister showingtheir spineless character, have been left out in the case. Fixingthe man and getting the cross ready for crucifixion, was it a casein search of nails. If that be so, howsoever sharp and pointed thenails are, where the cross is made of softwood each attempt tonail the person would shatter that wood into pieces. Imputationslevelled in Ext.P1 FIR to proceed against the petitioner, a formerChief Minister of the State, in the facts and circumstancespresented in the case, not only do not make out any offence toproceed against him but give enough room to sustain the casecanvassed by him that he has been proceeded against to malignhim before the public. 26. Appeals preferred with special leave petitions by twoamong the accused in the crime against the dismissal of theirpetitions challenging Ext.P1 FIR are pending before the ApexCourt. That being so, challenge against Ext.P1 FIR and W.P.(C).NO.21529/2012 54proceedings thereof only against the petitioner is accepted topass orders thereof.27. Ext.P1 FIR registered against the petitioner, proceededas the 1st accused in the crime, in respect of him alone, and allfurther criminal proceedings against him on the basis of suchFIR, are quashed exercising the extraordinary powers of thiscourt.Writ petition is allowed.S.S.SATHEESACHANDRAN JUDGEprp