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2000 DIGILAW 167 (KER)

T. K. Sankaran Kutty v. State Of Kerala

2000-03-20

A.R.LAKSHMANAN, D.SREEDEVI

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Judgment :- Dr. AR, LAKSHMANAN, J. Heard Mr. Bhaskaran Pillai for the appellant and Mr. Alexander Thomas, Government Pleader for the respondents. 2. The appellant as petitioner filed O.P. No. 4437 of 2000 to quash Ext. P5 government order and Ext. P6 order passed by the Enquiry Commissioner and Special Judge, Thrissur in C.M.P. No. 5 of 2000 in C.C. No. 3 of 1998 dated 31st January, 2000 and to declare that the continuation of the proceedings in C.C. No. 3 of 1998 now pending before the Vigilance Court and Enquiry Tribunal is an abuse of the process of Court. A preliminary investigation was conducted against the appellant who was working as an Assistant Surgeon in the District Hospital, Thrissur on the basis of a complaint Ext. P1 filed by one Sabu Sadanandan. Investigation was conducted by the Inspector attached to Vigilance and Anti-Corruption Bureau, Thrissur and on culmination of the same the Deputy Superintendent attached to the Vigilance and Anti-Corruption Bureau, Thrissur registered Crime Case No. 7/96 against the appellant under S. 13(i)(d) read with S. 13(2) of the Prevention of Corruption Act, 1988. Investigation in the offence was thereupon conducted by two Inspectors who were examined as P.W. 7 and P.W. 8 in C.C. No. 3 of 1998. He was also charge-sheeted by the Vigilance and Anti-Corruption Bureau. As per S. 17(3) of the Prevention of Corruption Act, 1988, an offence under the Prevention of Corruption Act committed by a public servant can be investigated only by a Police Officer not below the rank of a Deputy Superintendent of Police. During examination of the Deputy Superintendent of Police, namely, the officer who was examined as P.W. 6 in the Crime Case, it was revealed that the investigation in the case was conducted by a Circle Inspector C.W. 1, as authorised by the Deputy Superintendent of Police. The appellant thus came to know the illegality committed by the investigating agency only when the officer who registered the case was examined before Court. After obtaining the attested copy of the deposition the appellant filed a petition during the trial stage itself against the illegality in the investigation. Thereupon the prosecution filed Ext. The appellant thus came to know the illegality committed by the investigating agency only when the officer who registered the case was examined before Court. After obtaining the attested copy of the deposition the appellant filed a petition during the trial stage itself against the illegality in the investigation. Thereupon the prosecution filed Ext. P5 government order by which all the Circle Inspectors of the State were authorised to conduct investigation in the offences under the Prevention of Corruption Act committed by a public officer which is against the spirit of S. 17 of the Prevention of Corruption Act. The Enquiry Commissioner and Special Judge rejected the petitioner's application on the ground that the investigation conducted by the Circle Inspector is valid since it is authorised by the Government under the proviso to S. 17 of the Prevention of Corruption Act. It was also held that the said investigation has not prejudiced the accused appellant. The appellant challenged the Government order Ext. P5 and the order passed by the Enquiry Commissioner and Special Judge under Ext. P6. 3. In Ground G in the original petition it is stated as follows :- "What is contemplated in the proviso is that the Government can in the appropriate case either by general or special order appoint a police officer for conducting investigation under the Prevention of Corruption Act a Police Officer mentioned therein is a named officer and general order for conducting investigation under some special circumstance. By invoking the powers conferred by the proviso the Government cannot make the main provision a mockery and can permit all inspectors in the State to conduct investigation. If harmonious construction is adopted by giving life to all the provisions then only a particular police officer alone can be appointed by invoking the proviso. The State Government is denying power for legislating over the files by virtue of the proviso. The guidelines prescribed in the main provision and the object envisaged in the preamble are to be taken note of while legislating over this field. The present order Ext. P5 is bad due to excessive legislation also." The learned counsel for the appellant contended that an incompetent investigating officer has conducted the preliminary investigation and arrived at a finding to proceed with the prosecution and thereupon conducted the investigation. The present order