IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.MC.No. 3696 of 2010() ------------------------------------- CC.9/2008 OF THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM .................... PETITIONER(S): ACCUSED --------------------------------------- V.T.DEVASIA, S/O.THOMAS, AGED 65 YEARS, VAIPPICHERRY, VAZHAPPALLY, CHANGANASSERI, KOTTAYAM-686 103, (FORMERLY VILLAGE OFFICER, EDATHUA). BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): STATE ------------------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION, ALAPPUZHA DISTRICT. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. 3. STATE OF KERALA, REP. BY ITS SECRETARY, REVENUE DEPARTMENT, TRIVANDRUM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 4. COMMISSIONER AND SECRETARY TO THE GOVERNMENT, VIGILANCE (A) DEPARTMENT, TRIVANDRUM. R1 TO R4 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/03/2011, ALONG WITH CRMC.NO.3685 OF 2010 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 --------------------------------------- Dated this 17th day of March, 2011 ORDER In one of the vernacular dailies a news item appeared regarding alleged malpractices in the supply and implementation of flood relief scheme. The Government sent a letter (Annexure- III) with the paper cutting to the Director of Vigilance to conduct a preliminary enquiry and submit report. While so, one P.V.Venugopalan approached this Court with O.P.No.10393 of 1996 seeking a direction to register a case and investigate into the matter. This Court directed the departmental enquiry to be completed within two months (from the date of judgment) and the Government was directed to take a decision within two months from the receipt of enquiry report. The Revenue Divisional Officer of the district concerned conducted a departmental enquiry and he submitted a report to the District Collector who forwarded the same to the Government. The Government according to the petitioners, after studying the report decided that further vigilance enquiry in the matter is not necessary. Grievance of petitioners is that without referring to the said Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 2 :- Government order (Annexure-VI) the Director of Vigilance granted sanction to the Dy.S.P, VACB, Alappuzha to register a case against petitioners and others for offence punishable under Secs.13(1)(C) r/w Sec.13(2) of the Prevention of Corruption Act (for short, “the PC Act”) and Secs.468, 471, 477A r/w Sec.120B of the Indian Penal Code (for short, “the IPC”). Accordingly the Dy.S.P registered a case against petitioners and others (Annexure-VIII is the FIR) and conducted investigation. It is submitted that final reports are filed against petitioners and others, cognizance for the said offences is taken and the cases - C.C.Nos.4 of 2008, 7 of 2008, 8 of 2008, 9 of 2008, 10 of 2008 and 11 of 2008 are pending. The final reports were originally filed in the Court of Special Judge and Enquiry Commissioner, Thiruvananthapuram and later the cases were transferred to the Court of learned Special Judge and Enquiry Commissioner, Kottayam (for short, “the Special Judge) where the cases were given the above said numbers. Learned Special Judge framed charge against petitioners and others in the above said cases. Petitioners approached this Court in Crl.M.C.Nos.2892 of 2008. This Court disposed of that Crl.M.C by order dated 24-02-2010 observing that the grounds set up in the criminal miscellaneous cases were not urged before the learned Special Judge. This Court by Annexure-XI, order permitted petitioners to urge those Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 3 :- contentions before the Special Judge. Thereafter those contentions were urged before the learned Special Judge who by separate orders dated June 14, 2010 repelled the contentions and found that there is no infirmity in the registration of the case, investigation and submission of final reports. Petitioners challenge the said orders, FIRs, final reports and cognizance taken in the said cases in Crl.M.C.Nos.3723 of 2010, 3685 of 2010, 3698 of 2010, 3696 of 2010, 3725 of 2010 and 3735 of 2010. Learned counsel for petitioners contend that registration of the cases is without authority in that the vigilance department has overruled direction of the Government that it is not necessary to register a case on the facts and circumstances and conduct a vigilance enquiry. It is also submitted by the learned counsel that a thorough enquiry was conducted by the department and it resulted in Annexure-V, report based on which the Government issued Annexure-VI, order which has not been taken into account by the vigilance department. Learned counsel submitted that allegations against petitioners having being proved to be untrue in the disciplinary proceeding, the Government having accepted the same and directed not to conduct any vigilance enquiry, registration of the cases is unwarranted. Reliance is placed on the decisions in P.S Rajya Vs. State of Bihar (1996)9 SCC 1, Gopikant