IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 1534 of 2011(N) ------------------------- CRIME NO.1597/2010 OF ERAVIPURAM POLICESTATION, KOLLAM PETITIONER(S): --------------- 1. DINIL R, PUTHANPURAYIL,PALLIPPURAM P.O., CHERTHALA, ALAPPUZHA, 2. HARIKUMAR .R., BHAKTHI VILASOM, KOTTAPURAM,ERNAKULAM BY ADV. SRI.M.R.SASITH PANICKER SRI.M.R.SARIN PANICKER RESPONDENT(S): --------------- 1. CENTRAL BUREAU OF INVESTIGATION, REP.BY ITS DIRECTOR, CENTRAL BUREAU OF INVESTIGATION,DELHI-110001 2. STATE OF KERALA, REP.BY ITS HOME SECRETARY, GOVERNMETN SECRETARIAT,THIRUVANANTHAPURAM-695001 3. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS VAZHUTHACAUD, THIRUVANANTHAPURAM-695001 4. SUPERINTENDENT OF POLICE O/O.SUPERINTENDENT OF POLICE KOLLAM-691001 5. DEPUTY SUPERINTENDENT OF POLICE O/OSUPERINTENDENT OF POLICE, KOLLAM-691001 6. KERALA PUBLIC SERVICE COMMISSION REP.BY ITS SECRETARY, O/O.THE KERALA STATE PUBLIC SERVICE COMMISSION THIRUVANANTHPURAM-695001 WP(C) NO.1534/2011 2 7. SUPERINTENDENT OF POLICE(VIGILANCE) KERALA PUBLIC SERVICE COMMISSION AND SECURITY OFFICER)O/O.PUBLIC SERVICE COMMISSION, PATTOM,THIRUVANANTHAPURAM-695001 ADV. SRIP.CHANDRASEKHARA PILLAI ,SC, C.B.I. FOR R1 SRI.ALEXANDER THOMAS,SC,KPSC FOR R6 SENIOR GOVERNMENT PLEADER SHRI C.K.SURESH FOR R2 TO R5 & R7 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C). No.1534 of 2011 -------------------------------------- Dated this the 22nd day of February, 2011. JUDGMENT This petition concerns the concern of petitioner who were candidates in the selection process for the post of Sub Inspector conducted by the Kerala Public Service Commission (for short, “the PSC”), malpractices allegedly committed in the course of the written examination, steps taken by the PSC thereafter and the investigation being conducted into the alleged malpractices. It is the case of petitioners that in the course of written examination two candidates – Manu Chandran and Biju got answers feeded to them through mobile phones from outside, those two candidates were caught red-handed by the vigilance officer of the PSC and handed over to respondent No.7. But respondent No.7 did not take any action and let them free. While so, Chairman of the PSC received a complaint about malpractices committed by one Jayaprakash in an earlier selection process and the Chairman asked respondent No.4 to direct the Sub Inspector, Eravipuram Police Station to conduct investigation into that matter. Accordingly respondent No.5 registered the case in connection with that complaint and started investigation. Respondent No.5 took up the investigation. In the course of investigation respondent No.5 came across alleged malpractice involving Manu Chandran and Biju in the written examination for the post of Sub Inspector and thereon he suo motu registered Crime No.1597 of 2010 against the said Manu Chandran and Biju for offences punishable under Sections 406, WP(C) No.1534/2011 2 417, 468 and 120B read with Section 34 of the Indian Penal Code and started investigation. Manu Chandran was arrested. But, since Biju, a constable by then had gone to Gulf could not be arrested. Manu Chandran when questioned told respondent No.5 that he was left free by respondent No.7. Respondent No.5 then questioned respondent No.7 as to why the latter had not given a complaint to the Police regarding the alleged malpractice and the reason for leaving Manu Chandran and Biju without any action. Petitioners say that respondent No.7 gave either contradictory or unsatisfactory answers for the reason that the person who supplied answers to Manu Chandran and Biju over mobile phones is a close relative of respondentNo.7. According to the petitioners, now there a war of nerve between respondent Nos.5 and 7 and there is an attempt to remove respondent No.5 from the investigation of the case. In the circumstances petitioners prayed that investigation of Crime No.1597 of 2010 of Eravipuram Police Station be entrusted to the Central Bureau of Investigation (for short, “the CBI”) or other officer of higher rank of the State Police not below the the rank of Superintendent of Police. There are also certain other prayers like direction to respondent Nos.2 and 6 to remove respondent No.7 from the post of Superintendent of Police (Vigilance), PSC. Learned counsel submitted that if investigation of the case is taken away from respondent No.5 it would affect proper investigation and if it is to happen, the case may be entrusted to the CBI for investigation. 2. Respondent No.5 has filed a detailed counter affidavit stating the WP(C) No.1534/2011 3 steps he has taken in the course of investigation. Learned Public Prosecutor submitted that respondent No.5 is presently continuing the investigation and that possibility of respondent No.5 being transferred from his present place as per order of the Election Commission on account of the ensuing election to the State Legislative Assembly cannot be ruled out in which case the investigation will have to be continued by the successor in office of respondent No.5 and the State Government has no objection in respondent No.5 being brought back to the present place after the period of ban imposed by the Election Commission is over so that he can continue the investigation if by that time the investigation is not over. Learned Standing Counsel for the PSC submits that the PSC has no objection in handing over investigation to the CBI if this Court deems it necessary. Learned Standing Counsel for the CBI would however contend that this is not a fit case to be entrusted to it for investigation in view of the guidelines prescribed by the Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (2010 (1) KLT 723), that nobody has objection to the investigation being conducted by respondent No.5 and in such a situation it is not necessary to handover investigation to the CBI. Learned Standing Counsel also submits that there is dearth of officers with the CBI to investigate large number of cases entrusted to it. 3. The decision referred supra while upholding the power of the High Court under Article 226 of the Constitution to pass appropriate orders transferring investigation, be it to the CBI states under what circumstances that WP(C) No.1534/2011 4 extra-ordinary power should be exercised. It is stated that when the case involves national or international ramifications or the investigation is being conducted in such a manner that to instill confidence in public mind and to enforce fundamental rights of the citizen to have a fair investigation it is within the power of the High Court to direct investigation by the CBI. Question is whether in the present case such a course is required. 4. So far as investigation conducted by respondent No.5 is concerned, petitioners have no grievance. That is what I could discern from the submissions made by learned counsel. It is the submission of learned counsel that respondent No.5 has taken all effective steps for investigation and has left no stone unturned in the course of investigation. Petitioners have also no objection in respondent No.5 continuing investigation. Learned Public Prosecutor submits that even now respondent No.5 is continuing investigation of the case. I am also not inclined to think that this case comes within the guidelines prescribed by the Supreme Court in the decision cited. In that situation I do not find reason to entrust investigation of the case to the CBI. Hence that request of petitioners cannot be entertained. 5. I stated about the submission of learned Public Prosecutor that respondent No.5 is continuing investigation of the case. According to the learned Public Prosecutor, pursuant to the order that the Election Commission may pass, respondent No.5 may have to be shifted from his present place. If the Election Commission passes such an order in accordance with the law in force to maintain transparency and purity in the election process that is not WP(C) No.1534/2011 5 required to be interfered with by this Court so far as the present case is concerned and hence, if respondent No.5 is shifted to any other place on account of the order of the Election Commission, State Government has no objection in posting respondent No.5 back to his present place after the period of ban is over so that investigation of the case could be continued if it is not already completed by then. That submission of the learned Public Prosecutor is recorded and it is directed that in case of such contingency (if respondent No.5 is shifted to any other place as per order of the Election Commission) he shall be brought back to the present place so that investigation of the case can be continued by him. Respondent No.5 shall continue investigation of the case until otherwise ordered by this Court or till he is shifted to some other place as per the order of Election Commission. I also direct that during the period interregnum the successor in office of respondent No.5 shall continue the investigation. With the above directions and observation this petition is closed. THOMAS P.JOSEPH, Judge. cks