Ext. P5 is bad due to excessive legislation also." The learned counsel for the appellant contended that an incompetent investigating officer has conducted the preliminary investigation and arrived at a finding to proceed with the prosecution and thereupon conducted the investigation. J. B. Koshy, J. held that the investigation conducted was not in violation of S. 17 of the Prevention of Corruption Act and that there is no irregularity or illegality in the findings rendered by the Special Judge. The learned Judge dismissed the original petition without prejudice to the rights of the appellant challenging the final order or taking steps as provided under the Criminal Procedure Code. The learned Judge has also dismissed the original petition on the ground that the investigation is already over and the charge sheet has also been filed and that at this distance of time there is no ground to quash Ext. P6. Being aggrieved the petitioner preferred the above writ appeal. 4. Mr. Bhaskaran Pillai and the Government Pleader were heard for the respective parties. 5. Mr. Bhaskaran Pillai submitted that the learned single Judge has failed to consider the following aspects of the matter : (a) The learned Judge has not considered the scope and object of promulgating S. 5A of the Prevention of Corruption Act which was incorporated into the statute book by an amendment made in the year 1952 as explained by the Supreme Court in AIR 1959 SC 707 : (1959 Cri LJ 920) and AIR 1968 SC 1292 : (1968 Cri LJ 1484). (b) The object of the legislature in enacting S. 5A was to see that the investigation of the offences punishable under sections 161, 165 or 165A, IPC as well as those under S. 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of Deputy Superintendent or above. No doubt S. 5A also provides for an alternative procedure. An officer below the rank of Deputy Superintendent can investigate those offences if he obtains previous permission of the First Class Magistrate. (c) By judicial pronouncement guidelines are made against arbitrary exercise of the power in granting sanction to junior officers to investigate the offences under the Prevention of Corruption Act. For exercising the powers conferred under S. 17 of the Prevention of Corruption Act the authorities had to take into consideration relevant circumstances envisaged in the section. (c) By judicial pronouncement guidelines are made against arbitrary exercise of the power in granting sanction to junior officers to investigate the offences under the Prevention of Corruption Act. For exercising the powers conferred under S. 17 of the Prevention of Corruption Act the authorities had to take into consideration relevant circumstances envisaged in the section. This position is applicable to Government with equal or more force when they are granting exemption to the general rule by invoking the provisions in the proviso. (d) By the passing of Ext. P5 drawing powers under the proviso, the enactment on the main section was nullified. The proviso cannot have an overriding effect than the main section itself and that a proviso can be considered only as an exemption clause to the main section. 6. In support of his contention Mr. Bhaskaran Pillai placed reliance on AIR 1959 SC 1012 : (1959 Cri LJ 1231), AIR 1964 SC 221 : (1964 (1) Cri LJ 140), AIR 1968 SC 1292 : (1968 Cri LJ 1484), (2000) 1 Ker LT 311 : (2000 Cri LJ 1636), (1999) 9 JT (SC) 242, AIR 1989 SC 155, AIR 1988 SC 2230, AIR 1993 SC 2123 and AIR 1991 SC 1406. 7. Per contra the learned Government Pleader has raised a preliminary objection in regard to the maintainability of the writ petition which has been filed to quash a judicial decision rendered in the instant case by the Enquiry Commissioner and Special Judge in C.M.P. No. 5 of 2000 in CC No. 3 of 1998. It is also submitted that the writ petition filed by the appellant is belated and barred by laches. He would also submit that the appellant/petitioner has neither challenged the validity of the first proviso to S. 17 nor can he successfully make any such challenge against the vires of that provision. Section 17 of the Prevention of Corruption Act, 1988 reads as follows :- "17. Persons authorised to investigate. He would also submit that the appellant/petitioner has neither challenged the validity of the first proviso to S. 17 nor can he successfully make any such challenge against the vires of that provision. Section 17 of the Prevention of Corruption Act, 1988 reads as follows :- "17. Persons authorised to investigate. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police Officer below the rank, - (a) in the case of Delhi Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of S. 