IN SOCIETY DISPUTE COMPLAINT CAN BE FILED BEFORE ANTI CORRUPTION BUREAU AND LATER CRPC 156(3) PRIVATE CASE BEFORE ACB SPECIAL COURT. JUDGE WILL CONDUCT PRELIMINARY ENQUIRY WITHIN 3 MONTHS
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8472 of 2011(H)
1. G.S. PRAKASH, T.C 27/926,
... Petitioner
2. K. VIJAYAKUMAR,
3. V. VIJAYAKUMARAN,
4. SANDYAKUMARI,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE REGISTRAR OF CO-OPERATIVE
3. THE SUB INSPECTOR OF POLICE,
4. RADHAKRISHNAN, THOPPIL HOUSE,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/04/2011
O R D E R
"C.R."
THOMAS P. JOSEPH, J.
--------------------------------------
W.P.(C). Nos.8472 of 2011
&
9174 of 2011
--------------------------------------
Dated this the 19th day of April, 2011.
JUDGMENT
These Writ Petitions filed under Article 226 of the Constitution of India are in challenge of orders passed by the learned Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, "the Special Judge") under Sec. 156(3) of the Code of Criminal Procedure (for short, "the Code") directing the Vigilance and Anti Corruption Bureau (for short, "the V&ACB") to conduct a preliminary enquiry and register a case if materials indicating commission of offences as alleged in the private complaints are disclosed and if not, report the matter to the learned Special Judge. The following questions of law are urged for a decision:
I. Whether, in view of Sec. 68A of the Kerala Co-operative Societies Act,1969 (for short, "the Act") it was within the power of learned Special Judge to direct the V&ACB to conduct an enquiry/investigation and the V&ACB to enquire/investigate into matters relating to a Co-operative Society registered under the Act?
WP(C) Nos.8472 & 9174/2011 II. Whether, it was within the power of learned Special Judge to direct a preliminary enquiry to be conducted by the V&ACB before registering a case while passing an order under Sec. 156(3) of the Code?
2. Some facts are necessary for appreciation of the contentions and decision of the questions raised.
3. In W.P.(C) No.8472 of 2011, respondent No.4 filed Ext.P2, complaint against petitioners and two others. Gist of the allegations is that manipulating the admission register of Vanchinadu Housing Co-operative Society (for short, "the Society"), names of certain persons were incorporated in the said Register to make it appear that they were duly enrolled as members of the said Society and to facilitate that, applications preferred by the real members of the Society were manipulated. Petitioners (public servants connected with the Society) and others did so, for illegal gratification. Respondent No.4 alleged that petitioners and others committed offences punishable under Secs.120B, 465, 468, 470 and 471 of the Indian Penal Code (for short, "the IPC") and Sec.13 of the Prevention of Corruption Act, 1988 (for short, "the PC Act"). On receipt of Ext.P2, complaint learned Special Judge passed Ext.P3, order dated March, 30, 2010. Ext.P3, order reads as follows:
"This complaint is forwarded u/s.156(3) crlpc to the Director, Vigilance and Anti Corruption Bureau for conducting a Vigilance Enquiry into the allegations WP(C) Nos.8472 & 9174/2011 raised in the complaint. If materials are collected warranting investigation, a case shall be registered and FIR forwarded to this court and then proceed with investigation. If no materials are available to conduct investigation, a report shall be submitted within three months."
Pursuant to Ext.P3, order a Vigilance Officer conducted a quick verification (or enquiry, as it is called) and submitted Ext.P4, report to the Director, V&ACB through proper channel (Superintendent of the V&ACB). In that report, the Vigilance Officer stated that his enquiry revealed commission of offences punishable under Secs.465, 468, 471 and 120B of the IPC (regarding fake membership of the Society) but, no evidence could be obtained for commission of criminal misconduct (punishable under the PC Act) against petitioners. Other accused in Ext.P2, complaint were exonerated in that report. The Superintendent of the V&ACB forwarded the said report to the Director, V&ACB vide Ext.P5 reiterating the conclusions in Ext.P4, report and recommending that the local Police may register a case against petitioners for offences punishable under the IPC. The Director, V&ACB forwarded the report to the Additional Chief Secretary to the Government vide Ext.P5(a), report dated 16.11.2010 with copy to the Superintendent of Police, Southern Range, Thiruvananthapuram. Based on the said report, the Vanchiyoor Police registered Ext.P6, FIR against petitioners for offences punishable under Secs. 468, 471 and 120B read with Sec. 34 of the IPC. The suo motu report prepared by the Sub Inspector, WP(C) Nos.8472 & 9174/2011 Vanchiyoor is appended to Ext.P6, FIR. There, he has stated that report of quick verification (preliminary enquiry) was forwarded to the Commissioner of Police, Thiruvananthapuram which ultimately reached the Vanchiyoor Police and accordingly Ext.P6, FIR is registered. Following registration of Ext.P6, FIR, Vanchiyoor Police started investigation into the offences punishable under the IPC referred to in Ext.P6 against petitioners. In W.P.(C) No.8472 of 2011, prayer is to call for records leading to Exts.P4, P5 and P6, quash the same and declare that the Act being a self-contained special statue which governs the administration of a Society registered under the said Act and provides for an enquiry and investigation by a competent Police Officer appointed under Sec.68A of the Act into allegations of misappropriation, etc., a parallel enquiry or investigation is without authority and hence is illegal.
