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2001 DIGILAW 227 (KER)

Haridas v. State of Kerala

2001-04-11

G.SASIDHARAN, K.S.RADHAKRISHNAN

body2001
Judgment :- G. Sasidharan, J. The question which arises for consideration is whether a Criminal Court in which a refer report is filed by the investigating agency can give direction to the investigating agency to file a final report charge-sheeting the accused. 2. Crime was registered against the appellant under Ss.7 and 13(1)(d) read with S.13(2) of the Prevention of Corruption Act, 1988 thereinafter referred to as "the act" ) in the Vigilance Police Station, Malappuram on the basis of a complaint received from one Sulaiman. At that time, the appellant was working as Gynecologist in the District Hospital, Manjeri, Malappuram District. The petitioner was arrested in connection with the above crime and was produced before the District and Sessions Judge, Kozhikode who was holding additional charge of Enquiry Commissioner and Special Judge, Vigilance, Kozhikode, The petitioner was remanded to judicial custody and he was later released on bail. 3. The District Medical Officer of Health, Manjeri reported the matter to the Director of Health Services, Thiruvananthapuram who in turn gave information to the Vigilance(C) Department, Thiruvananthapuram for a detailed enquiry. Memo of charges and statement of allegations were served on the appellant who gave a detailed reply to the same and the Government made an order on 1.9.1999 directing the Vigilance Tribunal, Kozhikode to enquire into the charges made against the appellant in detail under the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 (hereinafter referred to as "the rules"). The Vigilance Tribunal look the case on its file as Enquiry Case No. 9/99 and issued summons to the appellant who appeared before him in pursuance of the summons. The case before the Vigilance Tribunal is being adjourned on the ground that the connected records are before the Special Judge, Kozhikode. 4. The Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Malappuram submitted final report in the Court of the Enquiry Commissioner and Special Judge saying that further action in the case was being dropped with a request to transfer the First Information Report and connected records to the Vigilance Tribunal, Kozhikode. On receiving such a report, the Enquiry Commissioner and Special judge directed the Deputy Superintendent of Police to file a final report charge-sheeting the case against the appellant. On receiving such a report, the Enquiry Commissioner and Special judge directed the Deputy Superintendent of Police to file a final report charge-sheeting the case against the appellant. The Deputy Superintendent of Police brought to the notice of the Director, Vigilance and Anti Corruption Bureau the direction given by the Special Judge and the Director made recommendation for prosecution of the appellant after obtaining sanction for prosecution. The Original Petition was filed for quashing Ext. P4 order made by the Enquiry Commissioner and Special Judge directing the police to file charge sheet. The other prayer in the Original Petition is to give a direction to the Enquiry Commissioner and Special Judge to transfer the First Information Report in VC 7/79 of VACB, Malappuram to the Vigilance Tribunal, Kozhikode. The Original Petition was dismissed by the learned Single Judge on finding that there was no reason for quashing Ext. P4 order of the Enquiry Commissioner and Special Judge. 5. The final report submitted in the court of the Special Judge makes it clear that there was a direction by the Director, Vigilance and Anti Corruption Bureau, Thiruvananthapuram to submit final report before the Enquiry Commissioner and Special Judge saying that further action against the appellant was being dropped. There is also reference in the final report given in court by the Deputy Superintendent of Police that there was an order made by the Government directing the Vigilance Tribunal, Kozhikode to conduct a detailed enquiry in accordance with the Rules and to send report to the Government with the findings and recommendations. It is in the light of the above fact that the Director, Vigilance and Anti Corruption Bureau is seen to have given a direction to the Deputy Superintendent of Police to submit final report before the Enquiry Commissioner and Special Judge, Kozhikode dropping the vigilance case taken against the appellant. The decision taken by the investigating agency to drop the proceedings against the appellant is not on the basis of the materials collected during the course of investigation. Investigation is being conducted in a crime for the purpose of collecting materials to ascertain whether the allegations regarding commission of the offence by the accused is correct or not. The investigating agency is expected to file final report in court if it is. Investigation is being conducted in a crime for the purpose of collecting materials to ascertain whether the allegations regarding commission of the offence by the accused is correct or not. The investigating agency is expected to file final report in court if it is. of the opinion that on the basis of the materials collected during the course of investigation, it is possible to say that the accused has committed the offence. 