2025:KER:31640 1 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 CRL.REV.PET NO. 560 OF 2021 AGAINST THE ORDER DATED 21.04.2021 IN CRMP NO.27 OF 2021 IN CC NO.4 OF 2011 IN RC NO.18(A)/2008/CBI/KER OF THE SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM REVISION PETITIONER/RESPONDENT/COMPLAINANT: CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY SUPERINTENDENT OF POLICE – 695 004. BY SHRI.SREELAL WARRIAR, SC, CBI RESPONDENT/PETITIONER/2ND ACCUSED: P.R.SANDHYA (ACCUSED NO.2), W/O.LATE P.K.SANAL KUMAR, SREE SANDHYA, IAS ROAD, OPPOSITE KALAVIKKAL HOUSE, VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 013. BY ADVS. S.SREEKUMAR (SR.) 2025:KER:31640 2 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA M.A.MOHAMMED SIRAJ R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HARIKRISHNAN S. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 03.04.2025, ALONG WITH Crl.MC.2017/2022, THE COURT ON 10.04.2025 DELIVERED THE FOLLOWING: 2025:KER:31640 3 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 CRL.M.C.NO. 2017 OF 2022 FOR QUASHING THE FINAL REPORT IN CC NO.125 OF 2021 OF THE CHIEF JUDICIAL MAGISTRATE ,THIRUVANANTHAPURAM PETITIONER/2ND ACCUSED: P.R. SANDHYA, AGED 49 YEARS W/O LATE P.K. SANAL KUMAR, SREE SANDHYA, I.A.S ROAD, OPPOSITE KALAVIKKAL HOUSE, VATTIYOORKAVU, THIRUVANANTHAPURAM, PIN – 695013. BY ADVS. S.SREEKUMAR (SR.) P.MARTIN JOSE P.PRIJITH M.A.MOHAMMED SIRAJ THOMAS P.KURUVILLA AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. RESPONDENT: THE CENTRAL BUREAU OF INVESTIGATION, REP. BY. ITS STANDING COUNSEL, HIGH COURT OF 2025:KER:31640 4 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 KERALA, ERNAKULAM, PIN – 682031. SHRI.SREELAL WARRIAR, SC, CBI THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL HEARING ON 03.04.2025, ALONG WITH Crl.Rev.Pet.560/2021, THE COURT ON 10.04.2025 PASSED THE FOLLOWING: 2025:KER:31640 5 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 P.G. AJITHKUMAR, J. ----------------------------------------------------------- Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 ----------------------------------------------------------- Dated this the 10th day of April, 2025 O R D E R Crl.R.P.No.560 of 2021 Calendar Case No.4 of 2011 was instituted before the Special Court (SPE/CBI), Thiruvananthapuram based on the final report filed by the Central Bureau of Investigation in Crime No.RC 18(A)/2008/CBI/KER. The final report was originally filed before the Special Court for trial of CBI cases, Ernakulam and it was eventually transferred to the Special Court at Thiruvananthapuram. The petitioner is the 2nd accused. Her husband, who is no more, is the 1st accused. Offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption, 1988 (PC Act) and Section 109 of the Indian Penal Code, 1860 (IPC) read with Section 13(1)(e) of the PC Act are alleged against the accused. As per the order 2025:KER:31640 6 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 dated 21.04.2021, the Special Court allowed the petition filed by the petitioner, Crl.M.P.No.27 of 2021, for taking appropriate action on account of the death of the 1st accused. It was accordingly ordered that the case would be transferred to the court of the Chief Judicial Magistrate, Thiruvananthapuram for disposal. The Central Bureau of Investigation challenges the said order in this revision petition. Crl.M.C.No.2017 of 2022 2. The petitioner is the 2nd accused in C.C.No.125 of 2021 on the files of the Court of Chief Judicial Magistrate, Thiruvananthapuram. She seeks to quash Annexure-2 final report and the proceedings in CC No.125 of 2021. 3. The case originated on a final report filed by the CBI. The offences alleged are punishable under Section 13(1) (e) read with Section 13(2) of the PC Act and Section 109 of the IPC read with Section 13(1)(e) of the PC Act. Initially C.C.No.2 of 2010 was instituted based on the said final report before the Special Court-II (CBI cases), Ernakulam. It was 2025:KER:31640 7 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 later transferred to the Special Court (SPE/CBI), Thiruvananthapuram, where it continued as C.C.No.4 of 2011. Later, following the death of the 1st accused, the Special Court as per the order dated 21.04.2021 transferred the case to the Court of Chief Judicial Magistrate, Thiruvananthapuram, where the case was refiled as C.C.No.125 of 2022. The final report and the proceedings in the said case before the Chief Judicial Magistrate are sought to be quashed. Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 4. Heard the learned Standing Counsel for the CBI and the learned Senior Counsel appearing for the respondent in the revision petition, who is the petitioner in the Crl.M.C. 5. The case of the prosecution is as follows: The 1st accused was a public servant working in Southern Railway. During the check period from 01.03.2002 to 21.05.2008, he amassed wealth to a tune of Rs.84,36,041/-, in his name and in the name of his wife/2nd accused and mother- in-law. He acquired the said assets disproportionate to his 2025:KER:31640 8 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 known sources of income and he could not satisfactorily account for such acquisition. The petitioner-2nd accused abetted the 1st accused to acquire such assets in illegal means. Thereby the 1st accused has committed the offence under Section 13(1) (e) of the PC Act and the petitioner for an offence punishable under Section 109 of the IPC read with Section 13(1)(e) of the PC Act. 6. Annexure-3 in the Crl.M.C. is a copy of the death certificate of the 1st accused. He expired on 04.01.2021. That fact is not in dispute. He expired pending the trial of the case and therefore the charge against him abated. 7. The question whether the Special Court could continue the proceedings in C.C.No.4 of 2011 arose on account of filing Crl.M.P.No.27 of 2021 filed by the petitioner. The Special Court held that since the trial in the case was yet to be commenced and in the light of the law laid down by the Apex Court in State through CBI, New Delhi v. Jitender Kumar Singh [(2014) 11 SCC 724], that court ceased to have 2025:KER:31640 9 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 jurisdiction. Accordingly, the case was transferred to the Chief Judicial Magistrate’s Court, Thiruvananthapuram as provided in Section 228(a) of the Code of Criminal Procedure, 1973 (Code). The law on that score, as held in Jitender Kumar Singh (supra), is succinct. If the trial is not commenced before the death of a public servant accused, the Special Court loses jurisdiction to try non-public servant accused. Hence, the order of the Special Court dated 21.04.2021 directing transfer of the case to the Chief Judicial Magistrate's Court cannot be interfered with. 8. The 2nd accused is indicted with the offence of abetment. The prosecution alleges that the 1st accused acquired disproportionate assets at the instigation of the 2nd accused. Charge-II in the final report contains the allegations against the 2nd accused. For an easy understanding, the said head of the charge is extracted below: “That Smt.P.R.Sandhya (A-2) w/o Shri P.K.Sanal Kumar (A-1) from 01.03.2002 to 21.05.2008 had abetted the commission of offence of possession of assets disproportionate to the known 2025:KER:31640 10 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 sources of income of Sri.P.K.Sanal Kumar, a Public Servant, in the name of Sri P.K.Sanal Kumar (A-1), in her name of Smt.P.R.Sandhya (A-2) and in the name of her mother Smt.A.Rajeswari for which offences were committed in consequences of her abetment and thereby Smt. P.R.Sandhya (A-2) committed offences punishable U/s 109 IPC r/w 13(2) r/w 13(1)(e) of the PC Act 1988.” 9. The learned Senior Counsel appearing for the 2nd accused would submit that having regard to the ingredients of the offence under Section 13(1)(e) of the PC Act, a person cannot be prosecuted for its abetment, only for the reason that the assets in question were acquired in the name of that person. It is further submitted that allegations in the final report or the materials produced by the prosecution do not make out ingredients of an offence of abetment and for that reason also, prosecution of the 2nd accused is against law. The learned Standing Counsel for the CBI did not agree with the said view. The learned Standing Counsel would submit that when a major portion of the tainted assets are acquired in the name of the 2nd accused, who is none other than the wife of the 1st accused-public servant, the inevitable inference is that 2025:KER:31640 11 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 she instigated to acquire such assets. Without her aid and express consent, no acquisition in her name could be possible and in that view also, her act amounted to an offence of abetment. The learned Standing Counsel avails the aid of the Explanations to Section 107 of the IPC, which defines ‘abetment’ to fortify that the charge against the 2nd accused will lie. 10. Section 107 of the IPC defines abetment’, which reads: “107. Abetment of a thing.- A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. Illustration.- xx xx xx Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or 2025:KER:31640 12 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.” 11. The Apex Court in Jamuna Singh v. State of Bihar [AIR 1967 SC 553] dilated the said provision and explained the situations where an offence of abetment occurs: i) Instigating any person to do an act; ii) Engaging with one or more persons in any conspiracy for doing of that act; or iii) Intentionally aiding the doing of that act. The offence of abetment would be complete when the abettor has instigated another or engaged with another with a conspiracy to commit the offence. It may not be necessary for constituting the offence of abetment that the act abetted is committed. Therefore, prosecution of the 2nd accused is possible, if the prosecution produced materials to show that she either instigated the 1st accused to acquire the assets in 2025:KER:31640 13 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 question or any of its parts, or they conspired for acquiring such assets, or knowingly aided the 1st accused to acquire the assets. 12. In Faguna Kanta Nath v. State of Assam [AIR 1959 SC 673], one Khalilur Rahman, who was a public servant, demanded a bribe of Rs.200/- from the complainant, who could pay readily only Rs.80/- and further agreed to execute a promissory note for Rs.70/-. On the instruction of Khalilur Rahman, Rs.80 was entrusted with the appellant and the promissory note was executed in his name. When his conviction was challenged, the Apex Court held as follows: “6. xx xx xx the person who demanded the illegal gratification for allowing the carts to proceed was Khalilur Rahman who had the authority to do or not to do a particular act and all that the appellant is alleged to have done was to receive the money at the instance of Khalilur Rahman for counting and then paid the money to him. It is not the prosecution case that the appellant abetted the offence by instigating Khalilur Rahman to demand the illegal ratification; nor has the prosecution set up or proved a case of conspiracy between the appellant and Khalilur Rahman for the commission of an offence under Section 161. On the 2025:KER:31640 14 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 findings of the Court the appellant received the money for and on behalf of Khalilur Rahman and the evidence of the complainant is that Khalilur Rahman had asked him to hand over the money to the appellant. If Khalilur Rahman is acquitted and therefore the offence under Section 161 is held not to have been committed, then in this case no question of intentionally aiding by any act or omission the commission of the offence arises.” 