Research › Search › Judgment

Kerala High Court · body

2012 DIGILAW 374 (KER)

Babu v. State of Kerala

2012-03-30

N.K.BALAKRISHNAN

body2012
ORDER : N.K. BALAKRISLTNAN, J. 1. The petitioner who is a Circle Inspector of Police, challenges the investigation, that is being conducted by the Superintendent of Vigilance and Anti Corruption Bureau (VACB) Special Cell, Kozhikode. The allegation was that, while the petitioner was working in the Police Department, he amassed wealth disproportionate to his known source of income. The allegation is that he had 30 cents of land near Providence College, Kozhikode, where he has constructed a house spending about L 80 lakhs and also purchased another 30 cents of land near Calicut Ramanattukara Bye Pass Road spending several lakhs. It was further alleged that, he had also purchased several lands in the name of his relatives as benami or otherwise. 2. The Deputy Supdt. of Police, VACB, Kozhikode, was directed by the Special Judge to conduct a preliminary enquiry to find out whether there is any truth in the allegations levelled against the petitioner. After getting report from the Dy.S.P., VACB, Kozhikode, and on perusal of the same the learned Special Judge, Kozhikode, was satisfied that there is truth in the allegations made against the petitioner/accused, and thus the learned Special Judge directed investigation to be conducted by the Superintendent of Police Special Cell, VACB, Kozhikode, under Section 156(3) of Criminal Procedure Code. 3. The learned senior counsel, Sri. Sreekumar argues vehemently that a vigilance enquiry ordered by the Director of VACB, is pending and so the order passed by the learned Special Judge is illegal and without jurisdiction. The petitioner thus seeks to quash the impugned order passed by the learned Special Judge directing investigation under Section 156(3) of Cr.P.C. The request made by the learned senior counsel for the petitioner is strongly resisted by the learned Public Prosecutor, Sri. N. Suresh. It is submitted by him that, in fact, there is no necessity for the court to order preliminary enquiry to be conducted in such matters, nor is there any requirement under law which en joins on the court to order preliminary enquiry before passing the order under Section 156(3) of Criminal Procedure Code. It is pointed out by the learned prosecutor that there is no provision in the PC Act, 1988 or in the Code of Criminal Procedure contemplating a special procedure with regard to the registration of F.I.R. or the conduct of investigation in relation to offence under P.C. Act, 1988. 4. It is pointed out by the learned prosecutor that there is no provision in the PC Act, 1988 or in the Code of Criminal Procedure contemplating a special procedure with regard to the registration of F.I.R. or the conduct of investigation in relation to offence under P.C. Act, 1988. 4. So far as the case on hand is concerned, in fact, there is no necessity to probe deep into those contentions, since in this case, it has been specifically noted by the learned Special Judge in Paragraph 2 of the impugned order that after receiving the complaint filed by the complainant (the convener of Powravakasha Samithi) a preliminary enquiry report was called for from Dy. S.P., VACB and pursuant thereto a report was submitted by the Dy. S.P. It was noted by the learned Special Judge : "A perusal of the report will reveal that A.J. Babu had amassed wealth which is disproportionate to his legal income and expenditure of disproportionate income is calculated as 168% of his legal income. So, prima facie there are materials before this Court to hold that A.J.Babu has committed the offence under Section 13(1) (e) of Prevention of Corruption Act, 1988." 5. The learned Special Judge thus came to the conclusion that detailed investigation is required in the matter and that only after conducting detailed investigation the extent of amassment of wealth by the petitioner herein can be ascertained. Thus after examination of the report and after he was convinced of the fact that it is a case where FIR should be registered and investigation should be conducted, the learned Special Judge passed the order directing the Superintendent to conduct investigation under Section 156(3) of Cr.P.C. When an order is passed by the court under Section 156(3) of Cr.P.C., the Police Officer to whom it is forwarded is bound to register the FIR. In other words, that officer is not expected to get any approval/consent/sanction of his superior officer, howsoever, high he may be. The contention that, even for registration of the FIR and for the conduct of the investigation, the officer should get the sanction/consent/approval of the Director of VACB or any other superior officer is unsound and unacceptable. 6. It was argued by the learned senior counsel Sri. S. Sreekumar that a preliminary enquiry, as ordered by the Director was/is still pending. The contention that, even for registration of the FIR and for the conduct of the investigation, the officer should get the sanction/consent/approval of the Director of VACB or any other superior officer is unsound and unacceptable. 