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2004 DIGILAW 149 (KER)

Biju C. Valiavanadan v. State of Kerala

2004-04-02

N.KRISHNAN NAIR

body2004
Judgment :- N. Krishnan Nair, J. This revision is directed against the order dated 29th September 2003 of the Enquiry Commissioner and Special Judge, Thrissur in C.M.P. No.354/2002. 2. The facts necessary for the disposal of the petition may be stated as follows: The petitioner filed a complaint before the Enquiry Commissioner and Special Judge, Thrissur against Sri.K. V.Thomas, the then Minister for Tourism and Fisheries, alleging that by abusing his position as a public servant he has acquired assets disproportionate to the known sources of his income. The Special Judge forwarded the complaint along with an identical complaint to the Director, Vigilance and Anti-Corruption Bureau, Thiruvananthapuram, for the purpose of conducting necessary preliminary vigilance enquiry and to submit a report as expeditiously as possible. Since there was delay in filing the report, the petitioner filed another petition before the Vigilance Judge alleging that the enquiry is deliberately delayed by the V.A.C.B. with a view to provide adequate opportunity for the public servant to manipulate documents and evidence in his favour. The petitioner wanted to proceed with the matter under S.156(3) of the Code of Criminal Procedure. By an order dated 26th June 2003, the Special Judge issued the following directions: (1) The Director of V.A.C.B. shall within 15 days report specifically whether, with respect to any of the allegations mooted against the public servant, without a detailed investigation, further details or materials prima facie could be collected at this stage or not. (2) If not, i.e., if detailed investigation is necessary, treated this order as the direction, the V.A.C.B. shall proceed under S.156(3)Cr.P.C.,without further direction from Court. (3) If the details could be collected through the enquiry the V.A.C.B. shall complete the enquiry within one month, i.e. not later, than 28th July 2003 and submit the report with entire records without seeking further time. The V. A.C.B. shall also submit weekly report of the progress of the enquiry to the Court. 3. Thereafter the petitioner approached this Court by filing O.P.No. 12987/2003 for a Writ of mandamus to direct the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Trivandrum, to complete the investigation as directed by the Special Judge, without any further delay. The V. A.C.B. shall also submit weekly report of the progress of the enquiry to the Court. 3. Thereafter the petitioner approached this Court by filing O.P.No. 12987/2003 for a Writ of mandamus to direct the Superintendent of Police, Vigilance and Anti-Corruption Bureau, Trivandrum, to complete the investigation as directed by the Special Judge, without any further delay. The V.A.C.B. appeared before this Court and prayed for some more time to complete the enquiry as directed by the Special Judge and undertook to file the final report after completion of the enquiry on or before 15th September, 2003, The prayer was granted and the investigating agency filed the report before the Vigilance Court on 12th September 2003. As per the enquiry report, the total value of assets acquired during the check period was Rs.55,56,282 and the total income during the check period was Rs.88,28,974. The total expenditure during the check period is assessed as Rs.35,73,896. According to the enquiry officer the excess of Rs.3,01,204 is comparatively small and there is no scope for registration of a vigilance case. The petitioner filed objections to the enquiry report. The learned Special Judge after hearing the parties and on a consideration of the report filed by the Superintendent of Vigilance found that the enquiry officer was fully justified in coming to the conclusion that there is no justification in continuing the proceedings and the further proceedings were dropped. The order dropping further proceedings in the case is seriously challenged in this revision. 4. The learned Counsel for the petitioner, Sri.G.Janardhana Kurup, strongly contended that the order of the Court below is clearly illegal and cannot be sustained either in law or on facts. According to the learned Counsel, since the Special Judge forwarded the complaints to the V.A.C.B. they could have registered a crime and investigated the case. According to him this cardinal aspect is not considered by the Court below and the learned Special Judge has committed a glaring illegality in formulating the order by approving the report of the Vigilance Officer. He further contended that the assessment of the report made by the Special Judge is defective and the learned judge blindly believed the version of the investigating officer. On the other hand, Sri. P.V. Madhavan Nambiar, the learned Director General of Public Prosecution supported the order and urged that there is no ground for interference. 5. He further contended that the assessment of the report made by the Special Judge is defective and the learned judge blindly believed the version of the investigating officer. On the other hand, Sri. P.V. Madhavan Nambiar, the learned Director General of Public Prosecution supported the order and urged that there is no ground for interference. 5. The first question raising for consideration is whether the Vigilance Officer was bound to register a case on receipt of the complaint forwarded by the Special Judge. It is seen that the learned Special Judge forwarded the complaint filed by the petitioner along with an identical complaint to the Director of Vigilance with a direction to conduct a preliminary enquiry. According to the learned Counsel for the petitioner when a complaint is forwarded to the investigating agency under S.156(3) of the CrLP.C., the investigating agency is bound to register a crime. He invited any attention to the decision of the Supreme Court in A.R. Antulay v. R.S. Nayak, AIR 1984 SC 718. In that case the Supreme Court held that a private complaint can be entertained by the Special Judge in respect of the offences committed by public servants under the P.C. Act In that case it was also held by the Supreme Court that except those specifically conferred and specifically denied, the Special Judge has to function as a court of original criminal jurisdiction not being hide bound by the terminological status description of Magistrate or a Court of Session. The Court of Special Judge being the Court of original criminal jurisdiction, the Special Judge can forward a complaint to the police for investigation under S.156(3) of the CrLP.C. No doubt when a complaint is forwarded to the police by a Magistrate under S.156(3) of the CrLP.C. for investigation, the police is bound to register a crime and investigate the case. But, when a complaint against a public servant alleging the commission of the offences under the Prevention of Corruption Act is forwarded to the Vigilance Officer, he is not bound to register a case immediately on receipt of the complaint. But, when a complaint against a public servant alleging the commission of the offences under the Prevention of Corruption Act is forwarded to the Vigilance Officer, he is not bound to register a case immediately on receipt of the complaint. In P.Sirajuddin v. State of Madras, AIR 1971 SC 520, it was held by the Supreme Court that before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. In view of the decision referred to above, only if the preliminary enquiry reveals prima facie offence of guilt of the public servant, the Vigilance Officer is bound to register a crime. If on an enquiry, the allegations are found to be baseless, the Vigilance Officer is not bound to register a case. But, he must send a report to the Special Judge and on a consideration of the report, the Special Judge can drop the proceedings. 6. The learned Counsel for the petitioner further contended that in this case since the Vigilance Officer failed to file the preliminary enquiry report within 15 days as directed by the Special Judge, a crime should have been registered and investigation should have been conducted. I cannot agree. As per the order dated 26th June 2003, the Director, V.A.C.B. was directed only to report whether without a detailed investigation, further details or materials could be collected at this stage or not. If further details or materials could not be collected, the V. A.C.B. was directed to proceed under S.156(3) of the CrLP.C., without further direction from Court. The petitioner cannot be heard to say that the V.A.C.B. violated the order of the Special Judge, in view of the order of this Court in O.P.No. 12987/2003. It was the petitioner who approached this Court for a direction to the Superintendent of Police, Vigilance and Anti-Corruption Bureau, to complete the enquiry as directed by the Special Judge without any further delay. This Court by order dated 11th July, 2003 directed the Superintendent of Police to submit the final report after completion of the enquiry before the Vigilance Court on or before 15th September, 2003. This Court by order dated 11th July, 2003 directed the Superintendent of Police to submit the final report after completion of the enquiry before the Vigilance Court on or before 15th September, 2003. Admittedly in this case, the final report, after completion of the enquiry, was filed before the Vigilance Court on 12th September, 2003. Therefore, it cannot be said that there is non-compliance of the order of the Vigilance Court. 7. I cannot also agree with the learned Counsel for the petitioner that the investigating officer should have filed a report under S.173 of the Crl.P.C. and that would have persuaded him to produce all materials connected with the enquiry before the Court. Preliminary /Vigilance enquiry is not investigation under S.156 of the Crl.P.C. In this case no investigation was conducted after registering a crime. Therefore, the investigating officer is not expected to file a report under S.173 of the Crl.P.C. S.173 contemplates the submission of the report, when the investigation is completed. An enquiry and investigation are not synonymous, but different. 8. According to the learned Counsel for the petitioner the Court below has misread and misinterpreted the report filed by the Enquiry Officer. He further contended that the lower Court blindly believed the version of the Enquiry Officer that the suspect Officer did not commit any corrupt activity in amassing assets disproportionate to his known source of income. In this case the Superintendent of Police, V.A.C.B., Thiruvananthapuram conducted a detailed enquiry into the allegations levelled against the suspect Officer. It is seen that the Enquiry Officer recorded the statement of 62 witnesses and has verified 128 documents. On going through the report, I am unable to agree with the learned Counsel for the petitioner that the enquiry conducted by the Officer is only to shield the suspect officer with mala fide intention. 9. In this connection it is relevant to note that the petitioner was given sufficient opportunity to file objections to the report and the Court below accepted the report only after considering the objections and also hearing the petitioner. The petitioner could not produce any reliable material before the Court below to substantiate his objections. In the absence of materials to support the allegation, the Court below had to accept the report. The petitioner could not produce any reliable material before the Court below to substantiate his objections. In the absence of materials to support the allegation, the Court below had to accept the report. When allegations were made in respect of amassment of wealth in disproportion to the known source of income against public men there should not be any unnecessary harassment or victimization. The Court must be satisfied that there are good and sufficient reasons for authorising the Vigilance Officer to conduct an investigation. 10. It is alleged that there are several instances of over valuation of income and under valuation of the assets of the petitioner. The learned Counsel for the petitioner pointed out that two properties purchased by the suspect officer at Thoppumpady junction are undervalued. It is seen that at Thoppumpady junction 8 cents of land and a building owned by the petitioner are valued at Rs.8 lakhs and another 6 cents of land and a building are valued at Rs.3.5 lakhs. It is true that the plinth area of these buildings were not physically measured. But it is gatherable from the report that the valuation was made taking into consideration the opinion of the Executive Engineer, P.W.D. Roads, Ernakulam. The Enquiry Officer also placed reliance on the assessment made by the Corporation for property tax. The extract of the property tax assessment register of the Cochin Corporation were also perused before the buildings were valued by the Enquiry Officer. 11. It is alleged that 16.10 cents of property situated at Vennala is also under valued by the Enquiry Officer. The value of the property is shown as Rs.1,93,000/-. According to the petitioner, one cent of property at Vennala would fetch Rs.50,000/-. But there is no material to support this contention. 12. The learned Counsel for the petitioner also pointed out that an independent villa constructed by the suspect Officer at Elamakkara is under valued. The area is having an extent of 6.128 cents and the value assessed is Rs.1,25,624. According to the learned Counsel, the property at Elamakkara would fetch Rs.two lakhs per cent. But, there is absolutely no material to show that the property would fetch Rs.2 lakhs per cent. No doubt to escape from stamp duty people may under value properties for the purpose of registration of documents. According to the learned Counsel, the property at Elamakkara would fetch Rs.two lakhs per cent. But, there is absolutely no material to show that the property would fetch Rs.2 lakhs per cent. No doubt to escape from stamp duty people may under value properties for the purpose of registration of documents. But the Enquiry Officer is not expected to value the property on the assumption that there is under valuation, unless there is cogent evidence to show that the property is under valued. As stated earlier before accepting the report, sufficient opportunity was given to the petitioner to substantiate his objections. But, he could not produce any material before the Court to show that the properties owned by the suspect Officer are under valued. 