Title: K M Shaji v. State of Kerala and others
Decided on: 10th october 2023
CRL.MC NO. 8368 OF 2022
Coram: THE HONOURABLE MR. JUSTICE ZIYAD RAHMAN
Introduction
The High Court of Kerala in the case of K M Shaji v. State of kerala and others, held that it not necessary to deprive a person of his articles or amounts on mere accusations until the same are properly proved before the court.
Facts of the case
The petitioner is a politician and was elected as a member of the Kerala Legislative Assembly in 2011 and 2016 from the Azheekode constituency. He was also the candidate for the Assembly elections conducted in the year 2021 for the same constituency. M.R. Harish filed a complaint before the Court of Special Judge, alleging that the petitioner had amassed wealth disproportionate to his known and legal sources of income. The Special Judge forwarded the same to the Vigilance and Anti-Corruption Bureau Special Cell, Kozhikode, for preliminary enquiry. After a preliminary inquiry, a report was submitted with a finding that he amassed wealth beyond his known sources of income by a margin of 166% during the period from 1.6.2011 to 31.10.2020. Accordingly, aforesaid crime was registered under Sections 13(2) read with 13(1) (e) of the Prevention of Corruption Act 1988 read with 13(1) (b) of the Prevention of Corruption (Amendment ) Act, 2018 on 11.04.2021. As part of investigation, a search was conducted in the house owned by the petitioner’s wife situated at Ottathengumanal, Kannur. In the search, five documents, gold ornaments weighing 16.21 gm and Indian currency notes worth Rs.47,35,500/- were seized. Currency notes worth Rs.46,35,500/- was found under a fully covered cot in the bedroom and remaining Rs.1,00,000/- was found in a cupboard.
An application was filed by the petitioner seeking the release of the said currency notes under Section 451 Cr.P.C. 3. The SP of Vigilence and Anti-Corruption Bureau objected to release the amount. The Special Judge rejected the application and filed a Criminal Miscellaneous petition.
Court Analysis and Decision
As per the petitioner’s explanation for the source and purpose of amount was that he being a candidate for the election, as part of generating the funds to meet the expenses for the election, amounts were collected from the public and same was kept in the election camp office of the petitioner, which was the house wherein the inspection was conducted. It was observed that the receipts furnished by the petitioner were not properly authenticated, and the amounts claimed to have been collected from the public were not reflected in the statement of election expenditure submitted before the District Election Officer as contemplated under Section 78 of the Representation of People Act. Most of the receipts are for the amounts of Rs.10,000/-, 15,000/-, 20,000/- etc., and the said amounts should not have been collected by the petitioner in cash. The petitioner’s explanation was not tallying with the declaration of the expenses he made before the Election Commission i.e. Rs.6,09,280/-. He also failed to produce the day-to-day account book, to substantiate the source of Rs.46,35,500/-. petitioner had not filed income tax returns till the financial year 2015-2016, and pertaining to the subsequent financial years until 2019-2020 he submitted “nil” returns. In financial year 2020-21, when the inspection was conducted, he submitted returns, including the amount in question, and paid an amount of Rs.10,47,410/- as the income tax much after the seizure of the amount.
It is evident from the observations made by the Honourable Supreme Court in Smt.Basavva Kom Dyamangouda Patil v. State of Mysore, Sundarbai Ambalal Desai v. State of Gujrat, Suresh Serve V v. State of Kerala, that it is not necessary to keep the articles in the custody of the court for a period more than required. Regarding the release of the articles in favour of the accused, the court will have to adopt more cautious approach and should ensure that sufficient safeguards are put in place to recover the article or amount when the necessity arises. Therefore, depriving a person of his articles or amounts on mere accusations until the same are properly proved through the fact finding mechanism of the trial is not justifiable. As the purpose is to ensure that the disproportionate wealth amassed by the petitioner is preserved, the petitioner’s application can be considered from that point of view. Court has given directions for the release of Rs.47,35,500/- to the petitioner subject to conditions that petitioner should execute a bond for the said amount with two solvent sureties along with a bank guarantee.
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Written by- K R Bhuvanashri
