Court’s Decision
The Kerala High Court, through Justice A. Badharudeen, dismissed a revision petition filed by a municipal officer seeking discharge from prosecution in the high-profile Samrat Hotel illegal construction case. The Court held that there existed a prima facie case of conspiracy and dereliction of duty against the officer, who had failed to take action despite receiving a complaint about the illegal demolition and reconstruction in a heritage zone where new commercial constructions were prohibited.
The Court observed:
“It is too premature to hold that the revision petitioner had no involvement in any conspiracy as alleged by the prosecution. Prima facie, the involvement of the petitioner as part of the conspiracy hatched in this crime is well made out.”
Dismissing the revision petition under Section 442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Court upheld the Special Judge’s refusal to discharge the officer under Section 239 CrPC, directing the trial to proceed expeditiously.
Facts
The prosecution case originated from a large-scale illegal construction of a four-storied building named Samrat Hotel in Thakaraparambu, Thiruvananthapuram. The building was situated within the proposed heritage zone, where new commercial constructions were strictly prohibited under the Kerala Municipality Building Rules, 1999.
According to the Vigilance and Anti-Corruption Bureau (VACB), the owner of the building (accused No. 6) had applied for permission to carry out internal renovations, which did not require a permit under Rule 10(ix). However, officials of the Thiruvananthapuram Corporation (accused Nos. 1 to 5) allegedly conspired with him, granting a permit under Appendix-C, Rule 11(3), enabling full demolition and reconstruction of the building into a four-storied commercial structure.
The petitioner, a Building Inspector (arrayed as the 5th accused), was in charge of the area from 19 July 2006 to 23 December 2006, during which the illegal construction continued. The Vigilance report alleged that despite receiving a complaint about the demolition on 13 September 2006, the petitioner failed to take any action to stop the illegal work.
An initial complaint by a citizen on 25 November 2006 prompted another officer (CW5) to issue a Stop Memo on 27 November 2006, but by then, the illegal structure had nearly been completed.
The VACB filed charge sheets against the Corporation officials under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and Section 120B IPC (criminal conspiracy).
The petitioner moved for discharge under Section 239 CrPC, contending that she had no role in the conspiracy, joined office after the permit was granted, and took steps upon becoming aware of the violation. The Special Judge rejected the plea, prompting her to approach the High Court in revision.
Issues
- Whether the petitioner, a Building Inspector, could be held prima facie liable for criminal conspiracy and misconduct for failure to prevent illegal construction.
- Whether omission to act on a written complaint received during her tenure constituted sufficient material to proceed to trial.
- Whether the discharge under Section 239 CrPC was warranted in the absence of direct evidence linking her to the conspiracy.
Petitioner’s Arguments
Counsel for the petitioner contended that she had no role in granting the illegal permit, as she joined office on 19 July 2006, months after the alleged conspiracy commenced in March 2006. It was argued that her duties were limited to inspection and that she acted promptly upon learning of the unauthorized construction by initiating steps to issue a stop memo.
The petitioner maintained that the complaint dated 13 September 2006, allegedly recorded in the Petition Squad Register, had never come to her notice, and she became aware of it only on 25 November 2006, when a subsequent complaint was filed. It was claimed that upon discovering the violation, she initiated action, which resulted in CW5 issuing the stop memo.
Her counsel further argued that the prosecution failed to show any mens rea or active participation in the alleged conspiracy. It was submitted that the Special Judge had ignored exculpatory material and failed to consider that mere departmental negligence cannot amount to criminal conspiracy.
Reliance was placed on the Supreme Court’s decision dismissing the co-accused (the building owner)’s appeal against refusal to quash proceedings, where the Court distinguished the role of the architect (whose prosecution was quashed) from that of the owner and officials.
Respondent’s Arguments
The Public Prosecutor, appearing for the VACB, opposed the plea, asserting that the petitioner’s inaction amounted to aiding the illegal construction. It was pointed out that she was on squad duty on 13 September 2006, when the first complaint was received. The complaint, recorded by Superintendent CW41 Kamalamma in the Petition Squad Register (Ext.W), specifically related to the illegal reconstruction of the Samrat Hotel in Thakaraparambu.
Evidence from multiple witnesses, including CW6 (driver of the Corporation vehicle), confirmed that the petitioner had used the official vehicle for inspection duty on that date but failed to act. The prosecution argued that her wilful omission facilitated completion of the construction.
