IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH MAY 2011 /3RD JYAISHTA 1933 Crl.MC.No. 2379 of 2010() ------------------------- CRMP.679/2010 of ENQUIRY COMMR. & SPL. JUDGE, THRISSUR .................... PETITIONER IN CRL.MC/ACCUSED IN CRL.MP: --------------------------------------------------------------------- P.K.MURALIKRISHNAN, S/O.KRISHNAN, POOVATHUMKADAVIL HOUSE, KUZHIKKATTUSSERY DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S) IN CRL.MC.-STATE/COMPLAINANT AND OTHERS IN CRL.MP.: ------------------------------------------------------------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE ADDITIONAL CHIEF SECRETARY, SECRETARY TO VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, THRISSUR. 4. SHRI.N.RAJAGOPALAN, DISTRICT JUDGE, ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE), THRISSUR. 5. SHRI.AKBAR, S/O.ABDUL KAREEM, ADVOCATE, KUNNATH HOUSE, KOZHIKADA DESOM, PULLUT VILLAGE, KODUNGALLORE, THRISSUR DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR R4 BY ADV. SRI.S.SREEKUMAR R5 BY ADV. SRI.S.RAJEEV THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.2379 of 2010 ==================================== Dated this the 24th day of October, 2011 O R D E R By separate order on Crl. M.A. No.6733 of 2011 passed this day by dictation in open court I have recalled the order dated 25.05.2011 disposing of Crl. M.C. No.2379 of 2010. 2. Petitioner appears in person. Petitioner states and makes an endorsement in the Crl.M.C. that allegations he has made against the 4th respondent is not being pursued and that he has no objection in removing the 4th respondent from the array of parties. Submission is recorded and accordingly the 4th respondent is removed from the array of parties. Registry shall delete the 4th respondent from array of parties and make the necessary correction in the cause title. 3. This Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (for short, “the Code”) is in challenge of Annexure-N, order passed by the learned Enquiry Commissioner and Special Judge, Thrissur (for short, “the Special Judge”) on 11.06.2010 on Crl. M.P. No.679 of 2010. The 5th respondent filed complaint against petitioner who at the relevant Crl. M.C. No.2379 of 2010 -: 2 :- time was functioning as Additional Legal Adviser to the Vigilance and Anti Corruption Bureau (for short, “the VACAB”) and prosecuting the cases of VACB in the court of learned Special Judge alleging that he, along with the second accused, brother of petitioner committed offences punishable under Sections 7 to 13 of the Prevention of Corruption Act (for short, “the Act”) and Sections 177, 182, 211, 383, 465, 467, 468 and 469 of the Indian Penal Code (for short, “the Penal Code”). The learned Special Judge, along with the complaint considered a refer report dated 18.05.2010 filed by the Deputy Superintendent of Police, Crime Detachment, Thrissur before the learned Judicial First Class Magistrate, Irinjalakuda and the order dated 31.01.2006 issued by then Director General of Prosecution to come to the conclusion that a prima case is made out against petitioner warranting the registration of a case under Sec.156(3)of the Code. Accordingly Annexure-N, order was passed and the complaint was forwarded to the Dy.S.P, VACB, Thrissur for investigation under Sec.156(3) of the Code. The said order is under challenge on various grounds. 4. Petitioner who appeared in person argued that learned Special Judge was not correct in passing the impugned order at a time when petitioner was working as above stated, attached to the same court. According to him judicial propriety required the learned Special Judge to inform the High Court and Crl. M.C. No.2379 of 2010 -: 3 :- get a transfer of the complaint to some other court. It is also contended that Annexure-M, complaint was preferred by the 5th respondent who was a former Government Pleader of this Court on account of personal grudge to the second accused, brother of petitioner for filing a complaint against him and others to the Irinjalakuda Police for offence punishable under Sections 406 and 420 of the Penal Code concerning certain property transactions. It is contended by petitioner that the learned Special Judge at any rate should have ordered a preliminary enquiry to be conducted to ascertain the truth of allegations contained in Annexure-M, complaint before registering a case. It is contended by petitioner that a prima facie case is different from prima facie truth or otherwise of the allegations contained in the complaint. Reliance is placed on the decision in P.Sirajuddin and Others v. State of Madras and Others (AIR 1971 SC 520), Ashok Tshering Bhutia v. State of Sikkim (AIR 2011 SC 1363), Sathish v. Enquiry Commissioner and Special Judge (2003 (3) KLT 480) and Antony Cardoza v. State of Kerala (2011 (1) KLT 946). The further contention petitioner has raised is that the Special Judge gets jurisdiction to entertain and direct investigation only if any offence punishable under the Act is involved but in this case apart from referring to Crl. M.C. No.2379 of 2010 -: 4 :- offences punishable under Secs.7 to 13 of the Act it is not specifically stated which provision of the Act is involved. It is pointed out by petitioner that Sec.13 of the Act contains various sub sections and if the complaint is forwarded to the police for investigation as directed by the learned Special Judge, it follows that the police will have to register a case under all the sub- sections of Sec.13 of the Act even when Annexure-M, complaint does not contain necessary averments to satisfy the requirement of all sub-secs of Sec.13 of the Act. In the circumstances it is contended that Annexure-N, order cannot stand. 5. Learned counsel for the 5th respondent in response contended that it was within the power of learned Special Judge to direct an investigation by the police when the learned Special Judge is prima facie satisfied of correctness of the allegations in the complaint. It is also submitted by learned counsel that there is nothing improper in the learned Special Judge directing such an enquiry. I have heard learned Public Prosecutor also who supplemented the arguments of learned counsel for 5th respondent. 