IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 11TH APRIL 2007 / 21ST CHAITHRA 1929 Crl.Rev.Pet.No. 734 of 2007() ----------------------------- CRMP.588/2006 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... REVN. PETITIONER: REVISION PETITIONER/COMPLAINANT ------------------------------------------------- MADATHIL MARAKAR HAJI,S/O.KUNJU MOIDEEN, MADATHIL HOUSE,VALLUMBRAM DESOM,POKOTTOOR VILLAGE, ERNAD TALUK,MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU & SRI. ALAN PAPALI. RESPONDENTS: RESPONDENTS/COUNTER PETITIONERS AND STATE ------------------------------------------------------ 1. VAKKOM B.PURUSHOTHAMAN,BINDU,POTHUJANAM ROAD,KUMARAPURAM,MEDICAL COLLEGE P.O, THIRUVANANATHAPURAM. 2. BIJU PURUSHOTHAMAN,BINDU,POTHUJANAM ROAD, KUMARAPURAM,MEDICAL COLLEGE P.O, THIRUVANANATHAPURAM. 3. BINU PURUSHOTHAMAN,BINDU,POTHUNAJAM ROAD, KUMARAPURAM,MEDICAL COLLEGE P.O,TRIVANDRUM. 4. DR.RAJAGOPAL,S/O.KODOTH NARAYANAN NAIR, LEKSHMI,N.P.P.NAGAR,KADAKAMPALLI VILLAGE, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.RATNA SINGH (SR.) FOR R1 BY ADV. SRI.M.AJAY FOR R1 TO R4 BY PUBLIC PROSECUTOR SRI. P.K. SURESH FOR R5. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------------ Crl.R.P. No.734 of 2007 ------------------------------------------ Dated this the 11th day of April, 2007. ORDER Can the Enquiry Commissioner and Special Judge (hereafter referred to as 'the Special Judge'), on receipt of a complaint under Section 190 of the Code of Criminal Procedure ('the Code', for short), issue an order to the officers of Vigilance and Anti-Corruption Bureau ('VACB', for short) to conduct a “preliminary enquiry” or “vigilance enquiry” while forwarding a compliant under section 156(3) of the Code? Can such direction be issued, as per the provisions contained in the Code or the Vigilance Manual? Can such enquiry be ordered, following the dictum laid down by the Supreme Court in P.Sirajuddin v. State of Madras (AIR 1971 SC 520)? These are the main questions to be examined in this revision. FACTS, BRIEFLY: 2. A complaint was filed by revision petitioner against respondents 1 to 4, under Section 190 of the Code, alleging offences under sections 7 and 13 of the Prevention of Corruption Act ( 'the P.C. Act', for short) and also under section 120-B of the Indian Penal Code (`IPC', for short) etc. As per the allegations in the complaint, first accused was holding [Crl.R.P.734/07] 2 office as Finance Minister in the State Cabinet during the period from 15.11.2004 to 28.7.2005. The accused 2 and 3 are his children and 4th accused is his son-in-law. All the accused, allegedly, in furtherance of common intention, to amass wealth by corrupt and illegal methods conspired and acquired property worth lakhs of rupees in Thiruvananthapuram District. 3. It is also alleged that the first accused, by abusing his official position, devised a plan to obtain valuable property, measuring large extent of land for his near relatives. According to complainant, accused 2 and 4 did not have sufficient source of income to purchase so much of properties and hence there are reasons to believe, (which can be proved by materials) that first accused, who by sheer abuse of his position as Finance Minister, by corrupt and illegal means obtained huge sums of money and used that money for the benefit of accused nos.2 to 4. The entire source, according to complainant, is traceable only to first accused's corrupt practices. 4. According to complainant, while first accused is allegedly liable independently for offences under sections 7 and 13 of the P.C. Act, others are also liable for same offence, under section 120B of IPC. On knowing that a complaint is filed, accused-second respondent filed Crl.M.P.627/2006 before the court below praying that complaint should not be taken on file for various reasons. The lower court took a view that the court is not expected to hear the accused or consider the merit of his contentions at that particular stage of the case and the complaint was numbered. [Crl.R.P.734/07] 3 COURT DIRECTED ENQUIRY BY VACB: 5. Learned Special Judge forwarded the complaint to the Director, Vigilance and Anti-Corruption Bureau ('VACB', for short), with a direction that a "vigilance enquiry" shall be conducted into allegations levelled against accused/counter-petitioners. The lower court also ordered that if materials are collected in the enquiry warranting further investigation, then a case shall be registered and FIR be forwarded to the Court. It was also held that if sufficient materials are not obtained in such enquiry requiring further investigation, a report shall be submitted before the court below. This was done, as per order dated 30.8.2006. 6. In pursuance of the direction issued by the court below, a detailed enquiry itself was conducted. Several persons were examined and various documents were perused by VACB. A report was filed by the Superintendent of Police, VACB, Special Cell stating that the allegations made in the complaint are not established in evidence. On getting the report and on considering various aspects, the court below found that no materials are available to proceed with the complaint and the offences alleged therein are not made out and therefore, the complaint was dismissed. (It was also observed that follow up action, as recommended by the VACB shall be taken by the Inspector General, Registration in respect of the document specified to be undervalued, expeditiously). PETITIONER'S CONTENTIOINS: 7. Sri.Alan Pappali, learned counsel appearing for revision petitioner [Crl.R.P.734/07] 4 strongly contended that the order under challenge is per se illegal and contrary to the provisions contained in the Code of Criminal Procedure ('the Code' for short). The court below dismissed the complaint mainly on the basis of the report filed by the Superintendent, VACB, according to which, respondents 2 to 4 were having sufficient source for purchasing properties and that the funds were not provided by first respondent and that no materials are available to suggest that first respondent had misused his position as a public servant to acquire property etc. Learned counsel for petitioner submitted that the court cannot dismiss the complaint on the basis of an enquiry report filed by VACB. It was also pointed out that the lower court found that the allegations in the complaint, prima facie, disclose offences alleged against the accused and hence it ought to have taken cognizance of offence under Section 190 of the Code. If the court decides not to take cognizance of the offences also, the only other alternative left to the court is to forward the complaint for investigation under section 156(3) of the Code and not to order an enquiry by VACB, it is argued. 8. But, neither of the two courses which are open to the court, as per the provisions of the Code were followed by the court. Instead, the court forwarded the complaint to the Director, VACB and directed him to conduct a 'preliminary enquiry'. According to petitioner, this is contrary to the provisions contained in the Code and hence, illegal. It was also argued that when a complaint is forwarded to the police and an information relating to a cognizable offence is received at the police station, the police shall register [Crl.R.P.734/07] 5 an FIR, as per section 154 of the Code and proceed to investigate, as per the provisions of the Code. But no preliminary enquiry can be conducted by police, prior to registration of FIR, it is argued. RESPONDENTS' CONTENTIONS: 9. Learned counsel appearing for 1st respondent, Sri.M.Retna Singh, vehemently argued that the procedure adopted by the court below is perfectly legal and in tune with the dictum laid down by the Supreme Court in P.Sirajuddin v. State of Madras (AIR 1971 SC 520) and also a decision of this Court, in Biju C.Valluvanadan v. State of Kerala (2004(3) KLT 296) which was rendered, following the ratio in Sirajuddin's case. The court below only acted in accordance with the principles enunciated in those decisions and hence, the impugned order does not warrant any interference. 10. It was strenuously argued that unless a "preliminary enquiry" is conducted by VACB, it is likely that any unscrupulous complainant can harass an honest public servant, by filing a cleverly-drafted complaint, constituting all the ingredients of the offences but that may be discouraged by the court, in the interest of justice and more particularly, in the light of the principles laid down by the Supreme Court in Sirajuddin's case. It was submitted that the prevalent practice of issuance of directions for a 'preliminary enquiry' by VACB prior to registration of FIR is quite safe and proper and it may be allowed by this court to continue. DOES 'SIRAJUDDIN'S SUPPORT THIS? 11. On hearing both sides, I find that the mooted issue centers around [Crl.R.P.734/07] 6 the dictum laid down in Sirajuddin's case. Therefore, to resolve the issue, I must first understand as to what exactly is the dictum in Sirajuddin's case. In Sirajuddin's case, it was a complaint filed against a Chief Engineer which was addressed to the Chief Minister of the State and also another Minister, alleging various offences under the Prevention of Corruption Act. On receipt of the above complaint, the Chief Minister asked the Director, VACB, to make a confidential enquiry. Thereafter, the government received a note from the Director casting serious aspersions on the Chief Engineer's reputation and also disclosing a few instances of his lack of probity. The Chief Minister then, ordered the Secretary to immediately look into the matter and asked the Director, VACB to pursue the investigation further. Thereupon, a detailed enquiry was conducted by the VACB by examining several witnesses and also verifying records. A charge-sheet was also launched against the Chief Engineer, alleging offences under the P.C. Act etc. 12. The Chief Engineer/accused filed a petition for quashing the above proceedings of enquiry and also sought for discharging him, on the ground that the charge was frivolous. He also filed writ petition before the High Court to quash the order of the Special Judge. A revision petition was also filed by him against the order of the Special Judge. Before the High Court, it was argued that there was violent departure from the provisions of the Code, in the matter of investigation and hence, cognizance of offences by the court is illegal . The High Court held, partly in favour of accused and the order of the Special Judge was quashed and certain directions were also issued to the [Crl.R.P.734/07] 7 Special Court. 13. The Supreme Court considered the correctness of the order passed by the High Court and also the rival contentions raised in the matter in detail and it was held in Sirajuddin's case, as follows: “In our view the procedure adopted against the appellant before the laying of the first information report, though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister , it was his duty to direct an enquiry into the matter. The Chief Minister in our view pursued the right course. ......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.. . . . . . ... When the inquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.”(Emphasis supplied) PRELIMINARY ENQUIRY APPROVED: 14. A reading of Sirajuddin's case reveals that in that case, a 'preliminary inquiry' was conducted by Vigilance and Anti-Corruption Department into the allegations made against a public servant regarding commission of offences under the P.C. Act, by examining large number of [Crl.R.P.734/07] 8 witnesses and by perusing several documents. The Supreme Court observed that the procedure adopted in conducting a preliminary enquiry is not in terms, forbidden by law. Though certain adverse observations are made by the Supreme Court regarding the nature of the 'preliminary enquiry' conducted by VACB, the Supreme Court was of view that conduct of such enquiry was only proper. BUT, ENQUIRY NOT ORDERED BY COURT: 15. But, the most crucial aspect to be noted here is that the 'preliminary enquiry' conducted in Sirajuddin's case, was not as per the order of the COURT but, it was ordered by the CHIEF MINISTER. Therefore, what the Supreme Court considered and approved in Sirajuddin's case is the legality and propriety of the procedure adopted by the CHIEF MINISTER in ordering 'preliminary enquiry' and not that of any order issued by the COURT for such enquiry. The Supreme Court found that the direction issued by the Chief Minister for 'preliminary enquiry' is legal because, such a procedure was consistent with the procedure to be followed in the State of Madras, as per the relevant Manual. 16. In cases where the Government receives complaints against a public servant about commission of offences under the P.C.Act, the Chief Minister of State of Madras had the power to issue such orders for enquiry and VACB was bound to conduct such enquiry. The Supreme Court found that Vigilance and Anti-Corruption Department was set up in the State of Madras, entrusting with the conduct of an enquiry for the purpose of finding out [Crl.R.P.734/07] 9 whether there is prima facie evidence of guilt of the officer and whether criminal proceedings are to be resorted to in cases where complaints are received by the government, Chief Minister etc. 17. VACB and the Chief Minister were bound to follow the procedure in the Manual in that State, since it was intended for the protection of honest public servants and to prevent any unnecessary harassment being caused to such officers. It is in the above background that the Supreme Court observed that when allegations of acts of dishonesty are made against a public servant, there must be suitable preliminary enquiry into such allegations before ordinary law of the land takes its course and further enquiry is proceeded with, in terms of the code, by lodging first information report. 18. But the Supreme Court had no occasion to consider in Sirajudin's case whether a Special Judge is empowered by any of the provisions of the Code or under the Manual to order a “preliminary enquiry”, or any other form of enquiry, on receipt of a complaint under Section 190 of the Code. There is nothing in Sirajuddin's case to show that the Special Judge can direct VACB to conduct a "preliminary enquiry", while forwarding a complaint under section 156(3) of the Code. It is relevant to note at this juncture what this court held, referring to Sirajuddin's case, in Raghunathan v. State of Kerala (2001(3) KLT 444). Here is the extract: “so, the decision of the Supreme Court cannot be understood as one which lays down the proposition that in all cases preliminary enquiry has to be conducted by the [Crl.R.P.734/07] 10 Vigilance department before a crime is registered in that Department”. 19. I am in full agreement with the above observation on a reading Sirajuddin's case. In my humble view, the decision of the Supreme Court in Sirajuddin's case cannot be understood to lay down the proposition that the Special Judge can direct an officer of the Vigilance Department to conduct a 'preliminary enquiry' while forwarding a complaint under Sectin 156(3) of the Code and before registration of the FIR. What is held in Sirajuddin's case is that the CHIEF MINISTER is empowered to order `preliminary enquiry' by VACB but, there is nothing therein to show that the Special Judge can direct VACB to conduct a 'preliminary', 'detailed', 'formal' or vigilance enquiry under the provisions of the Code or any other provision. Therefore, the order passed by the Special Judge in a complaint received by him under Section 190 of the Code to conduct 'vigilance enquiry' or 'preliminary enquiry' by VACB cannot be said to be in tune with the dictum laid down by the Supreme Court in Sirajuddin's case. SPECIAL JUDGE TO FOLLOW THE CODE: 20. Every criminal court is bound to act in accordance with the provisions contained in the Code, while dealing with criminal cases, unless any Special Statute provides to the contrary. There is no Special Law which prohibits application of the Code to the proceedings before the Special Judge. No provision was pointed out by either side to show that the Special Judge can adopt any procedure other than what is laid down in the Code, while [Crl.R.P.734/07] 11 dealing with complaints involving offences under the P.C. Act. Therefore, the Special Judge has to act only in accordance with the procedure laid down in the Code, on receipt of a complaint under section 190 of the Code. OPTIONS UNDER THE CODE: 21. On a joint reading of sections 190, 156(3) and 202 of the Code, I find that five options are available to the Magistrate who is empowered under Section 190 of the Code or authorised to take cognizance of the offence in the complaint as the case may be. Those are: i) he may take cognizance of the offence by himself; ii) he may order an investigation by the police under section 156(3) of the Code; iii) he may enquire into the case himself under Section 202 for the purpose of deciding whether or not there is sufficient ground for proceeding; iv) he may direct under section 202 of the Code, an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not, there is sufficient ground for proceeding; [such order shall not be passed except in cases where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or in cases where the complaint has not been made by a Court unless complainant and the witnesses present (if any) have been examined on oath under Section 200 of the Code], v) he may not take cognizance of the offence and drop the proceedings, if the complaint does not disclose any offence or if he is satisfied that it is frivolous or vexatious. 22. It is settled by now that the above provisions are applicable to the [Crl.R.P.734/07] 12 proceedings before the Special Judge also. The Special Judge may, therefore, act in accordance with Sections 190, 156(3) or 202 etc. of the Code, while dealing with private complaints received under Section 190 of the Code. Referring to Section 190 of the Code, learned counsel for respondent submitted that the Special Judge is not bound to take cognizance of the offence, even if the facts alleged in the complaint disclose the commission of an offence. A three-judges bench of the Supreme Court held in Devarapally Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252 as follows: “It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with “must take cognizance”. The word “may” gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.” 23. Thus, there is nothing illegal, if the Special Judge fails to take cognizance of the offence alleged in the complaint, on receipt of a complaint under Section 190 of the Code, even if the court finds that the allegations in the complaint constitute an offence. The expression used in Section 190 is “may” and hence, the Special Judge may or may not take cognizance of the offence by itself and he is not bound to take cognizance of the offence [Crl.R.P.734/07] 13 under Section 190 of the Code. In cases where sanction under Section 197 (1) of the Code is a pre-requisite for taking cognizance of the offence, the court will be, in fact, prohibited from taking cognizance of the offence, in the absence of sanction. 24. As per Section 197(1) of the Code, when a public servant of the nature referred to therein is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence, except with the previous sanction of the relevant government. So, in cases to which section 197 applies, there is a bar for the court to take cognizance of offence, in the absence of requisite sanction. But, the bar under section 197(1) only prohibits the court from taking cognizance of offence, but it does not interdict the court from ordering investigation under Section 156(3) of the Code. Thus, in cases in which the Special Judge finds that the complaint discloses an offence under the P. C. Act and still, he does not propose to take cognizance of the offence, he will be empowered to adopt the second option and order an investigation under section 156(3) of the Code by the relevant officer of VACB. POLICE / VACB SHALL REGISTER FIR: 25. The officers of VACB are 'police officers', and the office of Director and certain other offices of VACB are notified as `police stations'. Therefore, officer in charge of such office must follow the procedure laid down in the Code, on receipt of information relating to an offence and there is no reason [Crl.R.P.734/07] 14 why he should depart from the procedure laid down in the Code. Section 154 of the Code provides that the police officer in charge of a police station shall enter substance of every information relating to the commission of a cognizable offence in a book to be kept by such officer in such form, as the State Government may prescribe in this behalf ie., the form of FIR. The expression used in section 154 is 'shall' and not 'may' and hence, it is mandatory for the police officer in charge of a police station to register the FIR, on receipt of information relating to commission of a cognizable offence. 26. It is held by the Supreme Court in various decisions that even if a court does not direct in so many words that an FIR should be registered, while ordering investigation under Section 156(3) of the Code, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because, only thereafter, he can take further steps contemplated in Chapter XII of the Code. It is held by the Supreme Court in Mohd. Yousuf v. Afaq Jahan,(2006) 1 SCC 627 (vide also Suresh Chand Jain v. State of M.P.,(2001) 2 SCC 628) as follows: “ Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) 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 could take further steps contemplated in Chapter XII of the Code only thereafter.” [Crl.R.P.734/07] 15 27. A Division Bench of this court also