The Vigilance report emphasized that under G.O.(MS) 163/80/LA.SWD dated 06.07.1996, the Building Inspector’s duties include detecting unauthorized constructions in their jurisdiction. The petitioner, despite being on duty and aware of the complaint, failed to conduct an inspection or issue a stop memo.
Further, when another complaint was received on 25 November 2006, she again remained silent, forcing another inspector (CW5) to issue the stop memo on 27 November 2006. The prosecution alleged that this pattern of omission was not accidental, but a deliberate act of complicity.
Analysis of the Law
The Court examined the scope of Section 239 CrPC (now Section 273 of BNSS, 2023), governing discharge in warrant cases. The provision empowers the trial court to discharge an accused only if the materials do not disclose any ground for presuming the commission of an offence. The Court emphasized that at the discharge stage, it is sufficient if there exists a strong suspicion about the accused’s involvement.
Justice Badharudeen noted that the prosecution materials, including statements of CW4, CW5, and CW41, clearly established that the petitioner was the officer responsible for the area during the relevant period, and complaints of illegal construction were on record. The Court held that the non-issuance of a stop memo despite knowledge of the complaint raised serious suspicion of collusion.
The Court reiterated that failure to act can amount to aiding a conspiracy when the omission facilitates completion of an illegal act, particularly by a public officer charged with regulatory duties.
Precedent Analysis
The Court referred to the Supreme Court’s order in SLP No. 1694 of 2024, where the building owner (accused No. 6) had challenged similar findings. The Apex Court upheld the prosecution, observing:
“The officials of the Corporation, charge-sheeted along with the appellant, have not challenged the criminal proceedings, which is a tacit acknowledgment of the seriousness and prima facie validity of the allegations.”
The High Court also relied on its own earlier decision in Crl.R.P. No. 806/2025, where it dismissed the co-accused’s plea for discharge, finding that Corporation officials knowingly aided illegal construction under the guise of renovation.
Together, these precedents established that officials who facilitated or failed to prevent illegal construction could not claim immunity at the pre-trial stage.
Court’s Reasoning
Justice Badharudeen found that the prosecution’s records, particularly the Petition Squad Register, attendance registers, vehicle logbooks, and witness statements, corroborated the petitioner’s presence and responsibility during the period of omission.
The Court noted that by 13 September 2006, the petitioner had already assumed charge as Building Inspector for the TP-7 Section, which included the Sreekanteswaram Ward, where the illegal construction took place. Her duty was to verify complaints and act upon them.
“When the Town Planning Department received a complaint in writing as per Ext.W, a duty was cast upon the revision petitioner to inspect the site. The inference is that the petitioner remained silent without taking action, allowing the construction to reach completion.”
The Court rejected the argument that she was unaware of the complaint, holding that such a claim could only be examined during trial, not at the stage of discharge.
Consequently, it concluded that a prima facie case existed of conspiracy and misconduct under the Prevention of Corruption Act and IPC, justifying continuation of trial.
Conclusion
The High Court dismissed the revision petition, affirming the Special Court’s refusal to discharge the petitioner. It directed the Special Court to expedite the trial and vacated interim stay orders.
“Prima facie, the involvement of the revision petitioner as part of the conspiracy hatched in this crime is well made out, and therefore, the discharge plea raised by the revision petitioner could not succeed.”
This marks yet another judicial affirmation of accountability for civic officials who enable illegal constructions through neglect or collusion.
Implications
The ruling reinforces that public officers can be criminally liable for omissions if their inaction facilitates corruption or illegality. It clarifies that at the discharge stage, courts must only assess whether prosecution materials raise a strong suspicion—not determine guilt.
The judgment serves as a warning to municipal and regulatory officers that failure to act against unlawful constructions in heritage or restricted zones can attract criminal prosecution under the Prevention of Corruption Act.
It also strengthens vigilance jurisprudence in Kerala, where civic complicity in construction violations has long been a recurring issue.
FAQs
1. Why was the discharge denied?
Because the Court found sufficient materials indicating that the officer failed to act despite receiving a complaint about an illegal construction, raising a prima facie case of conspiracy and misconduct.
2. What legal test governs discharge under Section 239 CrPC?
A court can discharge an accused only if no prima facie case or strong suspicion exists. Mere denial of involvement does not suffice at this stage.
3. Can omission by a public officer constitute corruption?
Yes. When a public officer’s deliberate inaction enables illegal acts, such omission can amount to aiding a conspiracy or committing misconduct under the Prevention of Corruption Act.