Choudhary Vs. State of Bihar and Ors. (2000 Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 4 :- KHC 1401) and State of Himachal Pradesh Vs. Nishant Sareen (2011 KHC 4977). Learned Public Prosecutor appearing for respondents contend that a direction to conduct vigilance enquiry was given by the Government to the Director of Vigilance even before Annexure-VI order, accordingly a preliminary enquiry was conducted, it revealed that there is substance in the allegations against petitioners and accordingly cases were registered. That was investigated and final reports were filed based on which learned Special Judge has taken cognizance and the cases are pending trial. It is contended that if in the preliminary enquiry commission of a cognizable offence is revealed it is within the power of the vigilance department to register a case and investigate and that cannot be stalled by the order issued by the Government. Learned Public Prosecutor contended that registration of the case and investigation which follows are governed by the Code of Criminal Procedure (for short, “the Code”). 2. It is seen from Annexure-III, order dated 20.11.1995 issued by the Commissioner and Secretary to the Government to the Director of Vigilance investigation appending the press cutting (relating to the alleged malpractices in the supply and implementation of flood relief scheme) that the Government directed the Director of Vigilance to conduct a preliminary Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 5 :- enquiry and report. It is accordingly that the vigilance department started enquiry as a preliminary step for deciding whether a case has to be registered or not. This obviously was done in view of the decision of the Supreme Court in P.Sirajuddin Vs. State of Madras (AIR 1971 SC 520) that whenever a complaint is received it is not as if the department is to register a case forthwith since such a course would affect the morale of not only the officer concerned but tarnish image of the department also. In such situation before registering a case the vigilance department has to conduct a preliminary enquiry to ascertain whether the complaint is bonafide and there is reason to proceed further. Based on Annexure-III, order the vigilance department conducted a preliminary enquiry. It is while so that P.V.Venugopalan approached this Court with O.P.No.10393 of 1996. Annexure-IV is the judgment of this Court dated September 18, 1996. This Court observed that the stand of the second respondent therein (District Collector, Alappuzha) was that vigilance enquiry is not required. This Court observed in paragraph 4 of the judgment that it is not stated by the District Collector what is the outcome of the enquiry already undertaken by the (revenue) department into the various allegations raised and that if large amounts are siphoned off by the revencue officials under the guise of flood relief scheme, the State Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 6 :- Government should take up the matter with all its earnestness and the enquiry be completed at the earliest. If preliminary enquiry revealed that there was large scale corruption during the said period a detailed enquiry by the vigilance would be warranted. The (revenue) department was directed to complete the departmental enquiry within two months from the date of receipt of a copy of the judgment and the Government was directed to consider whether the vigilance enquiry would be necessary. A decision in the matter was directed to be taken by the Government within a period of two months from the date of receipt of a copy of judgment. I stated that even before Annexure- IV, judgment was passed the Government had directed as per Annexure-III, order dated 20.11.1995 to conduct a preliminary enquiry and accordingly a preliminary enquiry by the vigilance started. In the light of Annexure-V, report submitted by the revenue officials relating to the departmental enquiry the Government issued Annexure-VI, order dated 12.09.1997 that the Government have decided that since an exhaustive enquiry into the matter was conducted by the Revenue Divisional Officer, Alappuzha in which each allegation has been gone into in detail and found not true to facts “a further vigilance enquiry into the same matter is unlikely to bring forth further evidence which would go contrary to the finding of the Revenue Divisional Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 7 :- Officer”. In the above circumstances the Government decided that further vigilance enquiry in the matte is not necessary. 3. I stated that notwithstanding the said order the department proceeded with the preliminary enquiry, according to them found that allegations are bonafide and with substance and thereon proceeded to register first information reports against petitioners and others. It is seen from the statement filed by the Superintendent of Police, VACB, Alappuzha that the VACB Alappuzha unit had completely enquired under PE 54/95/ALP as ordered by the Government (vide Annexure-A3). In other words, as per the statement submitted, even before the Government issued Annexure-VI, order directing that further vigilance enquiry in the matter is not necessary the vigilance department had completed preliminary enquiry and reached the conclusion that registration of FIRs is necessary. 