IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938 OP(Crl.).No. 50 of 2016 (Q) CRL.MP.NO.135/2016 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), THRISSUR PETITIONER : OOMMEN CHANDY S/O K.O. CHANDY, AGED 73 YEARS KAROTTU VALLAKKALIL, PUTHUPALLY, KOTTAYAM DISTRICT. BY SENIOR ADVOCATE SRI.S.SREEKUMAR BY ADVS. SRI.A.TJOSE SRI.C.S.AJITH PRAKASH SRI.M.B.SOORI RESPONDENT(S) : 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031. 2. P.D.JOSEPH EDITOR, ZEAZOR NEWS, THRISSUR THRISSUR-680581. 3. ARYADAN MUHAMMED, HONOURABLE MINISTER FOR POWER, THIRUVANANTHAPURAM, PIN-695001. 4. GANESH KUMAR (EX-MINISTER) THIRUVANANTHAPURAM, PIN-695001. 5. P.A.KESAVAN SECRETARY TO THE HONOURABLE MINISTER FOR POWER, THIRUVANANTHAPURAM, PIN-695001. 6. THE SECRETARY TO THE EX-MINISTER GANESH KUMAR, THIRUVANANTHAPURAM, PIN-695001. 2/- OP(Crl.).No. 50 of 2016 (Q) -2- 7. JIKKUMON SECRETARY TO THE HONOURABLE CHIEF MINISTER (FORMER ADDL. PERSONAL ASSISTANT TO CHIEF MINISTER), THIRUVANANTHAPURAM-695001. 8. DENNY JOPPAN SECRETARY TO THE HONOURABLE CHIEF MINISTER (FORMER ASSISTANT TO CHIEF MINISTER), THIRUVANANTHAPURAM, PIN-695001. 9. SARITHA S. NAIR SOLAR TEAM COMPANY, KOCHI, PIN-682 019. R1 BY PUBLIC PROSECUTOR SMT. HYMA R3 BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.M.A.MOHAMMED SIRAJ SRI.AJAY BEN JOSE SRI.MANJUNATH MENON R4 BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24-06-2016, ALONG WITH OP(CRL.).No.51/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn 3/- OP(Crl.).No. 50 of 2016 (Q) APPENDIX PETITIONER(S)' EXHIBITS : EXHIBIT P1: A TRUE COPY OF THE COMPLAINT. EXHIBIT P2: A COPY OF THE ORDER DATED 28.1.2016. RESPONDENT(S)' EXHIBITS : NIL TRUE COPY P.S. TO JUDGE Mn [CR] [ENTITY], J. [CASE NUMBER] Dated this the 24th day of June, 2016 J U D G M E N T
(i) Is the Magistrate invoking the power under [SECTION] [ACT] merely functioning as a 'Post Office' for forwarding anything and everything filed in the form of a complaint?
(2) Whether a Magistrate invoking the power under [SECTION] [ACT]
shall apply his mind to find out whether it is a complaint of facts constituting an offence?
(3) What should be a complaint on which a Magistrate can invoke the power under [SECTION] [ACT]?
These are precisely the questions to be answered here. [CASE NUMBER]
2. Petitioners in [CASE NUMBER] and [CASE NUMBER] are respondents 1 and 2 respectively in the complaint by the 2nd respondent herein as [CASE NUMBER] before the Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur, alleging offences punishable under [SECTION] and [SECTION], may be intended to be read with [SECTION] of the [ACT]. The 1st respondent in the CMP was the then Chief Minister and the 2nd respondent in the CMP was the then Minister for Electricity of the State of Kerala.
3. The 2nd respondent herein had preferred the complaint based on some revelations allegedly made by a lady named [ENTITY], who is the 8th respondent in the complaint, against these petitioners and some others, before the Commission appointed by the Government to probe into the 'Solar Scam', and also before some newspapers and news channels. The court below, immediately on getting Ext.P1 complaint, straight away [CASE NUMBER] forwarded the same to the Director of VACB, Thiruvananthapuram, for investigation under [SECTION] [ACT], through Ext.P2 order. Inter alia the learned Special Judge has observed in Ext.P2 that "However it is made clear that while forwarding a complaint under [SECTION] [ACT], the Magistrate or the Special Judge is acting as a post office." It was by making such an observation, the court below has chosen to forward the complaint for investigation under [SECTION] [ACT] Aggrieved by Ext.P2 order and also aggrieved by the tenor and contents of Ext.P1 complaint, these petitioners have come up under [SECTION] of the [ACT], for getting Ext.P1 as well as Ext.P2, quashed.
4. Heard Sri. [ENTITY], the learned Senior Counsel for the petitioners, Sri. [ENTITY], the learned counsel for the 4th respondent, Sri. [ENTITY], the learned State Attorney and Smt. [ENTITY], the learned Public Prosecutor.
[CASE NUMBER]
5. The learned Senior Counsel for the petitioners has argued that the court below has given a go by to all the well established norms of law in passing Ext.P2 order. It has also been argued that merely on the matters of 'hearsay', the court below has entertained Ext.P1 complaint and has chosen to forward it for investigation under [SECTION] [ACT] It has been further argued that the revelations allegedly made by the 9th respondent before the Commission inquiring into the 'Solar Scam' cannot be treated as evidence, when it was not made before a court of law, and especially when she has not cared to stand the test of cross-examination. Further, it has been argued that the reports in newspapers, and reports in the news channels etc. could only be treated as merely 'hearsay', which is apparently inadmissible in evidence. According to the learned Senior Counsel, the learned Special Judge has not applied his mind in the matters contained in Ext.P1 and he has assumed the status of a mere 'Post Office' in [CASE NUMBER] mechanically forwarding the matter. It has been argued that without applying his mind, the learned Special Judge ought not to have forwarded the matter in a mechanical manner for investigation under [SECTION] [ACT]
6. According to the learned State Attorney, even though the matter was forwarded by the Special Judge in an easy manner under [SECTION] [ACT], the matter requires reconsideration and in fact the court below ought to have ordered a quick verification in the matter. He has forwarded the said argument in the line that the matter can be remitted for a quick verification.
7. This Court has perused Ext.P1 complaint. On a perusal of Ext.P1 complaint, it seems that the averments in the complaint have not come out of the mind of the complainant at all; whereas, he has taken some revelations made by the 9th respondent herein while she was furnishing a statement before the Commission which inquires into the 'Solar Scam'. Over and above it, the complainant has [CASE NUMBER] narrated some statements made by the 9th respondent herein while she was being interviewed by some newspapers and news channels. Apart from reproducing those statements allegedly made at the instance of the 9th respondent, the 2nd respondent herein has not made any averments in the complaint which was within his personal knowledge.
8. The learned Senior Counsel has pointed out that so far the 9th respondent herein, who had allegedly made those statements before the Commission which inquires into the 'Solar Scam', could not be subjected to cross- examination fully, and she has been deliberately avoiding cross-examination in full.
9. The question to be considered is whether in such circumstances, the so-called statements made by the 9th respondent can be considered as evidence. Much discussion is not required to conclude that such statements cannot be treated as evidence at all. If, as a matter of fact, [CASE NUMBER] there is oral evidence, within the meaning of the [ACT], furnished by the 9th respondent, that could have been relied on to have a quick verification in the matter. At the same time, here there is no evidence at all to show that she had furnished "evidence" before the Commission which inquires into the 'Solar Scam'.
10. It is trite law that newspaper reports regarding the incident can only be treated as merely 'hearsay' in the matter and nothing more. When a reporter has reported some thing, and if it is from his personal knowledge, definitely it can be primary evidence, provided, the said person is examined to prove those statements. If not, it attains only the status of 'hearsay secondary evidence'.
11. The learned Senior Counsel has invited the attention of this court to the decision in [ENTITY] and another v State of Tamil Nadu [(1988) 8 SCC 319] wherein it was held in paragraphs 25 and 26 as follows:
"As to the first, the accused [ENTITY] [CASE NUMBER] [ENTITY] was entitled to tender the newspaper report from the Indian Express of the 29th and the regional newspapers of the 30th along with his statement under [SECTION] of the [ACT]. Both the accused at the stage of their defence in denial of the charge had summoned the editors of Tamil dailies [ENTITY] and [ENTITY] and the news reporters of the Indian Express and [ENTITY] to prove the contents of the facts stated in the news item but they dispensed with their examination on the date fixed for the defence evidence. We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in [SECTION] of the [ACT] by which an allegation of fact can be proved. The presumption of genuineness attached [CASE NUMBER] under [SECTION] of the [ACT] to a newspapers report cannot be treated as proved of the facts reported therein.
26. It is now well-settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna v.
[ENTITY] & others[(1969) 3 SCR 603]. There the question arose whether Shri [ENTITY], the successful candidate returned to Parliament from the Bombay South Parliamentary [CASE NUMBER] Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said:
(SCC p.261, para 47) "A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
12. The attention of this Court has been invited to the decision in [PRECEDENT], relying on the decision in [ENTITY] (supra), wherein it was held in paragraph [CASE NUMBER] 26:
"Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the [ACT]. The paper reports do not specifically refer to the [ACT]. In fact, the Government of Assam itself was not prepared to act on the newspaper reports, as stated in its wireless message. [SECTION] of the [ACT] was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including respondents 2 and
3. But the presumption of genuineness attached under [SECTION] to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay ([ENTITY] Setty v. State of Tamil Nadu [1988 (3) SCC 319]".
The Apex Court has concluded that [CASE NUMBER] newspaper reports regarding such incidents are merely hearsay. The court below ought not to have extended any importance to those matters reproduced by the 2nd respondent in Ext.P1 complaint and the court below ought to have treated it as merely hearsay in nature.
13. It is evident from Ext.P2 that the court below has treated the status of a Special Judge while considering a matter coming up before him with a request for forwarding it for investigation under [SECTION] [ACT], as a 'Post Office'. It seems that the court below had not seriously considered the role of the court in dealing with such a matter and as to how the power under [SECTION] [ACT] had to be exercised. The court below ought to have applied its mind in the matter and the court below ought not to have acted as a mere 'Post Office' in forwarding such a complaint for investigation under [SECTION] [ACT]
14. The approach towards law and the course of law [CASE NUMBER] cannot be static. It changes substantially in the passage of time. Interpretations do varies substantially in the course of time, depending up on the need of the hour. Much waters have been flown under the bridge after the pristine principle of 'the role of Post Office'. The primitive principle of 'the role of Post Office' attributed to courts has been given a go by. The role of a Magistrate invoking the power under [SECTION] [ACT] is no more being regarded as that of a 'Post Office'
15. The learned Senior Counsel has invited the attention of this Court to the decision in [ENTITY] v. State of U.P.[2015 (2) KLT 451(SC)] wherein the nature of the powers to be exercised for invoking [SECTION] [ACT] was considered at length. Their Lordships have held that it needs to be reiterated that the Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind in [CASE NUMBER] invoking the power under [SECTION] [ACT] It was further held therein that such Magistrate has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. It was further held that the lodging of an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the Magistrate, in case there was no proper application of mind. If such powers are exercised without proper application of mind, it also encourages the unscrupulous and unprincipled litigants to take adventurous steps with courts to bring the financial institutions on their knees.
16. In paragraph 26 of the decision in [ENTITY] (supra) it was held:
"At this stage it is seemly to state that power under [SECTION] warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of [SECTION] of the [CASE NUMBER] Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."
17. In [PRECEDENT] the Apex Court has considered the scope of the application of [SECTION] [ACT] and the situation wherein the said power has to be invoked.
"The scope of [SECTION] [ACT] came up for consideration before this Court in several cases. This Court in [PRECEDENT] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under [SECTION] and held that where [CASE NUMBER] jurisdiction is exercised on a complaint filed in terms of [SECTION] or [SECTION] [ACT], the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under [SECTION] against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient.
After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under [SECTION] [ACT], should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
[CASE NUMBER]
18. In [PRECEDENT], it was held that-
"The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under [SECTION] of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in [SECTION] of the Code. Even if a Magistrate does not say in so many words while directing investigation under [SECTION] of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer [CASE NUMBER] could take further steps contemplated in [SECTION] of the Code only thereafter."
19. In [PRECEDENT], it was held that the Magistrate at the time of taking cognizance of an offence may consider whether it is appropriate to send the complaint to the police for investigation under [SECTION] [ACT] or not. It was also held that in the case of a complaint regarding the commission of a cognizable offence, the power under [SECTION] [ACT] can be invoked by the Magistrate before he takes cognizance of the offence under [SECTION] [ACT] However, if he once takes such cognizance and embarks upon the procedure embodied in [SECTION], he is not competent to revert back to the pre- cognizance stage and avail of the power under [SECTION] [ACT]
20. In [ENTITY] (supra), it was held in paragraph 22 as follows:-
[CASE NUMBER] "Recently, in [PRECEDENT] decided on 16.3.2015), while dealing with the exercise of power under [SECTION] [ACT] by the learned Magistrate, a three-Judge Bench has held that:
" the direction under [SECTION] is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed"."
21. Various specific parameters have been prescribed by the Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh and Others [2013 (4) KLT [CASE NUMBER] 632 (SC) = (2014) 2 SCC 1] in the matter of registration of an FIR on complaints. It was held that the registration of an FIR is mandatory under [SECTION] of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence, but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether any cognizable offence is disclosed or not. If the inquiry discloses the commission of a cognizable offence, an FIR must be registered. It was held that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Some of the categories of cases wherein a preliminary inquiry has to be compulsorily conducted prior to ordering the registration of an FIR have also been prescribed, which includes corruption cases. At the most, in such circumstances, when [CASE NUMBER] a complaint is preferred in respect of a corruption case, as per the directions of the Constitution Bench of the Apex Court, a preliminary inquiry is required in the matter. Necessarily, a quick verification has to be ordered when such complaint reveals a probable case of corruption.