4. In W.P.(C) No.9174 of 2011 the Society involved is the Thiruvananthapuram Taluk Integrated Silk Handloom Weaver's Co-operative Society Ltd (again for short, "the Society") . Respondent No.4 filed Ext.P1, complaint before learned Special Judge against petitioner (accused No.2 in the complaint) and four others. There, offences alleged are under Secs.120B, 403, 406, 409, 420, 465, 468 and 471 read with Sec.34 of the IPC and Secs.5, 7, 8, 11 and 13 of the PC Act. Learned Special Judge passed Ext.P2, order under Sec.156(3) of the Code (which is similar to Ext.P3, order in W.P.(C) No.8472 of 2011 and extracted above). The vigilance Officer has started the preliminary enquiry. In W.P.(C) No.9174 of 2011, it is prayed that Ext.P2, order may be WP(C) Nos.8472 & 9174/2011 quashed. A declaration as to illegality in the parallel enquiry/investigation as prayed for in W.P.(C) No.8472 of 2011 is prayed for in W.P.(C) No.9174 of 2011 also.
Point No.I
5. It is argued by the learned counsel for petitioners that a parallel enquiry or investigation by the V&ACB is barred in view of the special provision contained in Sec.68A of the Act. It is contended by the learned counsel that when the special statute (i.e., the Act) is self-contained and has in-built provision for enquiry or investigation into any misappropriation or other malpractices which has allegedly occurred in a Society coming within the purview of the Act, such enquiry or investigation has to be conducted in accordance with the said provision and hence a parallel enquiry or investigation by the V&ACB is not contemplated.
6. Sec.68A of the Act reads:
"68A. Vigilance Officer.- (1) The Government shall appoint an officer, not below the rank of Deputy Inspector General of Police, as Vigilance Officer with powers to enquire into and investigate the cases of misappropriation, corruption and any other major irregularities in the society as may be referred to him by the Registrar.
WP(C) Nos.8472 & 9174/2011
(2) The Vigilance Officer shall conduct the
inquiry and investigation in such manner, as may be
prescribed.
(3) The Vigilance Officer shall be under the
administrative control of the Registrar of Co-operative Societies.
Provided that the powers of the Registrar of Co-
operative Societies under this section shall not be conferred on any other person."
Sec.68A was inserted by Act 1 of 2000 and was given effect by SRO No.526 of 2007 from 05.06.2007. As per the said provision, the Government shall appoint an Officer who is not below the rank of the Deputy Inspector General of Police as Vigilance Officer to enquire into and investigate cases of misappropriation and corruption and any other major irregularities in the Society as may be referred to him by the Registrar. Such Vigilance Officer shall conduct the enquiry and investigation in such manner as may be prescribed and he shall be under the administrative control of the Registrar of Co-operative Societies. Learned Public Prosecutor opposing the argument of learned counsel for petitioners contends that Sec.68A of the Act operates in an entirely different field and has nothing to do with the investigation which the local Police or V&ACB is to conduct in accordance with the provisions of the Code. It is contended that there is no provision in the Act which either expressly or impliedly repealed the WP(C) Nos.8472 & 9174/2011 provisions of the Code relating to investigation of offences committed by office bearers of the Society who are public servants. It is also pointed out that the Act does not contemplate any trial or conviction for any offence as may be detected in the enquiry or investigation conducted by the Vigilance Officer under Sec.68A of the Act. Learned Public Prosecutor contended that Sec.100 of the Act it is only the jurisdiction of civil and revenue courts that is expressly barred in respect of any matter for which provision is made in the Act.
7. Chapter XII of the Code deals with information to the Police and their powers to investigate into cognizable offences. When information is given to a Police Officer regarding commission of a cognizable offence he is to record such information into writing and get it signed by the person giving such information. He is to record substance of the information in the book to be kept by him in such form as the State Government may prescribe in that behalf. Sec.157 of the Code deals with the procedure for investigation and states that if from information received or otherwise an Officer in charge of a Police Station has reason to suspect commission of an offence which he is empowered under Sec.156 of the Code to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a Police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in that behalf, to proceed to the spot, investigate the facts and circumstances of the case and if necessary take necessary measures WP(C) Nos.8472 & 9174/2011 for discovery and arrest of the offender. Sec.156 of the Code deals with the power of an Officer in charge of a Police Station to investigate a cognizable case. Under Sub-sec.(3), any Magistrate empowered under Sec.190 also may order such an investigation. Chapter XIV of the Code deals with the conditions requisite for initiation of proceedings. Sec.190 of the Code coming in the said Chapter states that subject to the provisions of the said Chapter, any Magistrate of the first class and any Magistrate of the second class specially empowered in that behalf under Sub-sec.(2) may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Chapter XV of the Code deals with power of the Magistrate to take cognizance of an offence on a complaint. Thus, the procedure for investigation of cognizable offence by the Police, initiation of proceeding before the Magistrate and the manner of taking cognizance by the Magistrate are provided in Chapters XII, XIV and XV of the Code.
