Kerala High Court Directs Vigilance To Return Rs 47 Lakh Seized From IUML Leader KM Shaji's House

The Kerala High Court on Tuesday ordered return of the amount seized by Vigilance from the house of Indian Union Muslim League (IUML) leader and former MLA K M Shaji. 

Justice Ziyad Rahman A.A. directed that the amount of Rs. 47.35 Lakh shall be released on Bank guarantee.

"...when it comes to the question of the release of the articles in favour of the accused, the court should adopt a more cautious approach and should ensure that sufficient safeguards are put in place to recover the article or amount when the necessity arises. This is particularly because, until the trial is completed and the accused is found guilty, the allegations based on which the recovery of such articles was made are mere accusations yet to be proved. 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," the Court observed. 

The case against Shaji was registered on the basis of a complaint by CPM activist and lawyer M.R. Harish before the Court of Special Judge. The complainant alleged that the petitioner had amassed wealth disproportionate to his known and legal sources of income. 

The vigilance had accordingly conducted a raid in Shaji's house, and submitted a report stating that the petitioner had amassed wealth beyond his known sources of income by a margin of 166% between June 2011 to October 2020. The petitioner was accordingly booked under Section 13 of the Prevention of Corruption Act 1988 ('PC Act, 1988'). The VACB also seized currency notes amounting to Rs. 47,35,000/- from the petitioner's house. 

Shaji thus approached the Special Court at Kozhikode seeking release of the aforementioned amount. The Special Court however rejected his demand. 

It is challenging the same that Shaji approached the High Court. Shaji claimed that the amount taken away by the Vigilance was the amount he had collected for election work. The Special Government Pleader A. Rajesh opposed the above submission. The counsel argued that the receipts submitted by the petitioner allegedly evidencing the collection of the aforementioned amount from the general public, were not properly authenticated, and that 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. It was also pointed out that there were several discrepancies in the receipts produced.

The High Court had earlier stayed the vigilance proceedings against him. 

The Court in this case observed that while the findings of the Single Judge in rejecting the petitioner's application could not be stated as prima facie 'erroneous', the crucial aspect to be considered was whether such findings could be a reason to reject the application for release of the amount to him. 

It added that the conclusions of the Special Judge could only be treated as prima facie findings, and the ultimate finding on the question as to whether the petitioner had amassed wealth disproportionate to known sources of his income, would have to be entered into only after a full-fledged trial.

The Court went on to state that order to be passed under Section 451 Cr.P.C. only intends to make a provisional arrangement regarding the interim custody of the articles seized during the pendency of the trial. 

"...the crucial question to be decided while passing orders under Section 451 Cr.P.C. is whether the person can be entrusted with the property during the pendency of the trial and while passing such orders, it should also be ensured that sufficient safeguards are put in place to secure the recovery of the said article when required. In other words, while the entrustment of custody of the article to a person is made as per the orders passed under Section 451 Cr.P.C., such person attains the capacity of the representative of the court only, and he is under a constant obligation to return the same to the court when demanded," the Court observed. 

The Court thus perused a plethora of precedents laying down the guidelines to be followed by the courts under Section 451 Cr.P.C. regarding disposal of the articles, including currency seized during the investigation, to state that depriving a person of his articles merely on accusation would not be justifiable. 

The Court further went on to note that the fact that the VACB had also taken steps to initiate proceedings under the Criminal Law Amendment Ordinance, 1944, also clearly revealed that the said autority too intended to ensure that the amount seized by them would be preserved until the trial is over

The Court was thus fortified in its view that the attachment was only a method contemplated for preserving the articles seized or to ensure the recovery of the amount procured by the accused through the commission of crime. It held that the amount could be released to the petitioner, with appropriate conditions to ensure the recovery of the said amount without any lengthy legal process, if he was later found guilty in the trial.

"...the ultimate purpose is to ensure the preservation of the articles seized as part of the investigation and not to enrich any party or deprive any person, based on the accusations yet to be proved. Therefore, a balanced approach has to be made by keeping in mind the rights and interests of both the parties, i.e., the State and the accused, in equal proportions. If there are means to secure the recovery of the articles or cash, there is nothing wrong in adopting such means without causing any prejudice to the rights and interests of any of the parties," the Court added, while allowing the plea. 

The petitioner was represented by Advocate Babu S. Nair

Citation: 2023 LiveLaw (Ker) 553

Case Title: K.M. Shaji v. State of Kerala 

Case Number: Crl.MC 8368/ 2022

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