13. There is also an allegation that the suspect Officer is in the habit of getting air tickets booked by the persons who approached him for some help and subsequently cancelling the air tickets and appropriating the money. But, according to the Enquiry Officer, nobody was able to give a single instance for verification. Though the enquiry officer contacted the Air Lines Authorities they were unable to furnish information regarding the required details of reservation/ cancellation of air tickets by the suspect officer. According to the learned Counsel for the petitioner, there is tell tale evidence regarding this misconduct in the statements given by witness Nos. 6 and 42. Merely because two witnesses gave statement in support of this allegation without any material evidence to support the statements it cannot be said that the allegations are true. 14. Another allegation is regarding the purchase of a fleet of motor vehicles for M/s. Sherly Tours and Travels. But the enquiry revealed that the vehicles were purchased under the hire purchase agreement. According to the petitioner, at least Rs.50 lakhs would have been spent for the purchase of vehicles. It was found by the enquiry officer that this allegation is also baseless. I see no reason to take a different view. 15. The learned Counsel for the petitioner strongly contended that there are some materials gatherable from the report to support the criticism of the report which will prima facie show that the allegations levelled against the suspect officer are true. He contended that the enquiry officer should not have inflated the income of the suspect officer by including honorarium as income. The learned Counsel for the petitioner strongly contended that there are some materials gatherable from the report to support the criticism of the report which will prima facie show that the allegations levelled against the suspect officer are true. He contended that the enquiry officer should not have inflated the income of the suspect officer by including honorarium as income. It is pointed out that there is no documentary evidence to show that such honorarium was paid. I cannot agree. Admittedly the suspect Officer was the leader of various trade unions. It is seen that he had shown the honorarium as income in his income tax return for the year 1993. According to me, the enquiry officer was fully justified in including Rs.6,45,970 in the income of the suspect Officer. 16. Relying on the decision of the Supreme Court in C.S.D.Swami v. The State, AIR 1960 SC 7, it is contended that the travelling allowance cannot be taken as a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out of pocket expenses incidental to journeys performed. As observed by the Court below, the travelling allowance granted to a Government employee cannot be compared with the travelling allowance granted to a Member of Parliament. S.4 of the Salary, Allowances and Pension of Members of Parliament Act would support the finding of the enquiry officer that on journey by air M.P. will get 25 per cent of the flight charge in excess. Such excess payments are made for train journey also. The suspect Officer was a member of several committees and the sitting fees received by him as a Member of Parliament are also considered as the income of the suspect Officer. But, it is seen that the enquiry officer has taken only 40 per cent of the T.A. and D.A. as the income. The petitioner contends that 40 per cent of the saving of the suspect officer from the total allowance is unwarranted. According to the petitioner, it is a benevolent concession given to the suspect officer by inflacting his income including D.A., T.A. and honorarium. According to me, cogent reasons are given in. the report for including 40 per cent of the D.A., T.A. and also honorarium in the total income. 17. According to the petitioner, it is a benevolent concession given to the suspect officer by inflacting his income including D.A., T.A. and honorarium. According to me, cogent reasons are given in. the report for including 40 per cent of the D.A., T.A. and also honorarium in the total income. 17. I cannot agree with the learned Counsel for the petitioner that the learned Special Judge has misread and misinterpreted the report filed by the Superintendent of Police. I have carefully gone through the report and also the order of the Court below accepting the report. But, I am not in a position to say that the lower Court has misread or misinterpreted the report. There is nothing on record to indicate that the assets are under valued and underestimated. Merely because uncontroverted allegations in a complaint against a public man disclose the commission of offences under the P.C. Act, the Court is not justified in authorising an officer to conduct the investigation without reasons. On going through the report, it cannot be said that there is ground to suspect the commission of the alleged offence. Preliminary/Vigilance enquiry is not investigation under S.156 of the Crl.P.C. Before invoking S.156 (3) of the Crl. P.C., the Court has to satisfy, on the allegations made, that the offence has been committed prima facie. In this case in the absence of materials to support the criticism of the report, the lower Court was fully justified in accepting the report and dropping the proceedings. If the petitioner is aggrieved by the impugned order, he is at liberty to file a protest complaint or a second complaint. The Court cannot authorise the Vigilance Officer to conduct an investigation unless there are good and sufficient reasons. On a consideration of the facts and circumstances of this case, I see no reason to direct the Vigilance Officer to register a case and investigate the same. For the reasons stated above, I am not inclined to interfere with the impugned order. This revision is groundless and is dismissed.