8. Contention raised by learned counsel for petitioners referring to Sec.68A of the Act is that in view of the said provision a parallel enquiry or investigation under the Code is barred. Sec.5 of the Code says that nothing contained in the said Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by WP(C) Nos.8472 & 9174/2011 any other law for the time being in force. In Subashchandra Bose v. The Court of Judicial First Class Magistrate, Ananthapur and others (1973 Madras Law Journal (Cri.) 728), Alladi Kuppuswami, J. with reference to the provisions of the District Police Act (V of 1861) held that though the said Act contained certain machinery for punishing the Police Officers in regard to certain matters, there is no provision in the said Act which ousted jurisdiction of the court under the Code and that Police Officers are also amenable to the jurisdiction of the courts as any other citizen under the Code. Though, in relation to a proceeding under Sec.133 of the Code in the light of the Water (Prevention and Control of Pollution) Act, 1974 this Court had the occasion to deal with implied repeal of provisions of the Code in view of the provisions of the said Act. There, the question considered was whether in view of the provisions of the said Act, powers of the Sub Divisional Magistrate to act under Sec.133 of the Code stood impliedly repealed. This Court held that repeal like an enactment is essentially a legislative exercise properly left with the Legislature in the separation of powers envisioned by the Constitution of India, it is for the Legislature to enact a law, or repeal a law and that implied repeal is not presumed easily because the Legislature which enacts a law is presumed to be aware of the existence of earlier laws on the subject. Plurality of legislation does not suggest repeal by implication. Often, conflict between two statues is only seeming; their objects being different and the language of each being restricted to its object. The Division Bench also made reference to the words of Maxwell that such legislation could "run on parallel lines without meeting". The WP(C) Nos.8472 & 9174/2011 Division Bench observed that even when there is a seeming conflict, if possible effect should be given to both. Division Bench referred to various authorities on interpretation of statutes and implied repeal and came to the conclusion that the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Chapter X of the Code operated in different fields and hence no question of implied repeal of Chapter X of the Code could be presumed.
9. Applying the above principles as to interpretation of statute I am to decide whether in view of Sec.68A of the Act, enquiry/investigation by the Police/V&ACB under provisions of the Code is barred even impliedly in respect of offences allegedly committed by public servants attached to a Society registered under the Act. Sec.68A of the Act provided for appointment of an Officer not below the rank of the Deputy Inspector General of Police as Vigilance Officer to conduct enquiry/investigation into cases of misappropriation, corruption and other major irregularities in the Society as may be referred to him by the Registrar and submit report to the Registrar. The Vigilance Officer appointed under Sec.68A of the Act cannot also enquire/investigate the offence if any committed by a co-accused who is not a public servant connected with the Society. Nor could the Registrar take any action against such co-accused. The Act does not provide any machinery for trial of public servants connected with the Society who in the enquiry/investigation conducted under Sec.68A of the Act is found to have indulged in misappropriation, corruption or other major irregularities in the Society. Sec.68A of the Act does not confer any WP(C) Nos.8472 & 9174/2011 independent right on the Vigilance Officer to enquire/investigate. He is to enquire/investigate only if the mater is referred to him by the Registrar. The investigation under Chapter XII of the code is to culminate in a final report to be submitted before the appropriate court as provided under Sec.173(2) of the said Code. If such report discloses commission of an offence, the appropriate court is to proceed against the offender as provided in the Code. The report of enquiry/investigation as per Sec.68A of the Act is not for the purpose of putting the offender on trial. It could be for the purpose of a departmental enquiry or other action as provided by the Act. It is pertinent to note from Sec.100 of the Act that the bar of jurisdiction referred to therein in respect of matters required to be dealt with under the Act is only of civil and revenue courts. Sec.100 of the Act does not apply to the jurisdiction of criminal courts. It is relevant to note that even when Sec.68A was brought into the Act by way of amendment, no provision excluding enquiry/investigation/trial under the Code was made. Learned Public Prosecutor has brought to my notice certain Government Orders relating to investigation of cases involving misappropriation in Co-operative Societies as well. It is pointed out that cases involving misappropriation above Rupees Five lakhs are to be investigated by the V&ACB and that in W.P(C) No.9174 of 2011, the amount involved is much more than Rupees Five lakhs.
10. The Government have as per G.O(P) No.21/2010/Vig. Dated 09.06.2010 modified G.O.(P) No.65/92/Vig., dated 12.05.1992 and G.O.(P) No.18/97/Vig. and as per the modification, cases of misappropriation including WP(C) Nos.8472 & 9174/2011 funds of Co-operative Societies above Rupees Five lakhs shall be investigated by the V&ACB. That also is an indication that Sec.68A of the Act was not intended to do away with the investigation, enquiry and trial as provided in the Code. These circumstances persuade me to hold that the vigilance enquiry contemplated under Sec.68A of the Act and the investigation that the Police/V&ACB is to initiate in exercise of their power under Chapter XII of the Code and on completion of investigation to put the offender on trial in accordance with the provisions of the Code operate in different fields, with different objectives. Sec.68A of the Act cannot override power of the Police/V&ACB to investigate into offences concerning a Society under Chapter XII of the Code or power of Court to initiate proceeding under Chapter XIV of the Code, much less to say about taking cognizance under Chapter XV of the Code In that view, contention advanced by the learned counsel that in view of Sec.68A of the Act, an enquiry/investigation by V&ACB, submission of a final report and trial of petitioners before the criminal court is barred, cannot be accepted.
