Revision petitioner is the 8th accused in C.C No.4/2004 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. He is aggrieved by the order passed by court below on Crl.M.P No.172/2009 in the said case, whereby his prayer for discharge was disallowed.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. According to the learned counsel for the revision petitioner, this is a strange case wherein the petitioner is made 8th accused as well as charge witness No.28, a situation unheard- of in a criminal trial.
4. Prosecution case is that the accused in the case conspired together and allowed the first accused, the contractor, to take away Rs.3,09,895/- unlawfully as value of price escalation, in spite of having an agreement disabling the contractor from claiming price escalation and the accused persons therefore have committed offences punishable under Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and Section 120B I.P.C. Case against the petitioner is that as Assistant Executive Engineer, he handled the file relating to claim made by the first accused for enhancement of payment and also that he sent the file to officers subordinate to him and then he forwarded the file back to his Superiors.
5. Learned counsel for the revision petitioner submitted that even going by the testimony of CW32, the only witness incriminating the petitioner, it can be seen that the revision petitioner has only performed his duty as Assistant Executive Engineer. Nothing beyond was done by the Officer, contended the learned counsel for the revision petitioner. That apart, the revision petitioner was not the sanctioning authority of the amount claimed by the first accused. Statement given by witness No.32 will show that the petitioner had not done anything in regard to alleged disbursement of undeserving amount to the first accused.
6. I find a weird situation revealed in this case. Our criminal jurisprudence does not permit an accused to be a prosecution witness against him in the same case. Conversely, the prosecution witness cannot be implicated as an accused in the same case in which he is cited. Therefore, on this sole reason, the charge against the petitioner is legally unsustainable.
7. Besides, the allegations mentioned against the petitioner as per the final report prima facie does not establish that he has done anything out of the way to help the first accused in claiming any amount which he was not entitled to. As Assistant Executive Engineer, the petitioner was duty bound to deal with the file. The prosecution has no case that the petitioner is the competent person to take any decision in relation to the claim put forward by the first accused. Merely for the reason that he handled the file, he cannot be implicated in the case without any reliable material to show his complicity. On the facts of the case also, I find that the accused is entitled to claim discharge. The finding of the court below that the accused is not entitled to get discharge and he should be put on trial cannot be legally sustained. It is made clear that the discharge plea, even after its acceptance, will not absolve the petitioner from any criminal liability, if it is established at the stage of evidence that he also was involved in the alleged misconduct. The trial court's power under Section 319 Cr.P.C is not affected by this order of discharge. I am of the definite view that with the materials on record, the petitioner cannot be called up to face a trial and he is entitled to be discharged.
In the result, the revision petition is allowed. The revision petitioner (8th accused in C.C No.4/2004) on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is hereby discharged.
All pending interlocutory applications will stand dismissed.
amk Sd/- A.HARIPRASAD, JUDGE.