Duty to Act Is Paramount — Wilful Inaction by Public Officer May Amount to Conspiracy: Kerala High Court

“Timely Action Could Have Prevented Completion of Illegal Construction; Omission Cannot Be Ignored in Pre-Trial Stage” — Discharge Rejected for Facilitating Offence by Silence. In a significant decision reinforcing the accountability of public officials for deliberate omissions, the Kerala High Court dismissed the criminal revision petition filed by a former Building Inspector, M. Kumari, accused of facilitating an illegal four-storey hotel construction in a notified heritage zone in Thiruvananthapuram, by failing to act on a complaint of unauthorized construction.

Justice A. Badharudeen affirmed the Special Vigilance Court’s order refusing discharge under Section 239 CrPC, holding that the prosecution had made out a prima facie case of criminal conspiracy and culpable inaction under Section 120B IPC and Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.

“The Building Inspector was responsible for the area where the illegal construction took place. When a complaint was received on 13.09.2006, her duty to inspect and prevent further progress was not just administrative—it was legal. Her silence speaks volumes,” the Court observed.

“When Conspiracy Is Alleged, Later Joining Does Not Automatically Exonerate a Public Servant” — High Court Clarifies Scope of Discharge Under Section 239 CrPC

The petitioner, M. Kumari, who was the 5th accused in the case arising out of C.C. No. 3/2020, had approached the High Court invoking Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the Special Court’s refusal to discharge her from the case.

Her counsel argued that she joined the Corporation as a Building Inspector only on 19.07.2006, whereas the original application for renovation by the 6th accused (building owner) and the initial steps in the alleged conspiracy occurred earlier. It was further contended that she acted promptly upon discovering the construction and therefore had no role in any criminal conspiracy.

However, the Court rejected these contentions, holding:

“The power under Section 239 CrPC is limited to assessing whether a prima facie case or strong suspicion exists—not to evaluate the strength of defence. The allegation of conspiracy is not defeated merely by plea of later joining.” [Para 10]

“Omission Can Be a Form of Participation” — High Court Finds Wilful Inaction on Complaints Enabled Completion of Illegal Building

The prosecution alleged that the 6th accused had misused a permit for internal renovation—granted under Rule 10(ix) and Rule 11(3) of the Kerala Municipality Building Rules, 1999—to construct a new four-storey hotel (Hotel Samrat) in a heritage zone, where commercial construction was strictly prohibited.

According to the Vigilance and Anti-Corruption Bureau (VACB), although a complaint was received on 13.09.2006, the petitioner took no action, even though she was present in office, had access to the squad register, and used the official vehicle for squad duty on the very same day.

The Court took note of the investigation report filed by the VACB, including witness statements, duty rosters, and official logs, to conclude:

“The revision petitioner failed to act on a recorded complaint dated 13.09.2006, despite being on squad duty and using the official vehicle for site inspection. Her omission allowed near-completion of the construction before any Stop Memo was issued.” [Paras 12, 16]

“Conspiracy May Lie Not in Acts Alone, But in Knowing Omissions” — Court Emphasises Public Duty Under G.O. 163/80

Justice Badharudeen underscored the statutory responsibility of Building Inspectors to detect and prevent illegal constructions under G.O. (MS) 163/80/LA.SWD dated 06.07.1996, and held that the revision petitioner wilfully failed in this duty, enabling the illegal construction to proceed unchecked.

“Clause VII (b)(1) of the Government Order makes it a mandatory duty to detect unauthorized constructions. A four-storey building cannot rise overnight. The omission of the petitioner enabled the structure to be completed under the guise of a renovation.” [Para 17]

The Court also noted that even after the second complaint dated 25.11.2006, another inspector had to be deputed to issue the Stop Memo, further affirming the petitioner’s inaction.

“Pre-Trial Stage Not Meant for Detailed Defence” — Kerala High Court Reiterates Limits of Revisional Interference

In rejecting the petitioner's plea that she was unaware of the complaint or that she acted later, the Court clarified that such factual controversies cannot be resolved at the discharge stage and must be addressed during trial.

“Whether the petitioner saw the complaint or acted in good faith is a matter for trial. What matters at this stage is that there is credible material raising strong suspicion of her involvement.” [Para 11]

The Court also referenced the Supreme Court’s dismissal of SLP No. 1694/2024 filed by the 6th accused, and the High Court’s earlier rejection of discharge in Crl. R.P. No. 806/2025, noting that the officials were collectively charged for abetting the offence by permitting a façade of renovation while actual illegal construction took place.

Discharge Denied; Trial to Proceed Without Further Delay

Summing up, the Court concluded that the petitioner’s conduct, omission, and dereliction of duty, when seen in the context of the heritage zone restriction and ongoing conspiracy, justified her prosecution and did not warrant interference under revisional jurisdiction.

“Prima facie, the involvement of the revision petitioner as part of the conspiracy is well made out. The discharge plea cannot succeed.” [Para 12]

The Court thus dismissed the criminal revision petition, vacated the interim stay, and directed the Special Court to expedite the trial.

Date of Decision: 27 October 2025