Point No.II
11. It is argued by learned counsel that Exts.P2 and P3, orders passed by the learned Special Judge under Sec.156(3) of the Code directing a preliminary enquiry before registration of cases are illegal. It is contended that learned Special Judge has no power to direct a preliminary enquiry to be WP(C) Nos.8472 & 9174/2011 conducted while ordering investigation under Sec.156(3) of the Code. According to the learned counsel, when an order is passed under Sec.156(3) of the code, the V&ACB is bound to register a case and investigate. The V&ACB could not, in view of the order under Sec.156(3), proceed to conduct a preliminary enquiry and decide whether a case is to be registered or not. Learned counsel submitted that the decision of the Supreme Court in P.Sirajuddin v. State of Madras [(1970) 1 SCC 595) has been misconceived and misinterpreted by the learned Special Judge to order a preliminary enquiry even while acting Sec.156(3) of the Code. Learned counsel contended that P.Sirajuddin's case (supra) related to a complaint which was preferred to the Chief Minister which in turn, was sent to the V&ACB for investigation. It was not a case where the Special Judge exercising power under Sec.156(3) of the Code ordered to register a case and investigate. Learned counsel made heavy reliance on the decision of this Court in Madathil Marakar Haji v. Vakkom B. Purushothaman [2007 (4) KLT 659]. It is contended that it is overlooking the said aspects that the learned Special Judge has passed Exts.P2 and P3, orders and directed the V&ACB to conduct a preliminary enquiry before registering the cases. According to the learned counsel, though P.Sirajuddin's case (supra) was relied on by a Division Bench of this Court in Satheesh v. Enquiry Commissioner & Special Judge [2003 (3) KLT 480], question WP(C) Nos.8472 & 9174/2011 whether a preliminary enquiry could be ordered by the Special Judge when a private complaint is forwarded to the V&ACB invoking power under Sec.156(3) of the Code was not raised before, or decided by the Division Bench and hence that decision is no authority to hold that even a when private complaint is forwarded to the V&ACB under Sec.156(3) of the Code, it is within the power of the Special Judge to direct a preliminary enquiry before registration of the case. Learned counsel argued that every decision has to be understood on the facts of the case it decides and has placed reliance on Padma Sundara Rao (dead) and others v. State of T.N. and others [(2002) 3 SCC 533]. It is also pointed by the learned counsel with reference to the decision in Lalita Kumari v. Government of Uttar Pradesh and others [(2008) 14 SCC 337] that the question whether upon receipt of information regarding commission of a cognizable offence it is imperative for the Police Officer to register a case or a discretion lies with him to make some enquiry before registering the case has been referred to a larger Bench of the Supreme Court in view of conflicting decisions on the point. Learned Public Prosecutor in response contended that the Code does not prohibit the learned Special Judge from directing a preliminary enquiry to be conducted before registering a case while issuing an order under Sec.156(3) of the Code and that such a course is adopted by the learned Special Judge as a precautionary measure, in the light of the decision in P.Sirajuddin's case (supra) to ensure that any frivolous complaint intended to wreak vengeance does not result in the WP(C) Nos.8472 & 9174/2011 registration of a case even against an honest public servant, thereby affecting the morale of not only the public servant concerned but the department as well. According to the learned Public Prosecutor the Division Bench in Satheesh v. Enquiry Commissioner & Special Judge (supra) relying on the decision in P.Sirajuddin's case (supra) has upheld the order of learned Special Judge directing preliminary enquiry by the V&ACB while issuing an order under Sec.156(3) of the Code. It is pointed out that though reference has been made by the learned Single Judge in Madathil Marakkar Haji v. Vakkom B.Purushothaman (supra) to the decision of the Division Bench in Satheesh v. Enquiry Commissioner & Special Judge (supra), learned Single Judge has not referred to the fact that preliminary enquiry ordered by the learned Special Judge while forwarding the complaint under Sec.156(3) of the Code to the V&ACB was upheld by the Division Bench in view of the decision in P.Sirajuddin's case. In the light of the decision of the Division Bench, it is contended that the view taken by learned single Judge in Madathil Marakar Haji v. Vakkom B. Purushothaman (supra) to the extent it concerned the power of Special Judge to direct a preliminary enquiry before registration of the case is not correct and cannot be relied on.
12. Before dealing with the contentions raised it is necessary to refer the relevant provisions of the Code. Chapter XIV of the Code dealt with the conditions requisite for initiation of proceedings while Chapter XV of the Code WP(C) Nos.8472 & 9174/2011 dealt with the power of the Magistrate (in the present case, the Special Judge) to take cognizance. Initiation of proceedings is one thing and, taking cognizance is entirely different. The Magistrate (in the present case, Special Judge) while initiating proceedings under Chapter XIV of the Code is entitled to act on a police report submitted under Sec.173(2) of the Code. Chapter XII of the Code deals with power of the Police to investigate into commission of a cognizable offence. Sec.157 of the Code states that an officer in charge of a Police Station upon receipt of information regarding commission of a cognizable offence shall investigate into the matter if he has reason to suspect commission of such offence. What the Supreme Court has referred to a larger Bench in Lalita Kumari v. Government of Uttar Pradesh and others (supra) is the question whether the Police Officer, on getting information under Sec.154 of the Code as regards commission of a cognizable offence is bound to register a case and investigate or, is entitled to conduct some enquiry before registering the case to decide whether he has reason to suspect that a cognizable offence is committed.
13. Whether, when a Special Judge orders investigation under Sec. 156(3) of the Code, the V&ACB could go for a preliminary enquiry before registering the case has been subjected to various decisions of this court. A learned Judge of this court in Reghunathan v. State of Kerala [2001 (3) KLT 444] held that when a complaint is forwarded to the V&ACB under WP(C) Nos.8472 & 9174/2011 Sec.156(3) of the Code for investigation the V&ACB is bound to register a case and investigate. It is observed that even if the V&ACB conducts a preliminary enquiry into the allegations made in the complaint, it could not say that there is no need for registering a case. As per the decision of the Supreme Court (in P.Sirajuddin's case) the Vigilance Cell can conduct a preliminary enquiry when information is given to the vigilance Cell regarding commission of offence But the Vigilance Cell is bound to register a case on the basis of the complaint sent to it for investigation under Sec.156(3) of the Code, learned Judge held. In that case challenge was to the procedure adopted by the V&ACB in registering a case without conducting a preliminary enquiry (there was no order to conduct a preliminary enquiry before registering the case). Learned Judge held that the V&ACB cannot be faulted for registering a case without conducting a preliminary enquiry .
14. In Biju C. Valluvanadan v. State of Kerala [2004 (3) KLT 296] , another learned Judge of this court held that even when a complaint is forwarded to the V&ACB by the Special Judge under Sec.156(3) of the Code, the V&ACB is not bound to register a case immediately on receipt of the complaint and that only if the preliminary enquiry revealed prima facie evidence of guilt of the public servant the V&ACB is bound to register a case. If on such enquiry the allegations are found to be baseless, the V&ACB is not bound to register a case. It was also held that in such situation the V&ACB is WP(C) Nos.8472 & 9174/2011 to send a report to the Special Judge and on consideration of the report the Special Judge can either drop the proceeding or initiate further action as contemplated under the Code. Learned Judge was drawing a distinction between complaints forwarded by Magistrates under Sec.156(3) of the Code and a complaint against a public servant forwarded by the Special Judge under Sec.156(3) to the Police/V&ACB in the light of the decision in P.Sirjuddin's case. But the learned Judge did not refer to the decision in Reghunathan v. State of kerala (supra).
15. In Madathil Marakar Haji v. Vakkom B.
Purushothaman (supra) in paragraph 31, learned Judge observed that the Code does not contain any provision which empowers the Special Judge to order a preliminary enquiry to be conducted by the officers of the V&ACB/Police while exercising power under Sec.156(3) of the Code. The Special Judge has no power either under the Code or under any special statute to order a preliminary enquiry or any type of enquiry to be conducted by any officer of the V&ACB while ordering investigation by invoking power under Sec.156(3) of the Code. It is also held that by passing an order for preliminary enquiry or vigilance enquiry prior to the registration of the FIR in cases where a cognizable offence is prima facie made out, the Special Judge virtually prevents the officer of the V&ACB from registering the FIR in accordance with Sec.154 of the Code and that the officer of the V&ACB is forced to act in contravention of Sec.154 of the WP(C) Nos.8472 & 9174/2011 Code and conduct a preliminary enquiry or such other enquiry as ordered without registering the FIR. In paragraph 32 it is held that in the absence of any specific provision in the Code empowering the Special Judge to issue any direction for enquiry while acting under Sec.156(3) of the Code, no order shall be issued by the Special Judge to the officers of the V&ACB to conduct a preliminary enquiry or vigilance enquiry before registration of the FIR especially in cases where the complaint prima facie discloses a cognizable offence. Learned Judge found that the order of the Special Judge directing a preliminary enquiry to be conducted before registering the case is illegal. In holding so, reliance was placed on the decision in Reghunathan v. State of Kerala (supra). The decision in Biju C. Valluvanadan v. State of Kerala (supra) was held per incuriam. Learned Judge further held that the vigilance manual also does not provide for any preliminary enquiry when a complaint is forwarded (under Sec.156(3) of the Code). Learned Judge distinguished the decision in P.Sirajuddin's case (supra) as in that case it was not an order under Sec.156(3) of the Code issued by the Magistrate or the Special Judge but an executive order to investigate into a complaint.
16. So far as the present cases are concerned, question is whether learned Special Judge was correct in directing a preliminary enquiry to be conducted before registration of the cases and if in such enquiry no prima facie case is made out, to report to the learned Special Judge. In WP(C) Nos.8472 & 9174/2011 Reghunathan v. State of Kerala (supra) on which reliance has been placed in Madathil Marakar Haji v. Vakkom B. Purushothaman (supra) the fact situation was that learned Special Judge directed registration of a case and investigation (without any direction to conduct a preliminary enquiry) and accordingly the V&ACB registered a case and investigated. That was called in question (in Reghunathan v. State of Kerala - supra) contending that before registering the case, a preliminary enquiry ought to have been conducted to find whether a prima facie case is made out. This Court held that the V&ACB could not be faulted for registering a case without conducting a preliminary enquiry. Of course it was also observed that the V&ACB is bound to register a case on the basis of complaint forwarded to it for investigation under Sec.156(3) of the Code.
17. It is true that in P.Sirajuddin's case (supra), it was not a case of the Special Judge acting under Sec.156(3) of the Code but, a complaint received by the Chief Minister being forwarded to the Vigilance for investigation. It is relevant to refer to the observation made by Mitter, J. in paragraph 17 which is thus:
".....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 WP(C) Nos.8472 & 9174/2011 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. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted not less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-
sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the WP(C) Nos.8472 & 9174/2011 purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is pirma facie evidence of guilt of the officer.
Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report."
There is nothing in the said decision to confine it to a case where, by an executive order the V&ACB is directed to register a case or to a case where information regarding commission of the offence is directly given to the V&ACB. There is no provision in the Code or any other law brought to my notice which prohibited the Special Judge who otherwise has the power under Sec.156(3) of the Code to direct a case to be registered, to further direct that before doing so, a preliminary enquiry be conducted to find whether a prima facie case is made out, as directed by the Supreme court in P.Sirajuddin's case.
18. Reference can also be made to the decision in State of Uttar Pradesh v. Bhagwant Kishore Joshi [(1964) 3 SCR 71]. There, agreeing with the conclusion of Subba Rao, J. (as His Lordship then was), regarding an enquiry conducted before starting with the investigation Mudholkar, J. in his separate judgment said WP(C) Nos.8472 & 9174/2011 "In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a Police Officer to make preliminary enquiries before registering an offence and making a full scale investigation into it."
In State of Haryana and others v. Bhajan Lal and others [1992 Supp.(1) SCC 335], in paragraph 79 it is observed regarding the need to conduct a preliminary enquiry before registering a case for corruption, etc. against a public servant:
"We are in agreement with the views, expressed by Mitter, J. and Mudholkar, J. in the above two decisions."
In State of Haryana and others v. Bhajan Lal and others (supra) it was pointed out that in a perfect system of prevention and detection of crimes, undeniably the paramount duty of a police officer to whom commission of a cognizable offence is reported, is to register a case without causing any delay and promptly commence the investigation without perverting or subverting the law. However, before a public servant is publicly charged with acts of dishonesty and corruption, and a first information report is lodged against him, there should be some suitable preliminary enquiry into the allegations by a responsible officer. In Shashikant v. Central Bureau of Investigation WP(C) Nos.8472 & 9174/2011 and others [(2007) 1 SCC 630] referring to the CBI Manual, it was held that when anonymous complaints are made to the CBI alleging corrupt practices and financial irregularities on the part of public servants, it was within the province of the CBI to commence a preliminary enquiry (before registration of the case).
19. In the light of the above decisions, it is reasonable to think that the learned Special Judge while issuing an order under Sec.156(3) of the Code is not powerless to direct a preliminary enquiry to be conducted before registration of the case. That is because, otherwise, a person who is disgruntled with the conduct of an honest public servant may choose his own way by filing a complaint before the Special Judge making allegations against such public servant which are sufficient to attract offence under the PC Act, with the object of maligning the public servant and even his department. It is not as if, if the V&ACB reports to the Special Judge after a preliminary enquiry that no prima facie case is made out, there is an end of the matter the Special Judge is entitled to pursue the complaint, report and take further action in the matter as the Code provides.
20. The Division Bench in Satheesh v. Enquiry Commissioner & Special Judge (supra) was dealing with a complaint forwarded to the V&ACB by a learned Special Judge under Sec.156(3) of the Code. There, while issuing order under Sec.156(3) of the Code directing WP(C) Nos.8472 & 9174/2011 V&ACB to conduct a preliminary enquiry, register a case and investigate if prima facie case is made out, learned Special Judge made observations on the merit of the case (as seen from paragraph 14 of the decision of the Division Bench). The Division Bench referred to the decision in P.Sirajuddin's case (supra) and held in paragraph 15:
"................We are of the opinion that in the light of the direction issued by the Supreme Court, the Special Court cannot simply act as a post office and issue without proper application of mind a direction to the Vigilance Police to conduct enquiry or investigation into the allegations. But at the same time we are not satisfied that the impugned order is free from legal infirmities. The Special Court ought to have taken special care to see that it does not enter into any finding which has got the potential to cause impediment in the free and fair enquiry or investigation, as the case may be, by the Vigilance Police. The Special Court has to examine the available materials so as to satisfy itself that a complaint which is baseless or frivolous or vexatious is not forwarded to the Vigilance Police for enquiry or investigation. This is to see that innocent public servants are not subjected to irreparable injury and hardship. The Special Court, if it is satisfied that the matter requires enquiry by the Vigilance Police, may briefly state the allegations and the materials in support thereof that have come to its notice and WP(C) Nos.8472 & 9174/2011 order enquiry into the matter by the Vigilance Police, without recording any finding with respect to the truth of the facts mentioned in the complaint. Unless the Special Court refrains from making observations or findings touching the merit of the allegations, any enquiry or investigation by the Vigilance Police will become a farce. As already stated by us, we have noticed that such infirmities have crept into the impugned order. Those observations and findings are liable to be expunged. We do not, however, think that the direction issued by the Special Court ordering enquiry by the Vigilance Police into the allegations, calls for interference. We think that it will meet the ends of justice if it is made clear that it will be open to the Director of Vigilance and Anti Corruption Bureau to conduct enquiry into the entire factual matrix and all aspects relevant for the purpose of forming a free and fair opinion regarding the truth or otherwise of the allegations, as also the commission of acts or omission constituting any penal offence. The question of mens rea constituting the offences alleged also will come within the scope of that enquiry. We direct that the Director, V.A.C.B. shall act accordingly uninfluenced by the opinions, observations or findings contained in the impugned order."
WP(C) Nos.8472 & 9174/2011
21. It is eminently clear that the Division Bench only interfered with the observations made by the learned Special Judge on the merit of the case while passing order under Sec.156(3) of the Code directing the V&ACB to conduct a preliminary enquiry, register a case and investigate. Learned counsel for petitioners contend that before the Division Bench, no argument was advanced that while ordering investigation under Sec.156(3) of the Code learned Special Judge has no power to direct any preliminary enquiry to be conducted, nor the Division Bench decided that question and hence the said decision is not authority for the proposition that learned Special Judge has power to direct a preliminary enquiry before registration of the case. I am afraid, that argument cannot be accepted. The Division Bench ordered, while disposing of the case:
"............ We direct that the Director, V.A.C.B. shall act accordingly uninfluenced by the opinions, observations or findings contained in the impugned order."
Obviously, the direction to 'act accordingly' was as directed by learned Special Judge, ie., to conduct a preliminary enquiry before registration of the case. This is clear from the following observations of the Division Bench:
".............We think that it will meet the ends of justice if it is made clear that it will be open to the Director of Vigilance and Anti Corruption Bureau to conduct enquiry into the entire factual matrix and all WP(C) Nos.8472 & 9174/2011 aspects relevant for the purpose of forming a free and fair opinion regarding the truth or otherwise of the allegations........................"
22. It is seen from a reading of the decision in Madathil Marakar Haji v. Vakkom B. Putushothaman (supra) that the fact situation, observations made and directions issued by the Division Bench in Satheesh v. Enquiry Commissioner & Special Judge (supra) were not brought to the notice of the learned Judge. This was taken note of by another learned Judge in the same decision (Madathil Marakkar Haji's case) when it came back to this Court on a later occasion [Biju Purushothaman v. State of Kerala - 2008 (3) KLT 85]. Learned Judge observed in paragraph 13 of the said decision:
".............. Eventhough two Division Bench decisions namely Satheesh v. Enquiry Commissioner and Special Judge (2003 (3) KLT 480) and Mohandas v. Enquiry Commissioner and Special Judge (2004 (1) KLT 873) were cited before the learned Single Judge, those decisions were relied on for some other purpose in para.27 of Annexure VIII judgment. In both the cases of Satheesh and Mohandas, preliminary enquiry by the Vigilance Department ordered by the Enquiry Commissioner and Special Judge, Thrissur was upheld by the Division Bench in WP(C) Nos.8472 & 9174/2011 the light of Sirajudheen v. State of Madras (AIR 1971 SC 520) and the Division Bench only expunged certain observations and findings on the merits in the impugned orders passed by the Enquiry Commissioner and Special Judge. A learned Single Judge of this Court also in Sreekumar S.Menon v. State of Kerala (2004 (2) KLT 53) after setting aside the order passed by the Enquiry Commissioner and Special Judge, Thrissur rejected the complaint, and directed the Special Judge to order a preliminary enquiry by the Vigilance Department into the allegations against the accused in that case. Reliance was again placed on Sirajudheen's case. Probably, it was noticing this aspect of the matter that the learned Judge only observed in Annexure VIII order that the order passed by the Special Judge directing preliminary enquiry was liable to be set aside."
(In Sreekumar S.Menon v. State of Kerala (supra) learned Special Judge rejected the complaint. This court set aside that order, and relying on the decisions in P.Sirajuddin's case and of the Division Bench in Satheesh v. Enquiry Commissioner and Special Judge (supra), directed learned Special Judge to order a preliminary enquiry into the allegations in the complaint by an officer of the Vigilance Department while acting under Sec.156(3) of the Code.) WP(C) Nos.8472 & 9174/2011
23. Learned Judge who decided Biju Purushothaman v. State of Kerala (supra) held in Antony Cardoza v. State of Kerala (2011 (1) KLT 377) that a preliminary enquiry before formal registration of a crime case is desirable in corruption charges against public servants since only a preliminary enquiry can disclose whether the charge of corruption or criminal misconduct made in a complaint against a public servant is genuine and honestly made. I do not forget that in the said case also complaint against the public officer was made to the Minister concerned who forwarded it to the Vigilance for enquiry. Leaned counsel has placed reliance on the decision of the Allahabad High Court in Udaybhan Shuki v. State of U.P. and others [1999 Cri.L.J. 274] to contend that the power to order investigation under Sec.156(3) of the Code cannot be delegated to the Police for making a preliminary enquiry before starting investigation. But that was not a case involving charge of corruption against a public servant. Nor was there any reference to the decisions in State of Haryana and others v. Bhajan Lal and others, State of Uttar Pradesh v. Bhagwant Kishore Joshi and P.Sirajuddin v. State of Madras (supra). As held by Mudholkar, J. in State of Uttar Pradesh v. Bhagwant Kishore Joshi (supra), there is nothing in the Code which prohibits the learned Special Judge from directing a WP(C) Nos.8472 & 9174/2011 preliminary enquiry (which was in the interest of public servant concerned) into the allegations contained in the complaint to find whether there is a prima facie evidence of guilt of the public servant before registering a case.