6. The Supreme Court in P.Sirajuddin and Others v. State of Madras and Others has highlighted the need to hold a preliminary enquiry before a case is registered against the public servant coming within the purview of the Act. That is Crl. M.C. No.2379 of 2010 -: 5 :- because, disgruntled elements might raise various allegations against a public servant and if on receipt of such compliant the court directs a case to be registered, that would affect the morale of not only the Officer concerned but also the department to which be belongs. To avoid that, it is appropriate that the court directs a preliminary enquiry before a case is registered. That is the gist of the decision in P.Sirajuddin and Others v. State of Madras and Others which has been followed by this Court in Sathish v. Enquiry Commissioner and Special Judge where the Division Bench gave a direction (notwithstanding the order for investigation issued by the learned Special Judge) to conduct preliminary enquiry before a case is registered. These decisions have been followed by the learned Single Judge in Antony Cardoza v. State of Kerala. 7. Though in Madathil Marakar Haji v. Vakkom B.Purushothaman (2007 [4] KLT 659) there is an observation that Sec.156(3) of the Code does not empower the Special Judge to direct a preliminary enquiry and that in situation where court proposes to initiate action under the said section the court is empowered to direct an investigation and not a preliminary enquiry, this Court in G.S.Prakash & Others v. State of Kerala and Others (2011 [2] KLJ Crl. M.C. No.2379 of 2010 -: 6 :- 832) distinguished that decision in the light of the Division Bench decision in Sathish v. Enquiry Commissioner and Special Judge which relied on by the decision in P.Sirajuddin and Others v. State of Madras and Others. This Court observed in G.S.Prakash & Others v. State of Kerala and Others that direction of the Division Bench in Sathish v. Enquiry Commissioner and Special Judge notwithstanding that there was order of investigation of the case to conduct a preliminary investigation before registration of the case was not referred to in Madathil Marakar Haji v. Vakkim B.Purushothaman. Therefore it is necessary having regard to the facts and circumstances of the case, rather appropriate that the court before directing a case to be registered orders a preliminary enquiry to be conducted to find whether the allegations are prima facie true or not. As pointed out by petitioner there is a distinction between a prima facie case and the existence of truth of allegations made in the complaint. It is to ascertain the latter that a preliminary enquiry is to be conducted. 8. I do not forget that in Annexure-N, order learned Special Judge has given his own reasons for departing from the ordinary rule of a preliminary enquiry and directing investigation. One document which learned Special Judge referred to is the Crl. M.C. No.2379 of 2010 -: 7 :- refer report dated 18.05.2010 submitted by the Dy.S.P, Crime Detachment, Thrissur. There, petitioner was not a party though he is stated to have been questioned as a witness. According to the petitioner he was not even questioned at all. It is not necessary for me go to into that question as well. Other material which the learned Special Judge has referred is the order passed by the then Director General of Prosecution. 9. Having regard to the facts and circumstances I am inclined to think that there was no necessity to deviate from the directions in P.Sirajuddin and Others v. State of Madras and Others followed by this Court in Sathish v. Enquiry Commissioner and Special Judge and Antony Cardoza v. State of Kerala. It follows that before directing an investigation of the case learned Special Judge ought to have directed a preliminary enquiry to be conducted by the Officer concerned to find whether or not there is prima facie truth in the allegations contained in Annexure-M, complaint and the other materials on which the learned Special Judge has passed the impugned order. 10. Now the next argument is regarding the judicial propriety in the learned Special Judge directing investigation against petitioner. The mere fact that petitioner was acting as the Additional Legal Adviser to the VACB or conducting prosecution of cases of the VACB in the same court did not preclude learned Crl. M.C. No.2379 of 2010 -: 8 :- Special Judge from exercising his statutory power and duty vested under Sec.156(3)of the Code. I am not inclined to think that in such situation it was required that the Judge concerned requested the High Court to transfer the case to some other court. That depends on the facts and circumstances of the case. The mere fact that petitioner happened to be the Additional Legal Adviser of the VACB or was conducting prosecution cases of the VACB in that court did not deter the learned Special Judge from exercising his judicial function. To hold so, will bring in unwarranted situation. Petitioner at this stage submitted that following Annexure-N, order he has been transferred to Kozhikode. May be, that is the appropriate course but I need not go into that question since as I found, merely for the reason that petitioner was the Additional Legal Adviser of the court concerned that affected the judicial power of learned Special Judge to act in accordance with the law. I reject that contention. 11. Petitioner has yet another contention that certain other vigilance enquiry is going on against him and that allegations in the present petition concerns those allegations. That is not a matter which I am required to gone into at this stage. 12. Further it is contended that Annexure-M, complaint does not disclose any offence so that the learned Special Judge Crl. M.C. No.2379 of 2010 -: 9 :- could have exercised his power. I have gone through the averments in Annexure-M, complaint. On going through the said complaint I am not inclined to accept the plea of petitioner that it does not disclose any prima facie case. Of course I leave it to the Officer who is to conduct the enquiry whether there is prima facie truth in the allegations. The contention that the complaint itself was not maintainable cannot be accepted. In the light of what I have stated above Annexure-N, order requires modification in that instead of the Officer straight away registering the case against petitioner, it is directed that the Officer concerned shall conduct a preliminary enquiry and if in the preliminary enquiry (quick verification) it is revealed that there is prima facie truth in the allegations warranting investigation, it is open to the appropriate authority to register a case and proceed with the matter as provided under law. The Crl. M.C. is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv