IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED ::12-07-2010 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.9077 of 2010 A.K.Viswanathan ... Petitioner -vs- 1.State of Tamil Nadu, rep.by the Principal Secretary to Government, Home Department, Fort St.George, Chennai-600 009. 2.The Chief Secretary to Government, Fort St.George, Chennai-600 009. 3.The Vigilance Commissioner, Fort St.George, Chennai-600 009. 4.The Director, Vigilance and Anti-Corruption, Chennai-600 028. 5.Deputy Superintendent of Police, Vigilance and Anti-Corruption, Chennai City III, Chennai-600 035. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus. For petitioner : Mr.V.Selvaraj For respondents : Mr.P.S.Raman, Advocate General, assisted by Mr.N.Senthil Kumar, ` Additional Govt.Pleader. https://hcservices.ecourts.gov.in/hcservices/ O R D E R What is sought for in this Writ Petition is a mandamus, forbearing respondents 4 and 5 from conducting any enquiry against the petitioner based upon the decision said to have been taken on 28.08.2009 by respondents 1 to 3. 2. According to the petitioner, he was selected by the Union Public Service Commission for appointment as an IPS Officer and was allotted to Tamil Nadu Cadre; he is holding the position of Inspector General of Police; during February,2009, he was working as Additional Commissioner of Police, (Law and Order), Chennai City; on the orders of Mr.Radhakrishnan, the then Commissioner of Police, he came to High Court on the forenoon of 19.02.2009 to oversee the security arrangements in the High Court apropos the appearance of Dr.Subramaniam Swamy before the High Court; at about 14.45 hrs., the then Commissioner of Police called him over phone and directed him to go to B2 Esplanade Police Station and monitor the surrender of advocates connected in Crime No.13/09 on the file of B4 High Court Police Station; he has nothing to do with the planning and execution of the situation arising out of the said crime; there was firing of tear gas shells and lathi charge; the Hon'ble High Court initiated Suo Motu W.P.No.3335/2009 apropos the incidents in the Court campus on 19.02.2009; on the direction of High Court to submit the names of the officers who ordered the entry of police into the High Court campus and ordered lathi charge, Mr.Radhakrishnan filed a false and malicious report dated 18.03.2009, stating that the officers at the spot including him (the petitioner) took a collective decision to disperse the mob using force; it is totally a false report; on the basis of the said report, this High Court, by an order dated 18.03.2009, ordered his suspension from service; thereafter, he filed a Special Leave Petition (Civil) No.7540 of 2009 before the Hon'ble Supreme Court and the order of this High Court ordering his suspension was not given effect to; Mr.Radhakrishnan, the then Commissioner of Police alone was responsible for the incidents in the High Court campus and there were attempts to persuade him not to contradict the report of Mr.Radhakrishnan. 3. While so, on 28.08.2009, a committee consisting of the Chief Secretary, Home Secretary and the Vigilance Commissioner had ordered a vigilance enquiry against him, which he came to know only through newspapers; he has not been given a copy of the order; the Deputy Superintendent of Police, Vigilance and Anti-Corruption, met him and served a questionnaire, for which, he gave a reply to fifth respondent on 09.12.2009; on 18.01.2010, he received a letter from fifth respondent stating that Executive Engineer, PWD, Chennai, would evaluate his house and he asked for a copy of the report of the PWD Engineer, who evaluated his house, which is not furnished to him. https://hcservices.ecourts.gov.in/hcservices/ 4. It is also the case of the petitioner that he is an IPS Officer governed by the All India Services Act and the rules framed thereunder; the enquiry conducted by respondents 4 and 5 against him is not based upon any legal authority; subjecting All India Service Officers to such illegal enquiries results in the administration being paralysed; he was subjected to an illegal enquiry on account of his stand in Suo Motu W.P.No.3355 of 2009 and the connected writ petitions and Suo Motu Contempt Petition No.1278 of 2009 and hence he filed this Writ Petition. 5. Respondents have filed a counter affidavit, stating that the writ petition is not maintainable and the petitioner ought to have approached the Central Administrative Tribunal; based on the preliminary report of the appropriate enquiry authority, as prima facie materials were available, a detailed enquiry by the Directorate of Vigilance and Anti-corruption was ordered to be conducted against the petitioner, for accumulation of disproportionate assets to his known sources of income; in respect of any enquiry by the Directorate of Vigilance and Anti-Corruption and in the matter relating to any offence under criminal law, the State Government is well within its jurisdiction to order any enquiry; the requirement to obtain sanction arises only on or before any prosecution is launched by filing a charge memo and that the petitioner, who belongs to All India Service, cannot claim any immunity from any enquiry by the Directorate of Vigilance and Anti-Corruption, when prima facie materials are available which establish possession of assets disproportionate to his known sources of income. 6. It is also stated in the counter that the enquiry now ordered is only a fact finding enquiry on the basis of complaints received and materials available with the Government; the committee is constituted as a safeguard and filter against officers of the All India Services from being harassed by allegations; the enquiry is only to ascertain whether any prima facie case is made out against the petitioner so as to proceed further and, therefore, the writ petition is premature and misconceived and the same is liable to be dismissed. 7. The contentions of the learned counsel for the petitioner are as under : (i)By virtue of Entry 70 of List I- Union List of the VII Schedule to the Constitution of India, the Parliament alone has legislative competence in respect of All India Services. (ii)The All India Services Act, the rules framed thereunder and the Public Servants Inquiries Act alone are applicable to All India Service Officers and the Administrative orders, if any, supplementing the All India Services Act and the rules framed thereunder can be issued only by the https://hcservices.ecourts.gov.in/hcservices/ Central Government under Article 73 of the Constitution and, therefore, there is no scope for the State Government to pass any executive order exercising powers under Article 162 to supplement the All India Services Act and the rules framed thereunder. (iii)The questionnaire served on the petitioner by the fifth respondent as well as the investigation done by him, who is an officer below in rank to the petitioner, is an abuse of process of law. (iv)The Manual of Directorate of Vigilance and Anti- Corruption is contrary to law, opposed to public policy and the executive directions contained in the manual have to be rejected. (v)Claiming powers under the Manual of Directorate of Vigilance and Anti-Corruption, the Government is targeting officers who are not amenable to its dictates and the executive instructions contained in the said Manual should be ignored. (vi)The State Government is initiating the investigation of cases under the Prevention of Corruption Act, thus destroying the purpose for which the Act was enacted by the Parliament. 8. Learned counsel for the petitioner has relied upon the following decisions : (i) P.Sirajuddin v. State, AIR 1968 MADRAS 117 : "6....While it can be stated as a general principle that not every piece of information however vague intangible and indefinite need be recorded as first information report under Section 154 Cr.P.C. To start an investigation it is equally clear that to permit a preliminary enquiry before recording the first information report even after definite information as the commission of an offence is received would be to destroy the value of the first information report and equally to provide room for fabrication of cases. If the first information could be recorded after a detailed enquiry into the offence conducted, there is the danger and temptation to incorporate in the first information report details and circumstances advantageous to the prosecution. S.154 only provides for the receipt of information relating to the commission of a cognizable offence; that is, the information should be such that it enables the police to come to the conclusion that a cognizable offence has been committed...." https://hcservices.ecourts.gov.in/hcservices/ "22. Such being the scope of Sec.251-A, infraction of the provisions of the Code in the matter of investigation brought to the notice of the Court before the framing of charge cannot be passed over leaving the accused to stand trial for charges framed on material gathered in violation of the provisions of the Code. No doubt illegality committed in the course of investigation does not affect the competence or jurisdiction of court for trial. Where cognisance of a case had in fact been taken and the case had proceeded to terminate the invalidity of the preceding investigation, it has been held repeatedly, does not vitiate the result, unless miscarriage of justice has been caused thereby. But the position would be different, if the illegality is discovered at the early stage of the proceeding...." (ii) P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : "17.....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 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...." (iii) S.N. Sharma v. Bipen Kumar Tiwari, AIR 1970 SUPREME COURT 786 : "7..... It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not https://hcservices.ecourts.gov.in/hcservices/ contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code." (iv) State of Haryana v. Bhajan Lal, AIR 1992 SUPREME COURT 604 : "62. The sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. It needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of ‘Divine Power’ which no authority on earth can enjoy." https://hcservices.ecourts.gov.in/hcservices/ "99. The Supreme Court in State of Bihar v. J.A.C. Saldanha (AIR 1980 SC 326) (supra) examined the question whether, when the investigation was in progress, the High Court was justified in interfering with the investigation and prohibiting or precluding further investigation in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. On the facts of that case, this Court set aside the order of the High Court quashing the order of the Magistrate in postponing the consideration of the report submitted to him till the final report of completion of further investigation, directed by the State Government was submitted to him and held that the High Court in exercise of its extraordinary jurisdiction committed a grave error in giving the direction virtually amounting to mandamus to close the case before the investigation was complete." "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. https://hcservices.ecourts.gov.in/hcservices/ (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. https://hcservices.ecourts.gov.in/hcservices/ (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (v) Dr H. Mukherjee v. S.K. Bhargava, AIR 1996 SUPREME COURT 1760 : "6. The Tribunals under the Act are thus conferred with the exclusive jurisdiction, powers and authority exercisable immediately before the appointed day by all courts (except the Supreme Court) in relation to the matters set out in clauses (a), (b) and (c) of sub-section (1) of Section 14. The question is whether the present suit does fall under any of the said clauses. We do not think that it does. The suit appears to be one based on alleged tortious acts of the defendant committed with a view to harass the plaintiff and cause him mental pain and injury. At this stage, it is not our province to say whether the allegations are true or false. We have to take the plaint allegations as they stand. We also assume for the purpose of this appeal that such a suit does lie according to law since no contention to the contrary has been urged before us nor was urged before the civil court or the High Court. This is a pure action for damages for deliberately harassing the plaintiff by passing several vindictive and mala fide orders and proceedings and also by fabricating official records. Such a suit for damages is certainly not within the province of Section 14." (vi) T.T. Antony v. State of Kerala, (2001) 6 SCC 181 : "25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Articles 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice." https://hcservices.ecourts.gov.in/hcservices/ (vii) M.C. Mehta v. Union of India, AIR 2007 SUPREME COURT 1087 : "7. CBI Manual, thus, is subject to the provisions of the Code of Criminal Procedure. In case of conflict, although none has been pointed out, evidently, the Code of Criminal Procedure shall prevail. Even under ordinary law, the investigating officer has a statutory duty to investigate into an offence upon receipt of a first information report as envisaged under Section 154 of the Code of Criminal Procedure. Section 157 thereof provides for the procedure for investigation, wherefor the only duty cast on the investigating officer is to maintain his case diary in terms of Section 172 of the Code of Criminal Procedure. (See State of Bihar and Another v. P.P. Sharma, I.A.S. And Another 1992 Supp.(1) SCC 222). 8. It is beyond any doubt or dispute that investigation of an offence is the field exclusively reserved for the police. It may be subject to supervision of higher ranking officer(s) but the court’s jurisdiction to have control in this behalf is beyond any controversy." (viii) Divine Retreat Centre v. State of Kerala, AIR 2008 SUPREME COURT1614 : "16. The well-defined and demarcated functions in the field of crime detection by the police and its subsequent adjudication by the courts is so well known and had been recognised way back in Emperor v. Khwaja Nazir Ahmad1. The Privy Council observed that just as it is essential that everyone accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry..." https://hcservices.ecourts.gov.in/hcservices/ "33. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one’s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself. 34. In our view, the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither are the accused nor the complainant or informant entitled to choose their own investigating agency to investigate a crime in which they may be interested. 35. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non- compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for https://hcservices.ecourts.gov.in/hcservices/ the observance of process as provided for in the Code." 9. Conversely, the learned Advocate General appearing for the respondents would contend that the subject matter of the Writ Petition is a service matter within the meaning and purview of Section 14 of the Administrative Tribunals Act,1985, and hence this Writ Petition is not maintainable; the entire enquiry, which is impugned in the Writ Petition, is being undertaken under the procedures laid down in the Manual of Directorate of Vigilance & Anti Corruption; the enquiry contemplated under the Vigilance Manual is completely an 'indoor enquiry' which is initiated only for the limited purpose of ascertaining whether there are any prima facie materials against any officer against whom allegations have been made and if such prima facie materials are found to be available in the enquiry, the authorities concerned would thereafter decide whether to pursue the matter through criminal law by instituting necessary FIR under the Prevention of Corruption Act or by following the procedure set out therein and also the Criminal Procedure Code; the enquiry is a filter and check against unnecessarily instituting criminal case or departmental proceedings against senior officers particularly belonging to All India Service and hence no interference is called for in the said enquiry, which is a fact finding process. 10. To substantiate his contentions, the learned Advocate General has relied on the following authorities : (i) P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : "17..... 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 no 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 https://hcservices.ecourts.gov.in/hcservices/ persons involved in the matter and to examine documents which have