24. Learned counsel requested that in view of the conflict in the decisions the matter may be referred to a Larger Bench. I do not consider that such course is necessary in view of the decision of the Division Bench of this Court (supra) and the directions contained therein (extracted above) which were not considered in Madathil Marakar Haji v. Vakkom B. Purushothaman. Having regard to the decisions of the Supreme Court and the decision of the Division Bench of this Court referred supra where specific direction was given to the V&ACB to conduct an enquiry before registering a case (on a complaint which was forwarded by learned Special Judge to the V&ACB under Sec.156(3) of the Code) I am unable to agree with the view expressed by the learned Judge in Madathil Marakar Haji v. Vakkom B. Purushothaman (supra) that the Special Judge has no power to direct an enquiry to be conducted before registration of the case and investigation is started. In the absence of any prohibition in that regard, it was well within the power of learned Special Judge to issue such a direction as done by Exts.P2 and P3, orders involved in these cases. In view of the decision of the Division Bench in Satheesh v. Enquiry Commissioner & Special Judge (supra) I cannot also agree with the distinction made in Reghunathan v. State of Kerala and Madathil Marakar Haji v. Vakkom B.Purushothaman that the decision of the Supreme court in WP(C) Nos.8472 & 9174/2011 P.Sirajuddin's case (supra) cannot apply to cases where a Special Judge issues an order under Sec.156(3) of the code. I therefore do not find any illegality in Exts.P2 and P3, orders passed by the learned Special Judge.
25. It is the further contention of the learned counsel that learned Special Judge has not applied mind while passing Exts.P2 and P3, orders (under Sec.156(3) of the Code) and instead, merely forwarded the complaints to the V&ACB. It is also pointed out from Exts.P2 and P3 that stereo typed orders have been passed by learned Special Judge.
26. I have extracted the order passed by learned Special Judge . It is true that learned Special Judge has merely stated that the complaint is forwarded under Sec.156(3) of the Code to the Director, V&ACB. But, I find that learned Special Judge has observed in Exts.P2 and P3, orders that the said orders are passed upon hearing arguments advanced by counsel for complainants and the legal adviser. Though not specifically referred to in Exts.P2 and P3, orders I must bear in mind that when the learned Special Judge heard counsel for complainants and the legal adviser, that hearing was on the allegations contained in the respective complaints. In other words, it is after referring to the allegations contained in the respective complaints that learned Special Judge has passed Exts.P2 and P3, orders. In the circumstances, I reject the contention that it was without application of mind the said orders have been passed by learned Special Judge.
WP(C) Nos.8472 & 9174/2011
27. It is lastly argued by learned counsel that while conducting the preliminary enquiry pursuant to Ext.P3, order in W.P.(C) No.8472 of 2011, the Vigilance Officer has conducted a detailed enquiry, recording statements of witnesses and suspects and even getting it signed which is prohibited by Sec. 162 of the Code even in a full fledged investigation. According to the learned counsel, that would prejudice the investigation following Ext.P4, report (in W.P (C) No.8472 of 2011). Learned counsel has invited my attention to the decision in P.Sirajuddin's case (supra) where the officer who conducted enquiry committed illegalities which were directed to be eschewed by the trial court while framing charge.
28. Sec.162 of the Code applies in the matter of statement of persons acquainted with the facts of the case recorded by the Investigating Officer in the course of investigation of the case. What the Vigilance Officer has done pursuant to Ext.P3, order (in W.P.(C) No.8472 of 2011) is an enquiry. I am not going into the question whether it was lawful for the Vigilance Officer to have obtained signed statements (if any) from witnesses and even suspects. That is a matter which petitioners could point out before the court concerned at the appropriate stage as provided under law. Learned counsel would draw a distinction that in P.Sirajuddin's case (supra), the illegal practice of the Vigilance Officer conducting the vigilance enquiry was commented upon after investigation unlike in the present case where investigation is going on in one WP(C) Nos.8472 & 9174/2011 case and hence the illegality committed in the preliminary enquiry is sufficient to quash that investigation. I am unable to accept that argument as well. Even in the course of investigation if signed statement is obtained from witnesses, that by itself does not vitiate the investigation or trial. It is only that the court must be more cautious while appreciating the evidence of such witnesses in that their signed statement were obtained by the Investigating Officer in the course of investigation. These are matters which the trial court has to look into, be it at the stage of framing charge or in the course of trial of the case.
In the light of what I have stated above, questions raised are answered in the following lines:
i. Sec.68A of the Kerala Co-operative Societies Act,1969 does not affect or take away the right of the Police/V&ACB to conduct enquiry/investigation in accordance with the provisions of Chapter XII of the Code into a cognizable offence said to be committed by a public servant connected with a society registered under the said Act on receipt of information regarding commission of such offences, or the power of Special Judge to direct enquiry, registration of the case, investigation and proceed in the matter as provided in the Code.
WP(C) Nos.8472 & 9174/2011 ii. The Special Judge has the power to direct and it is appropriate that while issuing an order under Sec.156(3) of the Code the Police/V&ACB is directed to hold some enquiry to find whether there is prima facie evidence of guilt of the public servant before a case is registered and a full-fledged investigation is started.
Writ Petitions fail and are accordingly dismissed.
THOMAS P.JOSEPH, Judge.
cks
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