IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 2586 of 2010(W) ------------------------- PETITIONER(S): --------------- D.PRAKASH, S/O.DANIEL, AGED 59 YEARS, ANUGRAHA, SECRETARIAT COLONY,KANJIRAMPARA P.O, THIRUVANANTHAPURAM. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. SECRETARY, COMMERCIAL TAXES DEPARATMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 3. COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 4. V.MURUKESH KUMAR, DEPUTY COMMISSIONER (GENERAL), SALES TAX COMMISSIONERATE, THIRUVANANTHAPURAM. GOVT.PLEADER SRI.P.NANDAKUMAR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 2586 OF 2010 -------------------------------------------- Dated this the 3rd day of February, 2010 JUDGMENT The petitioner, who was the complainant in Crl.M.P.No.1488 of 2009 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram filed this Writ Petition mainly with the following prayer: i. Issue a writ of mandamus or other appropriate writs, orders of directions commanding the first respondent to transfer the petitioner out of Thiruvananthapuram and Kollam Districts in the light of Exhibit P3 Order by considering Exhibit P-5 representation within a time frame to be fixed by this Hon'ble Court. The prayer portion was subsequently amended and the following prayer was added after prayer No.i:- i(a). Issue a Writ of Mandamus or other appropriate Writs, Orders or Directions directing the first respondent to consider and pass orders on Ext.P5 representation within a time frame to be fixed by this Hon'ble Court. 2. The petitioner was an Assistant Commissioner in the Commercial Taxes Department. Admittedly, he along with the fourth respondent conducted a raid at M/s.Binoy Marbles at Ambalamukku, W.P.(C) NO.2586 OF 2010 2 Thiruvananthapuram. Even while the petitioner was in service, he had submitted reports before the superior authorities regarding the misconduct committed by the fourth respondent while conducting the aforesaid raid. Thereafter, the petitioner retired from the service of the Commercial Taxes Department. Later, he submitted an application under the Right to Information Act to get details about the steps taken on the report submitted by him and he was given an information that no action was taken thereon. The main grievance, rather illegality, which the petitioner brought to the notice of the authorities was that a hard disc seized from the office of M/s.Binoy Marbles, Ambalamukku, Thiruvananthapuram was not recorded as a seized article by the fourth respondent and he kept it with him and then, negotiated with the dealer and obtained substantial unlawful gains. Feeling indifference and dubious attitude on the part of the authorities, the petitioner has filed the aforesaid Crl.M.P. The Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram passed Ext.P3 order on the said complaint and forwarded it under Section 156(3) of the Code of Criminal Procedure for conducting a vigilance enquiry into the allegations incorporated in the complaint.. The relevant portion of Ext.P3 reads thus:- Hence this complaint is forwarded under S.156(3) Crl.P.C to the Director, VACB for conducting a vigilance enquiry into the allegations raised in the complaint. It is made clear that only a preliminary W.P.(C) NO.2586 OF 2010 3 enquiry is warranted to bring out a prima-facie case if any and 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 two months. 3. It is obvious from Ext.P3 that the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, forwarded the complaint under Section 156(3) of the Criminal Procedure Code to the director of Vigilance and Anti Corruption Bureau for conducting a vigilance enquiry into the allegations raised in the complaint. At the same time, it was made clear therein that only a preliminary enquiry is warranted to bring out a prima facie case if any and if materials are collected warranting investigation, case shall be registered and forward the same to the court and then only to proceed with the investigation. Thus, at this point of time, it cannot even be said that a proceeding has initiated against the fourth respondent based on the petitioner's complaint. However, the petitioner contends that since a preliminary enquiry is to be conducted by the Director of Vigilance and Anti Corruption Bureau in terms of Ext.P3, the continuance of the petitioner in the said office, especially taking note of his official status, would hamper the very prospect of the said enquiry. There is a likelihood of the fourth respondent influencing the witnesses and making the investigation a farce, it is submitted. Therefore, according W.P.(C) NO.2586 OF 2010 4 to him, it is only proper for the competent authorities to place him under suspension or to transfer him from the present office. To support and sustain his contention especially with regard to the maintainability of the Writ Petition with the said prayers, the petitioner placed reliance on Ext.P6 judgment of this Court in O.P.36185/2007. A scanning of Ext.P6 judgment would reveal that the case of the petitioner stands on a totally different footing. The petitioner cannot succeed in this Writ Petition relying on Ext.P6 judgment. That was a case where criminal cases are pending before the court and of course, the petitioner therein was the defacto complainant. In this case it is true that the petitioner has filed Crl.M.P before the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram. But, the direction in Ext.P3 would reveal that the Court of Enquiry Commissioner and Special Judge was of the opinion that a preliminary enquiry is warranted even to bring out a prima facie case against the fourth respondent. As per Ext.P3, if materials are collected warranting investigation, a case has to be registered and F.I.R has to be forwarded to the court before proceeding with investigation. Therefore, according to me, it is too premature to presume that the fourth respondent has committed any offence or misconduct as alleged by the petitioner. In such a situation, the petitioner is not even entitled to maintain this Writ Petition and, at any rate, there is absolutely no merit in the contention of the W.P.(C) NO.2586 OF 2010 5 petitioner, in the circumstances obtained in this case, that the fourth respondent should either be placed under suspension or be transferred from the present station. Those are matters to be considered by competent authorities at the appropriate time taking into account the attendant circumstances. There is no merit in the Writ Petition. Accordingly, the Writ Petition is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.2586 OF 2010 6 C.T. RAVIKUMAR, J. W.P.(C). NO. 2586/2010 JUDGMENT 3rd February, 2009