6. It was argued by the learned senior counsel Sri. S. Sreekumar that a preliminary enquiry, as ordered by the Director was/is still pending. The learned Special Judge is not expected to get any report from the Director, VACB for that purpose. The preliminary enquiry as ordered by the court was already conducted and a report was obtained. The learned Special Judge was convinced of the truthfulness of the allegations made in the complaint. The only point to be considered is whether the learned Special Judge has applied his mind and carefully examined the material placed before him, before ordering registration of F.I.R. and investigation under Section 156 (3) of Cr.P.C. 7. The learned Public Prosecutor submits that under the pretext of conducting enquiry ordered by the Director, VACB or by some other officers of the VACB, the petitioner cannot get the investigation stalled indefinitely for years together as has been done in several cases. The enquiry, whether it was ordered by the Director, VACB or by the Government, even if pending, cannot fetter the authority or jurisdiction of the Special Judge in ordering investigation under Section 156(3)of Cr.P.C. It cannot be circumscribed or overridden by the so called executive order if any passed by the Director, VACB. it is argued by Sri. Suresh, When the Code or provision of the PC Act does not prescribe any such procedure, the executive machineries cannot evolve a procedure of their own to circumvent the provisions of PC Act or of the Cr.P.C. The prospective accused cannot insist for a report of preliminary enquiry submitted by the Dy.S.P. 8. Much was argued by the learned senior counsel appearing for the petitioner that while ordering investigation, the court cannot enter a finding that the accused has committed offence. Though, it would appear from the portion of the Order quoted above (vide paragraph No.4) that the learned Special Judge has observed that the petitioner has committed the offence it is clear from that sentence itself that what was meant by Special Judge is that, prima facie there are materials to order investigation. Though, it would appear from the portion of the Order quoted above (vide paragraph No.4) that the learned Special Judge has observed that the petitioner has committed the offence it is clear from that sentence itself that what was meant by Special Judge is that, prima facie there are materials to order investigation. It is manifest that the report produced before court by the Dy.S.P. did indicate that prima facie there are materials to hold that there is some truth in the allegations made in the complaint justifying registration of F.I.R. for offence under Section 13(l)(e) read with Section 13(2) of PC Act, 1988. Therefore, the contention that the learned Special Judge has entered a finding that the petitioner has committed the offence appears to be misconceived. The argument advanced on behalf of the petitioner that till the enquiry ordered by the Director, VACB is complete and a detailed report is filed, FIR cannot be registered is bereft of any merit. 9. In P. Sirajuddin v. The State of Madras, ( AIR 1971 SC 520 ) it was held by the Supreme Court: "Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner." It was argued by the learned senior Public Prosecutor Sri. N. Suresh that the decision in P. Sirajuddin should not be blindly applied in all cases, without realising the fact situations. N. Suresh that the decision in P. Sirajuddin should not be blindly applied in all cases, without realising the fact situations. Relying on the decision in Madathil Marakar Haji v. Vakkom B. Purushothamman, ( 2007 (4) KLT 659 ) it is argued that in Sirajuddin's case the Apex Court has made the observations because that was a case where the enquiry was ordered by the Chief Minister of the State and not a case where the complaint was forwarded by the Special Judge under Section 156(3) of Criminal Procedure Code. It is true that there is a factual difference but the distinction tried to be made that when it is a complaint filed before court and when that complaint is to be dealt with by the court the ratio laid down in Sirajuddin has no application, is found to be unacceptable. 10. The learned counsel for the petitioner has cited the decision of the Apex Court in Shashikwa v. Central Bureau of investigation & Ors., (2006 (4) KLT SN 83 (C.No. 116) SC : AIR 2007 SC 351 ) which also followed the dictum laid down in Sirajuddin cited supra, (vide para 12 of the judgment in Sasikanth's case), Sirajuddin was followed by a Division Bench of this Court in Satheesh v. Enquiry Commissioner 2003 (3) KLT 480 also. In Mohandas v. Enquiry Commissioner and Special Judge, 2004(1) KLT 873 , another Division Bench of this Court also followed the decision in Sirajuddin's case. In Antony Cardoza v. State of Kerala, ( 2011 (1) KLT 946 ), another Single Bench of this Court has also followed the dictum laid down in Sirajuddin cited supra. 11. The decision in P.K. Muralikrishnan v. State of Kerala, (Cr.M.C. 2379/20 10) has also been relied upon by the learned senior counsel for the petitioner. In that case the Special Judge ordered a preliminary enquiry to be conducted before registration of F.I.R.. Another decision of the apex Court in Ashok Tshering Bhutia v. State of Sikkim, AIR 2011 SC 1363 was also cited by the learned senior counsel in support of his submission that the law laid down in Sirajuddin still holds the field. Therefore, the argument advanced based on the decision in Madathil Marakar Haji v. Vakkom B. Purushothamum cannot be accepted. 12. It is not an invariable rule that in all cases a preliminary enquiry is to be conducted. Therefore, the argument advanced based on the decision in Madathil Marakar Haji v. Vakkom B. Purushothamum cannot be accepted. 