22. As per [SECTION] [ACT], "any Magistrate empowered under [SECTION] [ACT] may order such an investigation as above-mentioned". As per [SECTION](1)
(a) [ACT], any Magistrate of the first class, may take cognizance of any offence upon receiving a "complaint of facts which constitute such offence". A 'complaint' within the meaning of [SECTION] [ACT] has an additional qualification that such a 'complaint' should be "a complaint of facts which constitute such offence".
23. "Complaint" is defined under [SECTION] [ACT] as "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an [CASE NUMBER] offence, but does not include a police report." Therefore, the complaint within the meaning of [SECTION] [ACT] should be any allegation made orally or in writing to a Magistrate and the same should be with a view to his taking action under the Code, and that the allegation should be that some person has committed an offence.
24. At the same time, the 'complaint' within the meaning of [SECTION] [ACT] should be such "a complaint of facts which constitute such offence". Only then, a Magistrate is empowered to order an investigation under [SECTION] [ACT] A 'complaint' within the meaning of [SECTION] [ACT] should not be a mere 'complaint' within the meaning of [SECTION] [ACT] alone; whereas, such a 'complaint' should be 'a complaint of facts which constitute such offence'. Mere averments or allegations cannot be considered as facts which constitute an offence. The allegations in the complaint should contain "facts which constitute the offence". Mere allegations or averments [CASE NUMBER] cannot constitute 'facts'.
25. 'Fact' is defined in the [ACT] as, "Fact" means and includes-
(1) any thing, state of things, or relation of things, capable of being perceived by senses; (2) any mental condition of which any person is conscious;
By applying the said principle, it cannot be said that the mere allegations raised by the complainant in Ext.P1 complaint do not contain facts which constitute any of the offences.
26. For getting the power under [SECTION] [ACT] a Magistrate invoking the complaint should not be a mere 'complaint' as defined under [SECTION] [ACT]; whereas it requires some additional qualification also. It should be 'a complaint of facts which constitute an offence'. Therefore, such a 'complaint' should be some thing more than what is [CASE NUMBER] required to constitute a 'complaint' under [SECTION] [ACT] Something styled as a complaint in which matters of merely hearsay have been narrated as the one in this case cannot be treated as a complaint of facts which constitute the offences.
27. Here, even though the learned State Attorney has pointed out that on such a complaint, a quick verification ought to have been ordered by the court below, this Court is of the view that even the requirement of such a quick verification arises only when the complaint reveals at least some probable allegations of corruption. Mere matters of 'hearsay' cannot be treated as probable allegations on which a quick verification can be conducted. Mere revelations made by the 9th respondent before the Commission, which inquires into the 'Solar Scam', cannot be said to be a matter which can be acted upon in any manner when she has not stood for the test of cross-examination fully. Otherwise, the 9th respondent herself ought to have [CASE NUMBER] approached the court below with a request to have her grievance redressed by having a quick verification in the allegations made by her. She could have filed a complaint in the matter, since the matters narrated by the present complainant are matters allegedly within the knowledge of the 9th respondent. At any stretch of imagination, the complainant cannot be permitted to assume the role of the 9th respondent and to say the 9th respondent has such a case. What has been attempted by the complainant through Ext.P1 complaint is virtually the same. Still, it is open to a person to approach the court below with the very same matter in case where he has personal knowledge with regard to those allegations.
28. From all the above, it seems that the court below had acted in a haste. Even when the complaint did not disclose anything to have even a quick verification in the matter, the court below ought not to have forwarded the complaint under [SECTION] [ACT] for an investigation. [CASE NUMBER] The State Machinery has serious business to do. These are not the kind of business which the State Machinery is expected to undertake. Ext.P1 is not a complaint worthy to be accepted or acted upon by a Magistrate or Special Court. Ext.P1 is a perfect illustration as to what constitutes an abuse of the process of the court. Ext.P1, as well as Ext.P2 order passed by the court below on it, are liable to be quashed.
In the result, these Original Petitions are allowed and Ext.P1, as well as Ext.P2 order passed by the court below on it, are hereby quashed.
Sd/- [ENTITY], JUDGE.
ul/aks/stu/-
True copy P.S. to Judge.