6. When the investigating agency gives a final report in Court stating that during the course of investigation, it was not revealed that the accused actually committed the offence, the court is not bound to accept the report of the investigating agency. The court would definitely go into the materials available on record and either accept the final report given by the police in which it is stated that the accused need not be prosecuted or the court can differ from the opinion expressed by the investigating agency and proceed to take cognizance of the offence. The court can take cognizance of the offence under S.190(1)(b) Cr.P.C. even though the investigating agency gave a refer report. On closing the investigation, it is for the officer who conducted the investigation to form his own opinion, uninfluenced by any direction given by anybody, regarding the question whether the accused has to be brought before the Court for trial. That does not mean that any officer superior in rank to the officer who conducted investigation cannot give any direction regarding conduct of the investigation. Superior officer is justified in verifying the investigation conducted in the crime and in giving direction to the officer who actually conducts investigation. But at the time of giving final report, it is necessary that the officer who gives the report applies his mind uninfluenced by any other external agency in forming an opinion as to whether the accused has to be send to court for trial or not. 7. The decision taken by the court to take cognizance of the offence or not also has to be a decision of the Court and it is not necessary that the Court has to agree with the conclusion of the police. The Magistrate may reach a conclusion different from that of the investigating agency if he finds, on going through the materials, that the conclusion arrived at by the investigating agency cannot be accepted. The Magistrate may reach a conclusion different from that of the investigating agency if he finds, on going through the materials, that the conclusion arrived at by the investigating agency cannot be accepted. It is the jurisdiction of the Magistrate to decide whether the materials placed by the investigating agency are sufficient to take cognizance of the offence or not. That power to take cognizance cannot be controlled by the investigating agency. It is for the investigating agency to decide whether on the basis of the materials collected during investigation a report has to be given to the court requesting to take cognizance of the offence or not and that power of the investigating agency cannot be controlled by the Court. 8. In Abhinandan Jha v. Dinesh Mixhra, AIR 1968 SC 117, it was held by the Supreme Court that when the police submits a report stating that no case is made out for sending up the accused for trial, the Magistrate has no power to call upon the police to submit a challenge sheet. It was also held in the above decision that the Magistrate who disagrees with the report of the police can take cognizance of the office or any order further investigation under S.156(3) Cr.P.C. The direction given by the Enquiry Commissioner and Special Judge to the investigating agency to file final report charge-sheeting the case against the appellant is not correct. 9. R.15 of the Kerala Civil Services (Classification, Control and appeal) Rules, 1960 deals with the procedure for imposing major penalties. Sub-r.(2)(b) of the said Rules reads as follows: "The formal enquiry may be conducted by, (i) the Government; (ii) the appointing authority; (iii) the disciplinary authority; (iv) the head of the department or any officer of the department empowered by the appointing authority or the head of the department; or (v) a special officer or tribunal appointed by the Government for the purpose or a tribunal generally appointed for making enquiries into the conduct of Government servants." A reading of the above sub-rule makes it clear that enquiry can be conducted by a special officer or tribunal appointed by the Government for the purpose. It is also possible that enquiry can be conducted by a tribunal generally appointed for making enquiries into the conduct of Government servants. Vigilance Tribunal is a tribunal generally appointed for making enquiries into the conduct of Government servants. It is also possible that enquiry can be conducted by a tribunal generally appointed for making enquiries into the conduct of Government servants. Vigilance Tribunal is a tribunal generally appointed for making enquiries into the conduct of Government servants. So, the enquiry that is being conducted by the Vigilance Tribunal is a formal enquiry conducted as provided in R.15 of the Kerala Civil Services (Classification, Control and appeal) Rules. 10. The Kerala Civil Services (Classification, Control and appeal) Rules was issued by the Government of Kerala in exercise of the power conferred by the proviso to Art.309 of the Constitution of India. R.4 of the Rules says that the Government may refer to the Tribunal any case or class of cases, which they consider, should be dealt with by the Tribunal. The discretion to refer to the Tribunal any case is with the Government. But in the case of Gazetted officers in respect of matters involving corruption, the Government has to refer the case to the Tribunal. It is so stated in the proviso to R.4 of the Rules. The proviso says that all cases relating to Gazetted officers in respect of matters involving corruption on the part of such officers in the discharge of their official duties shall be referred to the Tribunal. R.8 of the Rules deals with the procedure to be followed by the Vigilance Tribunal. In sub-r.10 of R.8 of the Rules, it is stated that after taking evidence and hearing arguments, the Tribunal has to record its findings in respect of each charge and in case the accused Government servant is held guilty of any charge, it shall recommend to Government the punishment to be imposed. On receipt of the report, the Government can either consider the report of the Tribunal and the records of enquiry or send the report to the Disciplinary authority concerned for further action and final disposal in accordance with the rules. It is obvious from the above provisions that what is done by the Vigilance Tribunal is an enquiry in connection with the disciplinary proceedings. In Ext. P3 final report given by the Deputy Superintendent of Police in the conduct of the Enquiry Commissioner and Special Judge, there is a request to transfer the First Information Report and connected records to the Vigilance Tribunal, Kozhikode. The First Information Report was given in the Criminal Court on registering the crime. In Ext. P3 final report given by the Deputy Superintendent of Police in the conduct of the Enquiry Commissioner and Special Judge, there is a request to transfer the First Information Report and connected records to the Vigilance Tribunal, Kozhikode. The First Information Report was given in the Criminal Court on registering the crime. Even if the final report given by the police after completing the investigation is to drop the proceedings, the First Information Report cannot be transferred to the Vigilance Tribunal for the reason that the Vigilance Tribunal may not be able to do anything in furtherance of the First Information Report because what the Vigilance Tribunal does is to conduct a formal enquiry in connection with the disciplinary proceedings initiated against a Government servant as per the provisions of the Kerala Civil Services (Classification, Control and appeal) Rules. 11. This is a case in which sanction for prosecution under S.19 of the Act is necessary. In case final report is filed charge-sheeting the accused, cognizance of the offence can be taken by the court only if there is sanction for prosecution. The direction given by the Special Judge to the police is to file a final report charge-sheeting the appellant. Such a direction implies that final report has to be filed charge-sheeting the accused after obtaining sanction for prosecution. Even though it is open to the Criminal court to form its own opinion disagreeing with the opinion of the investigating agency in the matter of taking cognizance of the offence, if the Criminal Court takes a decision to take cognizance of the offence, it is necessary that there has to be sanction by the Government for prosecution since the offence alleged to have been committed by the accused is punishable under the relevant provisions of the Act. Sanction for prosecution is such cases is a pre-requisite of taking cognizance of the offence. A provision has been incorporated in the Act mandating obtaining of sanction for the purpose of preventing unnecessary harassment of public servant. It is for the authority which has to grant sanction to apply its mind to the facts of the case and also to consider the materials and evidence collected during investigation and to take an independent decision regarding giving sanction for prosecution. It is for the authority which has to grant sanction to apply its mind to the facts of the case and also to consider the materials and evidence collected during investigation and to take an independent decision regarding giving sanction for prosecution. In taking a decision regarding giving of sanction, the authority should not be influenced by external force and the discretion to grant or not to grant sanction must vest with the sanctioning authority. That being the position, the court cannot compel or give direction to the sanctioning authority for granting sanction for prosecution. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, 1997 Crl. L.J. 4059 (Supreme Court), it was held by the Supreme Court that there was a direction given by the Court to give sanction for prosecution and the sanctioning authority was left with no choice except to sanction prosecution and in passing the order of sanction, it acted mechanically in obedience to the direction given by the court. In the above decision it was further held that no mandamus can be issued for giving sanction for prosecution. 12. The fourth respondent filed a statement in the Writ Appeal in which it is stated that the Government has taken a direction to cancel Ext. P2 order by which the enquiry was referred to the Vigilance Tribunal and to examine the matter afresh. At the time of arguments, it was submitted by the Additional Advocate General that the Government will be considering the question whether sanction for prosecution has to be granted or not. Ext. P4 order of the Enquiry Commissioner and Special Judge, Kozhikode is bad in law in so far as the direction in that order to the investigating agency is to file a final report charge-sheeting the case against the appellant. The Enquiry Commissioner and Special Judge may not be in a position to take cognizance of the offence on disagreeing with the investigating agency for the reason that for taking cognizance of the offence, sanction for prosecution is necessary. Since the Additional Advocate General submits that the question of granting sanction for prosecution is being considered by the Government, what the Enquiry Commissioner and Special Judge can do is to consider the question of taking cognizance of the offence in case final report is filed by the investigating agency after getting sanction for prosecution. Hence, this appeal is allowed on quashing Ext. Hence, this appeal is allowed on quashing Ext. P4 order of the Enquiry Commissioner and Special Judge to the extent it gave direction to the Investigating Officer to submit final report charge-sheeting the accused. The quashing of Ext. P4 to the extent mentioned above will not in any way prevent the Government from considering the question of granting sanction for prosecution or the investigating agency taking a decision regarding filing of final report in the event of the Government taking a decision for giving sanction for prosecution.