12. It is not an invariable rule that in all cases a preliminary enquiry is to be conducted. If there are sufficient materials to satisfy the conscience of the court, that those materials are sufficient to find prima facie the truthfulness of the allegations contained in the complaint for the purpose of registration of the crime, then the fact that no preliminary enquiry was conducted prior to the registration of the F.I.R. cannot be a reason to hold that the FIR registered pursuant to the order passed by the court under Section 156(3) Criminal Procedure Code is liable to be quashed. Therefore, it is a matter for the Special Judge before whom the complaint is filed to find whether the materials have been furnished by the complainant in order to satisfy the court as to the necessity of registration of the crime without obtaining a report of the preliminary enquiry for the purpose of satisfying itself as to the truthfulness of the allegations contained in the complaint. Therefore, the contention that Sira juddin's case is not at all applicable to a complaint when presented before the court is unacceptable. 13. As indicated above the preliminary enquiry ordered by the Special Judge was upheld by the Division Bench in Satheesh v. Enquiry Commissioner & Special Judge 2003 (3) KLT 480 , Mohandas v. Enquiry Commissioner and Special Judge 2004 (1) KLT 873 and also in Biju Purushothanran v. State of Kerala 2008 (3) KLT 85 . There is nothing in the Code which prohibits a police officer in making preliminary enquiry before registering an offence and conducting a full scale investigation into it. Therefore. the argument that there is no provision in the Code or in the P.C. Act, 1988, which mandates or requires the Enquiry Commissioner Special Judge to order a preliminary enquiry to be conducted before registering a case and if it is ordered, it is illegal or unsustainable cannot be accepted. Though it is not obligatory to order preliminary enquiry in all cases it is always desirable to obtain a report of preliminary enquiry so as to ensure that the F.I.R. is not registered against an honest public servant. Though it is not obligatory to order preliminary enquiry in all cases it is always desirable to obtain a report of preliminary enquiry so as to ensure that the F.I.R. is not registered against an honest public servant. Even if the officer of VACB, after conducting preliminary enquiry, submits a negative report still, if the Special Judge, after going through the report and the materials supplied, finds that there is sufficient material to register the F.I.R., then ignoring the' opinion of the officer of the VACB, it would be open to the Special Judge to order registration of F.I.R. and investigation of the case. If such an order is passed the officer of the V ACB is bound to obey the order of Court and register the F.I.R. and start investigation immediately without waiting for the concurrence of his superiors. The Courts do have preeminence in such matters. Therefore, the apprehension that when a preliminary enquiry is ordered and the Vigilance Police Officer files a negative report there would be an end of the matter is only a misplaced apprehension. 14. Most often a cleverly drafted complaint may contain allegations attracting the ingredients of the offence allegedly committed by the public servant. But a scrutiny as to the correctness of those allegations have to be made by the Court. The Special Judge may not be in a position, in the absence of materials, to find whether it is a case fit for conducting investigation so as to order forwarding of the complaint under Section 156(3) Cr.P.C. But at the same time, as stated earlier if there are sufficient materials produced along with the complaint which itself will satisfy the requirements to find prima facie the truthfulness of the allegations in the complaint, the position may be different. In such circumstances if the Court orders registration of the crime, that order cannot be said to be bail. 15. The salutary purpose is very clear. Conducting preliminary enquiry in such matters is to find out whether the allegation made in the complaint is genuine and thereby to safeguard the interest of an honest officer. A sincere, efficient and honest officer would be creating enemies as he would be unamenable to any kind of influence. 15. The salutary purpose is very clear. Conducting preliminary enquiry in such matters is to find out whether the allegation made in the complaint is genuine and thereby to safeguard the interest of an honest officer. A sincere, efficient and honest officer would be creating enemies as he would be unamenable to any kind of influence. Unscrupulous and disgruntled elements may be waiting for an opportunity to file a complaint either by himself or through somebody else raising wanton, reckless and frivolous allegations against such an honest officer. If in such a case the complaint is simply forwarded to the officer of the VACB with a direction to register F.I.R. and conduct investigation that would do incalculable harm to that officer/public servant. Ultimately a report, may be filed stating that the allegations are false but by then the intended object of such disgruntled persons would be served. If such a course is adopted it would demorolise such honest officers. It is also pointed out that there would bean over zealous officer in the VACB, who also may proceed with the complaint with a pre-conceived idea and if investigation into such false complaints are conducted by such a biased and over zealous officer, that will also cause irreparable injury to the honest officer. But there may be cases where the complainant, after satisfying himself as to the corrupt and dishonest dealings of the public servant, approaches the Court with a genuine request with sufficient materials and convinces the Court of the gravity and magnitude of corruption. If in such a case the Special Judge is convinced of the fact that materials produced do show the truthfulness of the allegations contained in the complaint, then the Special Judge may be justified in straight away ordering registration of the F.I.R. and to investigate into the offences alleged. But it may be said that what have been placed before the Special Judge would only be the one side of the picture. The entire picture may not be before the Court so that even in such cases sometimes the Special Judge is likely to err. 16. If, in spite of the order of the Court, registration of the F.I.R. is delayed and the investigation is not started then that officer of the VACB would be running the risk; he may even invite action for contempt. 16. If, in spite of the order of the Court, registration of the F.I.R. is delayed and the investigation is not started then that officer of the VACB would be running the risk; he may even invite action for contempt. But in view of the fact that the Special Judge before whom the complaint is filed may not be in a position, at that stage, to form an opinion as to whether there is truth in the allegations made in the complaint and since the learned Judge cannot get any assistance at that stage to find out the truth, it is always desirable that a preliminary enquiry is conducted in the matter. But the Special Judge has to ensure that the enquiry is conducted and report is obtained within a time frame which may depend upon the facts of each case. In some cases it may be possible to conduct the preliminary enquiry and file the report within one week itself. But in certain cases it may require one or two months. But it should be ensured that the officer files the report without delay. 17. It was submitted that normally, once a preliminary enquiry is ordered, it is used to be conducted as directed by the superior officer of the VACB and most often it would continue for years together, only to see that no action is taken against such corrupt and dishonest officers wielding influence or having easy access to the corridors of power. That cannot be permitted. If the Special Judge orders preliminary enquiry to be conducted and completed within a specific time frame it should be completed and report should be filed unless the Special Judge is convinced that further time is to be granted for the said purpose. Any failure on the part of the officer of the VACB in filing such report would amount to disobedience of the order of the Court, in which case also the officer of the VACB would be doing it at his own risk. Therefore, the anxiety expressed or voiced in that regard, that, once a preliminary enquiry is ordered to be conducted the report will never come to light and would actually help the delinquent to push the complaint under the carpet, can be well averted. People do expect a high degree of responsibility, credibility and impartiality from the VACB. Therefore, the anxiety expressed or voiced in that regard, that, once a preliminary enquiry is ordered to be conducted the report will never come to light and would actually help the delinquent to push the complaint under the carpet, can be well averted. People do expect a high degree of responsibility, credibility and impartiality from the VACB. That is required in order to eliminate the apprehension that the officers of the VACB are also biased, at any rate not impartial, due to extraneous considerations or interventions by political executives. 18. The Special Judge who orders preliminary enquiry to be conducted should ensure that such complaints so forwarded for preliminary enquiry are not pushed under the carpet by the officer to whom it was forwarded for conducting enquiry. There is no necessity of recording the detailed statements of witnesses during preliminary enquiry since that cannot be made use of at the time of trial. The statements recorded under Section 161 Cr.P.C., after the complaint is forwarded under Section 156(3) Cr.P.C., alone can be the basis for filing the final report under Section 173(2) of Cr.P.C. Therefore if the officer proceeds to record the statements of the witnesses and continues the enquiry for years together that would be a futile exercise, since ultimately those statements cannot be made use of by the prosecution in the trial of the case. What is required is only collecting of some materials to be placed before the Special Judge or a quick verification of the allegations in the complaint, to prima facie satisfy that materials are available for registration of the crime and for conduct of investigation under Section 156(3) of Cr.P.C. 19. So far as the case on hand is concerned, it has already being found that the learned Special Judge was convinced of the truthfulness of the allegations from the report submitted by the Dy.S.P. Therefore, the order passed by the learned Special Judge under section 156(3) Cr. P.C. directing Superintendent of Police (Special Cell), VACB, Kozhikode to register the F.I.R. and conduct investigation is perfectly correct. Hence this petition is dismissed. Petition dismissed.