13. This Court in Chandra Mohan v. State of Kerala [1988 (1) KLT 35] considered the question when one could have abetted another to commit an offence. The view expressed in Judicial Dictionary by K.J.Aiyer 8th Edition was extracted to explain the ingredients of the offence of abetment, which reads: “In order to constitute one an aider or abettor some active steps must be taken by him by word or action with intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding or abetting. It may be intentional or unintentional. A man may unwittingly encourage another in fact by his presence, misinterpreted words or gestures, or by his silence or non-interference or he may encourage intentionally by expressions, gestures or actions intended to specify approval.” 2025:KER:31640 15 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 14. From the above, unless the prosecution is able to prove that there was some positive act encouraging the person or intentionally aided in doing the act in question by the petitioner, there cannot be a charge for abetment against her. A close analogy between the facts of Faguna Kanta Nath (supra) and the present case can be drawn. There the appellant received the bribe money on the instructions of the public servant. Similarly, here, the 2nd accused received the ill-gotten money from the 1st accused. True, using such income she made fixed deposits and acquired properties in her name. But, no evidence is proposed by the prosecution to prove that the 2nd accused had an active role or has she instigated the 1st accused in acquiring the ill-gotten wealth. In that context, the ingredients of the offence under Section 13(1)(e) of the PC Act need to have a look. 15. Section 13(1)(e) of the PC Act reads: “13. Criminal misconduct by a public servant.-(1) xx xx (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in 2025:KER:31640 16 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.” 16. Possession of pecuniary resources and property not only by the public servant, but also by any other person on his behalf, for which the public servant is unable to satisfactorily account, amounts to an offence. When possession of pecuniary resources or property by such other person also is an offence and the burden to offer satisfactory explanation for such possession is on the public servant himself, such other person cannot be held responsible for the offence for the reason only of his possessing such pecuniary resource or property. However, if the prosecution is able to establish that such a person had an active role in making such acquisitions or intentionally aided by involving in a conspiracy or by rendering intentional aid in the matter of acquisition, a prosecution for abetment is legally possible. For that, there must be evidence. Here, the witnesses cited and the documents produced by the prosecution certainly will help 2025:KER:31640 17 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 to establish acquisition of property and depositing huge sums by the 2nd accused. Her income does not justify such acquisitions and deposits. Therefore, it may be possible to find, if the evidence proposed by the prosecution is accepted, that she made such acquisitions using the ill-gotten wealth obtained by the 1st accused while he was holding the public office. 17. Going by the proposition of law in Faguna Kanta Nath (supra), the aforementioned materials are not enough to presume that the 2nd accused has committed the offence of abetment. Receiving of such ill-gotten money from the 1st accused and dealing with the same by the 2nd accused may attract the provisions concerning attachment under Section 18A of the PC Act and forfeiture under the relevant statutes. But, in the absence of sufficient materials to establish the ingredients of an offence of abetment, the prosecution of the 2nd accused is not possible. Accordingly, it is found that the plea for quashing the proceedings in C.C.No.125 of 2021 pending 2025:KER:31640 18 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 before the court of Chief Judicial Magistrate, Thiruvananthapuram is liable to be allowed. In view of what are stated above, Crl.R.P.No.560 of 2021 is dismissed and Crl.M.C.No.2017 of 2022 is allowed by quashing further proceedings in CC No.125 of 2021 pending before the Court of Chief Judicial Magistrate, Thiruvananthapuram. Sd/- P.G. AJITHKUMAR, JUDGE dkr 2025:KER:31640 19 Crl.R.P.No.560 of 2021 & Crl.M.C.No.2017 of 2022 APPENDIX OF CRL.MC 2017/2022 PETITIONER ANNEXURES ANNEXURE 1 CERTIFIED COPY OF FIR IN RC NO. 18 (A) / 2008 – CBI/ KER ANNEXURE 2 CERTIFIED COPY OF FINAL REPORT IN C.C. NO. 125 OF 2021 OF CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM ANNEXURE 3 TRUE COPY OF DEATH CERTIFICATE OF ACCUSED NO.1 (SANAL KUMAR P.K) DATED 19-01-2021 IS ISSUED FROM EMBASSY OF INDIA RIYADH