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a Police Officer of equivalent rank. investigate any offence punishable under this Act, without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant : Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant : Provided further that an offence referred to in Clause (e) of sub-section (1) of S. 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police." Before construing the section and the other judgments cited, it is useful to refer the action taken by the investigating agency on the allegations raised in the complaint by Sabu Sadanandan as ordered by Government vide letter No. 1130/G2/96/Vig. dated 29-2-1996. In this case it is clearly stated in the statement filed by the second respondent that after completing the enquiry the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur, sent a report to the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram on 16-4-1996. On the basis of this report the Director, VACB, Thiruvananthapuram, directed the Deputy Superintendent of Police to register a case against the appellant vide proceedings dated 6-11-1996. Accordingly a case in VC. On the basis of this report the Director, VACB, Thiruvananthapuram, directed the Deputy Superintendent of Police to register a case against the appellant vide proceedings dated 6-11-1996. Accordingly a case in VC. 7 of 1996 under S. 7 of the Prevention of Corruption Act was registered against the appellant, who was working as Assistant Surgeon, District Hospital, Thrissur, on 28-11-1996. The case was registered by the then Deputy Superintendent of Police (PW. 6), who was the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur during 24-7-1996 to 10-11-1997. The then Deputy Superintendent of Police authorised one K. A. George (P.W. 8) Inspector of Police, Vigilance and Anti-Corruption Bureau, Thrissur, the investigation of the case. P.W. 8 was the Inspector of Police, Vigilance and Anti-Corruption Bureau, Thrissur during 14-11-1994 to 26-8-1997 and again Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Thrissur since 29-12-1997. P.W. 8 in his capacity of Inspector of Police, conducted the investigation of the case during 29-11-1996 to 22-3-1997. After completing the investigation P.W. 6 sent a factual report regarding the details of investigation to the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram on 31-3-1997. Later sanction order to prosecute the accused for the case was issued by the Government vide G.O. (MS) No. 71.97/Vig. dated 20-10-1997. After getting the prosecution sanction order the Inspector of Police, P.W. 7 questioned the Under Secretary, Vigilance Department on behalf of the Additional Chief Secretary, who issued the prosecution sanction order. After that P.W. 8 in the capacity of Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Thrissur, filed charge sheet against the accused before the Enquiry Commissioner and Special Judge, Thrissur on 31-1-1998. The Special Judge accepted the charge sheet and had taken the case on file as C.C. No. 3 of 1998. Subsequently trial of the case was commenced. On the side of the prosecution P.Ws. 1 to 8 were examined and Exts. P1 to P12 were marked. After the close of the prosecution evidence, the accused was questioned under S. 313, Cr.P.C. on 1-6-1999. The case was posted for defence evidence on 3-7-1999. On 8-12-1999 defence witness DW. 1 was examined and Exts. D1 and D2 were marked. It is now stated that the case is posted to 6-3-2000 for defence evidence. It is stated that P.W. 8 has conducted the major part of the investigation. The case was posted for defence evidence on 3-7-1999. On 8-12-1999 defence witness DW. 1 was examined and Exts. D1 and D2 were marked. It is now stated that the case is posted to 6-3-2000 for defence evidence. It is stated that P.W. 8 has conducted the major part of the investigation. The role of P.W. 7 is limited to questioning the Under Secretary on behalf of the prosecution, sanctioning authority. P.W. 6 in the capacity of Deputy Superintendent of Police, had supervised the investigation conducted by P.W. 8 and gave necessary direction from time to time. It is also submitted that the case diaries of the investigation were also submitted to the Deputy Superintendent of Police, who after scrutiny, forwarded the same to the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kochi. Further every month the investigation of the case conducted by the Inspector of Police is reviewed by the Deputy Superintendent of Police and necessary instructions given to the Inspector. The review report of the investigation of cases were also sent to the Director by the Deputy Superintendent of Police every month. The investigation in this case conducted by the two Inspectors of Police, has been supervised by the Deputy Superintendent of Police. It is submitted by Mr. Alexander Thomas, learned Government Pleader that as per Ext. P5 statutory notification dated 2-3-1993 issued as S.R.O. No. 790 of 1993, the power of investigation has been conferred on Police Officers not below the rank of Inspector of Police to investigate any offence punishable under the Prevention of Corruption Act without the order of the Magistrate of the First Class or to make arrest therefor without a warrant within the area of jurisdiction of the particular police station to which the Police Officer is attached, provided that the offence referred to in Clause (e) of sub-section (1) of S. 13 of the above said Act shall not be investigated without the order of a Police Officer not below the rank of a Superintendent of Police. The above statutory notification as per Ext. P5 has been issued by the State Government in exercise of its powers conferred under the first proviso to S. 17 of the Prevention of Corruption Act, 1988. The said Act including S. 17 thereof and its first proviso has been enacted by the Parliament. The above statutory notification as per Ext. P5 has been issued by the State Government in exercise of its powers conferred under the first proviso to S. 17 of the Prevention of Corruption Act, 1988. The said Act including S. 17 thereof and its first proviso has been enacted by the Parliament. As rightly pointed out by the learned Government Pleader the petitioner has not challenged the validity of the first proviso to S. 17 nor can he challenge the vires of that provision. The petitioner in the original petition has only prayed for quashing of Ext. P5 notification and Ext. P6 judicial order. 8. The operative portion of S. 17 lays down that no police officer below the rank of Deputy Superintendent of Police or a Police Officer of an equivalent rank shall investigate any offence punishable under the Act without the order of a Metropolitan Magistrate, or the Magistrate of the First Class, as a case may be or make any arrest therefor without a warrant. As per the first proviso to S. 17, it is provided that if a Police Officer not below the rank of Inspector of Police is authorised by the State Government on this behalf by the general or special order, he may investigate without the order of a Metropolitan Magistrate or the Magistrate of the First Class, as the case may be, or make arrest therefore, without a warrant. Therefore, as per the operative portion of S. 17 any Police Officer who is even below the rank of Inspector of Police can be authorised by the Magistrate for investigation as envisaged in that section. The Parliament in its wisdom has conferred power on the State Government, as per the first proviso to S. 17, to empower Police Officers not below the rank of Inspector of Police, for investigation of the offence under the Act. Thus the first proviso to S. 17 is not in any way abridging or nullifying the operative portion of S. 17 of the Act. It is only in lawful exercise of the powers conferred under the first proviso to S. 17 that the State Government has issued the statutory notification as per Ext. P5 empowering the Police Officers not below the rank of Inspector of Police for conducting the investigation. Ext. P5 reads as follows :- "Government of Kerala Vigilance (C) Department NOTIFICATION No. 12094/C1/88/Vig. P5 empowering the Police Officers not below the rank of Inspector of Police for conducting the investigation. Ext. P5 reads as follows :- "Government of Kerala Vigilance (C) Department NOTIFICATION No. 12094/C1/88/Vig. Thiruvananthapuram, 2nd March 1993 S.R.O. No. 790-93. - In exercise of the powers conferred by the first proviso to Section 17 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988), the Government of Kerala hereby authorise police officers not below the rank of an Inspector of Police to investigate any offence punishable under the said Act without the order of a Magistrate of the First Class or to make arrest therefor without a warrant within the area of jurisdiction of the particular police station to which the police officer is attached for purposes of investigation, provided that an offence referred to in clause (e) of sub-section (1) of S. 13 of the above said Act shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. By order of the Governor C. P. Nair Commissioner and Secretary (Home and Vigilance) Explanatory Note. (This does not form part of the notification, but is intended to indicate its general purport). As per S. 17 of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988), investigation of any offence punishable under the Act, or any arrest therefor without a warrant within the State of Kerala can be made only by a Deputy Superintendent of Police or a Police Officer of equivalent rank. But as per the powers conferred by the first proviso of S. 17 of the Act, the State Government is competent to issue a general or special order authorising a Police Officer not below the rank of Circle Inspector of Police to investigate any such offence. But as per the powers conferred by the first proviso of S. 17 of the Act, the State Government is competent to issue a general or special order authorising a Police Officer not below the rank of Circle Inspector of Police to investigate any such offence. Hence as per the powers conferred on the State Government in the first proviso of S. 17 of Prevention of Corruption Act, Government propose to authorise Inspectors of Police in the Vigilance Department to investigate any offence punishable under the P.C. Act 1988 without the orders of a Magistrate of the First Class, or to effect an arrest therefor without a warrant, within the area of jurisdiction of the particular Police Station to which the Police Officer is attached for the purpose of investigation, provided that an offence referred to in clause (e) of sub-section (1) of S. 13 shall not be investigated without the order of a Police Officer not below the rank of a Superintendent of Police. The notification is intended to achieve the above purpose." Thus it is seen that the investigation conducted in this case by the two inspectors of police P.Ws. 7 and 8 is with proper authority and jurisdiction and therefore, the petitioner cannot challenge the competence of the officers who conducted the investigation. This is on merits. 9. We shall now consider the argument of the learned Government Pleader that the writ petition is highly belated and barred by laches. We have already dealt with in paragraph supra in regard to the complaint given by the complainant, the investigation ordered by the State and the investigation done by the Police Department and the sanction order passed by the State to prosecute the accused and the examination of witnesses by the Special Court. We have also considered the scope of the first proviso to S. 17 of the Act and the jurisdiction of any Police Officer below the rank of Inspector of Police to conduct the investigation as envisaged in the said section. It was also found that the investigation conducted by the two investigating officers is with proper authority and jurisdiction and therefore, the same cannot be challenged. In this case the accused/appellant has come forward with the plea not at the earlier stage, but at the belated stage. It was also found that the investigation conducted by the two investigating officers is with proper authority and jurisdiction and therefore, the same cannot be challenged. In this case the accused/appellant has come forward with the plea not at the earlier stage, but at the belated stage. As already noticed P.W. 8 Inspector of Police had questioned the accused appellant on 3-2-1997 and the appellant did not protest before the competent criminal Court alleging that the investigation conducted by the Inspector of Police lacks competence. The case of the appellant is that he came to know that the investigation is conducted by the officers of the rank of Inspectors of Police only when P.W. 6 was cross-examined before the trial Court on 29-4-1999. The learned Government Pleader has pointed out that the contention of the appellant that he came to know about this aspect only on 29-4-1999 itself is not correct since the appellant was questioned by P.W. 8 Inspector of Police as early as on 3-2-1997 and the appellant did not make any protest before the competent authorities. Even assuming that the appellant came to know of this aspect only on 29-4-1999, still it is submitted that his challenge is belated since the appellant filed Ext. P4 petition before the Special Judge only as late as on 3-1-2000 and the time lag between 29-4-1999 (Ext. P2) and the filing of Ext. P4 petition dated 3-1-2000 is about 8 1/2 months. Thus it is seen that the plea taken by the respondents that the Original Petition is highly belated and barred by delay and laches is well founded. 10. It may also be noticed that the crime was registered by the Deputy Superintendent of Police and the charge sheet was also filed by him. The investigation conducted by the Inspectors of Police has been supervised by the Deputy Superintendent of Police and the monthly report of the investigation is approved by the Deputy Superintendent of Police and is also reviewed and approved by the Superintendent of Police as well as the Director of Vigilance Investigation who is of the rank of Addl. Director General of Police. Director General of Police. It may be noted that the monthly review reports forwarded to the Deputy Superintendent of Police through the Superintendent of Police to the Director are firstly approved by an officer not below the rank of Deputy Inspector General of Police before sending the same for approval by the Director thus the entire steps taken in the investigation is supervised, reviewed and approved by a hierarchy of officers from the rank of Deputy Superintendent of Police to the Director of Vigilance Investigation. We are, therefore, of the opinion that there has been no impropriety or unfairness in the conduct of the investigation. The Inspectors of Police are lawfully empowered for investigation as per the statutory notification Ext. P5. The appellant has questioned the correctness of Ext. P5 notification at the fag end of the trial and after completion of the prosecution evidence, the questioning of the accused under S. 313 of Cr.P.C., the submission of written statement of defence by the accused-appellant and even the examination of the first defence witness. It is argued by the learned Government Pleader that only the examination of any other defence witness alone remains and followed by arguments. Thus it is submitted that the present attempt of the accused is to delay the trial. 11. Next we shall consider the argument of the learned Government Pleader in regard to the maintainability of the writ petition filed against the judicial decision of a Special Judge. The learned counsel for the appellant argued that his main prayer is to quash Ext. P5 notification and that the prayer to quash Ext. P6 is only ancillary to the main prayer. We are unable to accept the above contention. As already pointed out, the vires/validity of the first proviso to S. 17 has not been challenged. Ext. P6 is a judicial decision rendered by the Special Judge on merits and after hearing the counsel appearing on either side. The Supreme Court in AIR 1967 SC 1 (Seven Judges Bench), has conclusively held that no writ will lie for quashing the judicial decision of a Court of law. This decision has also been relied on by Division Bench of this Court on (1992) 1 Ker LT 404, 1973 Ker LT 996 and 1968 Ker LT 60. The Supreme Court in AIR 1967 SC 1 (Seven Judges Bench), has conclusively held that no writ will lie for quashing the judicial decision of a Court of law. This decision has also been relied on by Division Bench of this Court on (1992) 1 Ker LT 404, 1973 Ker LT 996 and 1968 Ker LT 60. Since a writ petition filed to quash a judicial decision rendered on merits in a proceedings under Art. 226 of the Constitution is not maintainable as held by the Supreme Court in the above decision and followed by this Court, we dismiss the writ petition on the question of maintainability. We also dismiss the writ petition on the ground of laches. The investigation was commenced as ordered by the Government in its G.O. dated 29-2-1996 and continued thereafter and completed. The charge sheet was also filed and witnesses were examined. The matter is adjourned for argument and at this stage, this writ petition has been filed on February 9, 2000. We are unable to accept the contention of the appellant that he came to know of the illegality committed by the investigating agency only when the officer who registered the case was examined before the Court. 12. Counsel for the appellant cited certain decisions. Those decisions, in our opinion, have no relevance in the facts of this case. The other decisions also need not be considered in view of our findings on the ground of maintainability of the writ petition and the dismissal of the writ petition on the ground of laches. 13. It has been held by the Supreme Court that the accused cannot challenge the legality of the investigation and the trial by merely making out a point that the investigation is conducted by an officer below the rank of Deputy Superintendent of Police but that the accused has also to plead and prove that substantial prejudice has been caused to him due to the investigation conducted by the officers below the rank of Deputy Superintendent of Police. The appellant, in our opinion, has miserably failed to plead and prove that prejudice in this regard either before the trial Court in the petition submitted by him on 3-1-2000 or even in this writ proceedings. The contention put forward by Mr. The appellant, in our opinion, has miserably failed to plead and prove that prejudice in this regard either before the trial Court in the petition submitted by him on 3-1-2000 or even in this writ proceedings. The contention put forward by Mr. V. Bhaskaran Pillai, at the time of hearing that the fact that the investigation was conducted by officers below the rank of Deputy Superintendent of Police would ipso facto amount to prejudice is absolutely untenable in law and logically fallacious. The Supreme Court has also held that the affected party has to come forward with the plea before the Court at the first earliest stage. In the instant case the accused has approached this Court nearly after four years after the investigation and trial which cannot be countenanced at all. The writ appeal therefore, fails and is dismissed. No costs. Appeal dismissed.