4. On the above factual matrix the question that arises for a decision is whether registration of the FIRs even after Annexure-VI, order, the investigation conducted pursuant to that and the final reports suffer from any infirmity as known to law. 5. I shall refer to the decision learned counsel has adverted to, P.S Rajya Vs. State of Bihar (supra). That was a case where in the departmental enquiry the allegations having been found to be false, a further enquiry by the vigilance was Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 8 :- found not warranted. I must understand the particular facts and circumstances of the case in which the said decision was rendered. That was a case where allegation was that a public servant had amassed wealth disproportionate to his known source of income. The main allegation was concerning a building acquired by the public servant. In the departmental enquiry the Engineers engaged by the department conducted a thorough enquiry, valued the building and came to the conclusion that the building is valued at a particular amount. In the enquiry conducted by the CBI, it happened that the very same Engineers who had valued the building in the departmental enquiry were directed to value the building and they complied. At that time, they came with a much larger figure as value of the building which did not tally with the earlier valuation they made. It was argued before the Supreme Court on behalf of the public servant concerned that the very same Engineers who had given report earlier to the income tax department, later at the instance of the CBI, presumably under pressure gave a different valuation for the building in question based on which the CBI registered the case. That conduct of the officials was not approved by the Supreme Court. It was held that valuation made by the very same Engineers subsequently at the instance of CBI cannot be accepted in the light of the report they had already given Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 9 :- assessing value of the building. It is seen from paragraph 24 of the decision that the Supreme Court even expressed anguish at the way the CBI had conducted enquiry in that case. Records revealed that a number of adjournments were taken by the CBI for getting instructions to withdraw from the prosecution. After taking a number of adjournments, ultimately the CBI decided to leave the matter to the Court's decision. Thus, circumstances revealed that CBI was in two minds as to whether it should proceed with the prosecution in view of the conflicting reports submitted by the same Engineers regarding valuation of the building. Having regard to the facts and circumstances of the case Supreme Court held that the proceeding initiated by the CBI cannot stand and it was quashed. 6. The above decision in my view has no application to the facts of the case on hand. In this case the departmental enquiry was conducted by revenue department to which the petitioners belonged. The Revenue Divisional Officer after conducting the enquiry submitted a report which was favourable to the petitioners. The Government had decided to conduct a preliminary enquiry into the matter by the vigilance department and accordingly, Annexure-III, order was issued. Based on Annexure-III, order the vigilance conducted a preliminary enquiry and found that there is prima facie case against petitioners, Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 10 :- registration of the case and investigation is necessary. It is not as if the very same officers who conducted departmental enquiry has conducted the preliminary enquiry as well. This Court in Ayoob Ismail Vs. State of Kerala (2008(4) KLT 977) held that the mere fact in the departmental enquiry a public servant has been exonerated is no ground to interfere with the vigilance enquiry. Both operate on different fields. Hence for the mere reason that in the departmental enquiry the Revenue Divisional Officer found the allegations against petitioners to be not correct, it cannot be said that proceeding against petitioners are liable to be quashed. 7. I shall also advert to the other decisions that learned counsel has relied upon. Gopikant Choudhary Vs. State of Bihar and Ors. and State of Himachal Pradesh Vs. Nishant Sareen (supra) concerned the question whether once the Government decided not to grant sanction to prosecute the public servant, it was open to the Government to review that order and grant sanction. In both the cases, the Minister in charge of the portfolio decided not to grant sanction on the materials on record. The Chief Minister reconsidered the issue and decided to grant sanction. The Supreme Court held that though it is within the power of the State Government to review its order, on facts it was held that review was not warranted and accordingly orders Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 11 :- granting sanction were set aside. 8. I stated that the mere fact that departmental enquiry turned out to be in favour of petitioners by itself is no ground to drop vigilance enquiry and further proceeding. The trump card of petitioners is Annexure-VI, order whereby the Government directed that there is no possibility of better evidence being obtained in vigilance enquiry and hence Government has decided in the light of the report submitted by the Revenue Divisional Officer not to pursue the matter and accordingly it was directed that no further vigilance enquiry is required. Question arises whether the Government could do so . May be the vigilance department is acting and functioning under the direction of the Government. But, that does not affect the power of vigilance department to conduct a preliminary enquiry on receipt of a complaint and if a prima facie case is made out in such enquiry to register a case, conduct investigation and submit final report. That is because conduct of preliminary enquiry is in the light of the decision of the Supreme Court in P.Sirajuddin Vs. State of Madras(supra) and registration of a case in case a cognizable offence is revealed is in accordance with the mandatory duty of the vigilance department under sec.157 of the Code. The power to investigate a cognizable offence come under Sec.154 of the Code. This Court had occasion to consider a similar situation in Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 12 :- Reghuchandrabal Vs. State of Kerala (2009(4) KLT 245). There, of course as pointed out by learned counsel for petitioners the first information report had already been registered and after investigation the final report was filed. The question arose whether final report can be filed without the approval of the departmental authorities. This Court held that the Code does not provide for any approval for submission of final report from departmental superior authority and to insist so, will be against the provisions of the Code. There is no reason why that principle should not be applied in the case of registration of case as well if the vigilance department on receipt of a complaint and on preliminary enquiry is satisfied that a prima facie case is made out and registration of the case is required. In this case in the preliminary enquiry, commission of a cognizable offence is revealed, it is governed by the provisions of Sec.157 of the Code. Annexure-VI, order cannot take away the power and duty of vigilance department to register a case once in the preliminary enquiry it is satisfied that a prima facie case is made out. Nor could Annexure-VI, order prevent the vigilance department from investigating the case once a case is registered and submitting a final report. I must also bear in mind that it is on the premise that there is no possibility of collecting better evidence that the Government thought that further enquiry by the vigilance is not Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 13 :- required. As it stands, the said impression of the Government is proved to be not correct, in that the vigilance department was able to collect materials, submit final report and based on that, the learned Special Judge found reason to take cognizance and issue process to the petitioners. I also bear in mind that the learned Special Judge found that there is sufficient ground to proceed against petitioners and accordingly framed charge. Learned counsel has invited my attention to G.O.P.No.65/1992 issued by the State Government and in particular clause 4(iii) which stated that the vigilance department should not initiate enquiries suo moto even when the complaint is made in person and that the vigilance department should invariably report such complaints to the Government which will issue necessary direction in the matter. That situation does not arise in this case. 9. It is also relevant to refer to Annexure-IV, judgment of this Court where this Court did not rule out the need for a vigilance enquiry. Instead, what this Court directed is that if the preliminary enquiry (initiated by the vigilance department pursuant to Annexure-III, order) revealed that there has been large scale corruption during the said period, a detailed enquiry by the vigilance is warranted. Thus, registration of the case is in accordance with the provision of Code and the direction of this Court Court in Annexure-IV, judgment. For the above reasons I Crl.M.C.Nos.3685, 3696, 3698, 3723, 3725 and 3735 of 2010 -: 14 :- do not find reason to interfere in the matter. Resultantly these petitions fail and are accordingly dismissed. But I direct learned Special Judge to dispose of the cases untrammeled by any observation or finding if any contained in this order as to the merit of the cases. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge