IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 19TH APRIL 2011 / 29TH CHAITHRA 1933 WP(C).No. 8472 of 2011(H) ------------------------- CRL.M.P.NO.397/2010 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM PETITIONER(S): --------------- 1. G.S. PRAKASH, T.C 27/926, SABARIGIRI, VANCHIYOOR.P.O, THIRUVANANTHAPURAM. 2. K. VIJAYAKUMAR, T.C 542/850(3), SIVADAM, MUTTAHTARA, VALLAKADAVU.P.O, THIRUVANANTHAPURAM. 3. V. VIJAYAKUMARAN, PUNNAVILAKATH PUTHEN VEEDU, PANATHURA, PACHALLOOR.P.O, THIRUVANANTHAPURAM. 4. SANDYAKUMARI, SANGEETH NAGAR, 119, T.C 24/393, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE POONTHOTTAM SRI SUJITH MATHEW JOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -01. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001. 3. THE SUB INSPECTOR OF POLICE, VANCHIYOOR POLICE STATION, THIRUVANANTHAPURMA - 695 035. 4. RADHAKRISHNAN, THOPPIL HOUSE, TC 34/1072-1, SREE CHITHIRA NAGAR, VALLAKADAVU, THIRUVANANTHAPURAM - 695 008. R1 TO R3 BY GOVT. PLEADER SMT.M.K.PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/04/2011, ALONG WITH WP(C) NO.9174/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.8472/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 31.12.2009 OF THE JOINT REGISTRAR (GENERAL) THIRUVANANTHAPURAM EXT.P2 TRUE COPY OF THE CMP NO.397/2010 FILED BEFORE THE SPECIAL JUDGE, THIRUVANANTHAPURAM EXT.P3 TRUE COPY OF THE ORDER DATED 30.03.2010 IN CMP NO..397/2010 OF SPECIAL JUDGE, THIRUVANANTHAPURAM EXT.P4 TRUE COPY OF THE QUICK VERIFICATION REPORT EXT.P5 TRUE COPY OF THE REPORT OF VIGILANCE SP EXT.P5(a) CERTIFIED COPY OF THE RECOMMENDATION OF THE DIRECTOR VACB ALONG WITH A TYPED COPY EXT.P6 TRUE COPY OF THE FIR IN CRIME OF VANCHIYOOR POLICE STATION EXT.P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE FIRST PETITIONER EXT.P8 COPY OF THE ADMISSION REGISTER IN RESPECT OF THE FIRST PETITIONER EXT.P9 TRUE COPY OF THE COUNTER FOIL IN RESPECT OF THE RECEIPT OF PAYMENT MADE BY THE FIRST PETITIONER EXT.P10 TRUE COPY OF THE APPLICATION SUBMITTED BY THE SECOND PETITIONER EXT.P11 TRUE COPY OF THE ADMISSION REGISTER IN RESPECT OF THE SECOND PETITIONER EXT.P12 TRUE COPY OF THE COUNTER FOIL IN RESPECT OF THE RECEIPT OF PAYMENT MADE BY SECOND PETITIONER EXT.P13 TRUE COPY OF THE MINUTES OF THE COMMITTEE MEETING HELD ON 23.12.2003 EXT.P14 TRUE COPY OF THE MINUTES OF THE MEETING DATED 27.02.2003 EXT.P15 TRUE COPY OF THE STATEMENT GIVEN BY D.SHAJU, THE JUNIOR COOPERATIVE INSPECTOR EXT.P16 TRUE COPY OF THE STATEMENT GIVEN BY THE ASSISTANT REGISTRAR EXT.P17 TRUE COPY OF THE STATEMENT GIVEN BY THE FIRST PETITIONER EXT.P18 TRUE COPY OF THE STATEMENT GIVEN BY THE SECOND PETITIONER EXT.P19 TRUE COPY OF THE STATEMENT GIVEN BY THE THIRD PETITIONER EXT.P20 TRUE COPY OF THE STATEMENT GIVEN BY THE FOURT PETITIONER EXT.P21 TRUE COPY OF THE STATEMENT GIVEN BY THE FORMER SECRETARY EXT.P22 TRUE COPY OF THE SECTION 66 REPORT DATED 30.09.2010 //TRUE COPY// “C.R.” THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C). Nos.8472 of 2011 & 9174 of 2011 -------------------------------------- Dated this the 19th day of April, 2011. JUDGMENT These Writ Petitions filed under Article 226 of the Constitution of India are in challenge of orders passed by the learned Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, “the Special Judge”) under Sec. 156(3) of the Code of Criminal Procedure (for short, “the Code”) directing the Vigilance and Anti Corruption Bureau (for short, “the V&ACB”) to conduct a preliminary enquiry and register a case if materials indicating commission of offences as alleged in the private complaints are disclosed and if not, report the matter to the learned Special Judge. The following questions of law are urged for a decision: I. Whether, in view of Sec. 68A of the Kerala Co-operative Societies Act,1969 (for short, “the Act”) it was within the power of learned Special Judge to direct the V&ACB to conduct an enquiry/investigation and the V&ACB to enquire/investigate into matters relating to a Co-operative Society registered under the Act? WP(C) Nos.8472 & 9174/2011 2 II. Whether, it was within the power of learned Special Judge to direct a preliminary enquiry to be conducted by the V&ACB before registering a case while passing an order under Sec. 156(3) of the Code? 2. Some facts are necessary for appreciation of the contentions and decision of the questions raised. 3. In W.P.(C) No.8472 of 2011, respondent No.4 filed Ext.P2, complaint against petitioners and two others. Gist of the allegations is that manipulating the admission register of Vanchinadu Housing Co-operative Society (for short, “the Society”), names of certain persons were incorporated in the said Register to make it appear that they were duly enrolled as members of the said Society and to facilitate that, applications preferred by the real members of the Society were manipulated. Petitioners (public servants connected with the Society) and others did so, for illegal gratification. Respondent No.4 alleged that petitioners and others committed offences punishable under Secs.120B, 465, 468, 470 and 471 of the Indian Penal Code (for short, “the IPC”) and Sec.13 of the Prevention of Corruption Act, 1988 (for short, “the PC Act”). On receipt of Ext.P2, complaint learned Special Judge passed Ext.P3, order dated March, 30, 2010. Ext.P3, order reads as follows: “This complaint is forwarded u/s.156(3) crlpc to the Director, Vigilance and Anti Corruption Bureau for conducting a Vigilance Enquiry into the allegations WP(C) Nos.8472 & 9174/2011 3 raised in the complaint. 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 three months.” Pursuant to Ext.P3, order a Vigilance Officer conducted a quick verification (or enquiry, as it is called) and submitted Ext.P4, report to the Director, V&ACB through proper channel (Superintendent of the V&ACB). In that report, the Vigilance Officer stated that his enquiry revealed commission of offences punishable under Secs.465, 468, 471 and 120B of the IPC (regarding fake membership of the Society) but, no evidence could be obtained for commission of criminal misconduct (punishable under the PC Act) against petitioners. Other accused in Ext.P2, complaint were exonerated in that report. The Superintendent of the V&ACB forwarded the said report to the Director, V&ACB vide Ext.P5 reiterating the conclusions in Ext.P4, report and recommending that the local Police may register a case against petitioners for offences punishable under the IPC. The Director, V&ACB forwarded the report to the Additional Chief Secretary to the Government vide Ext.P5(a), report dated 16.11.2010 with copy to the Superintendent of Police, Southern Range, Thiruvananthapuram. Based on the said report, the Vanchiyoor Police registered Ext.P6, FIR against petitioners for offences punishable under Secs. 468, 471 and 120B read with Sec. 34 of the IPC. The suo motu report prepared by the Sub Inspector, WP(C) Nos.8472 & 9174/2011 4 Vanchiyoor is appended to Ext.P6, FIR. There, he has stated that report of quick verification (preliminary enquiry) was forwarded to the Commissioner of Police, Thiruvananthapuram which ultimately reached the Vanchiyoor Police and accordingly Ext.P6, FIR is registered. Following registration of Ext.P6, FIR, Vanchiyoor Police started investigation into the offences punishable under the IPC referred to in Ext.P6 against petitioners. In W.P.(C) No.8472 of 2011, prayer is to call for records leading to Exts.P4, P5 and P6, quash the same and declare that the Act being a self-contained special statue which governs the administration of a Society registered under the said Act and provides for an enquiry and investigation by a competent Police Officer appointed under Sec.68A of the Act into allegations of misappropriation, etc., a parallel enquiry or investigation is without authority and hence is illegal. 4. In W.P.(C) No.9174 of 2011 the Society involved is the Thiruvananthapuram Taluk Integrated Silk Handloom Weaver's Co-operative Society Ltd (again for short, “the Society”) . Respondent No.4 filed Ext.P1, complaint before learned Special Judge against petitioner (accused No.2 in the complaint) and four others. There, offences alleged are under Secs.120B, 403, 406, 409, 420, 465, 468 and 471 read with Sec.34 of the IPC and Secs.5, 7, 8, 11 and 13 of the PC Act. Learned Special Judge passed Ext.P2, order under Sec.156(3) of the Code (which is similar to Ext.P3, order in W.P.(C) No.8472 of 2011 and extracted above). The vigilance Officer has started the preliminary enquiry. In W.P.(C) No.9174 of 2011, it is prayed that Ext.P2, order may be WP(C) Nos.8472 & 9174/2011 5 quashed. A declaration as to illegality in the parallel enquiry/investigation as prayed for in W.P.(C) No.8472 of 2011 is prayed for in W.P.(C) No.9174 of 2011 also. Point No.I 5. It is argued by the learned counsel for petitioners that a parallel enquiry or investigation by the V&ACB is barred in view of the special provision contained in Sec.68A of the Act. It is contended by the learned counsel that when the special statute (i.e., the Act) is self-contained and has in-built provision for enquiry or investigation into any misappropriation or other malpractices which has allegedly occurred in a Society coming within the purview of the Act, such enquiry or investigation has to be conducted in accordance with the said provision and hence a parallel enquiry or investigation by the V&ACB is not contemplated. 6. Sec.68A of the Act reads: “68A. Vigilance Officer.- (1) The Government shall appoint an officer, not below the rank of Deputy Inspector General of Police, as Vigilance Officer with powers to enquire into and investigate the cases of misappropriation, corruption and any other major irregularities in the society as may be referred to him by the Registrar. WP(C) Nos.8472 & 9174/2011 6 (2) The Vigilance Officer shall conduct the inquiry and investigation in such manner, as may be prescribed. (3) The Vigilance Officer shall be under the administrative control of the Registrar of Co-operative Societies. Provided that the powers of the Registrar of Co- operative Societies under this section shall not be conferred on any other person.” Sec.68A was inserted by Act 1 of 2000 and was given effect by SRO No.526 of 2007 from 05.06.2007. As per the said provision, the Government shall appoint an Officer who is not below the rank of the Deputy Inspector General of Police as Vigilance Officer to enquire into and investigate cases of misappropriation and corruption and any other major irregularities in the Society as may be referred to him by the Registrar. Such Vigilance Officer shall conduct the enquiry and investigation in such manner as may be prescribed and he shall be under the administrative control of the Registrar of Co-operative Societies. Learned Public Prosecutor opposing the argument of learned counsel for petitioners contends that Sec.68A of the Act operates in an entirely different field and has nothing to do with the investigation which the local Police or V&ACB is to conduct in accordance with the provisions of the Code. It is contended that there is no provision in the Act which either expressly or impliedly repealed the WP(C) Nos.8472 & 9174/2011 7 provisions of the Code relating to investigation of offences committed by office bearers of the Society who are public servants. It is also pointed out that the Act does not contemplate any trial or conviction for any offence as may be detected in the enquiry or investigation conducted by the Vigilance Officer under Sec.68A of the Act. Learned Public Prosecutor contended that Sec.100 of the Act it is only the jurisdiction of civil and revenue courts that is expressly barred in respect of any matter for which provision is made in the Act. 7. Chapter XII of the Code deals with information to the Police and their powers to investigate into cognizable offences. When information is given to a Police Officer regarding commission of a cognizable offence he is to record such information into writing and get it signed by the person giving such information. He is to record substance of the information in the book to be kept by him in such form as the State Government may prescribe in that behalf. Sec.157 of the Code deals with the procedure for investigation and states that if from information received or otherwise an Officer in charge of a Police Station has reason to suspect commission of an offence which he is empowered under Sec.156 of the Code to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a Police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in that behalf, to proceed to the spot, investigate the facts and circumstances of the case and if necessary take necessary measures WP(C) Nos.8472 & 9174/2011 8 for discovery and arrest of the offender. Sec.156 of the Code deals with the power of an Officer in charge of a Police Station to investigate a cognizable case. Under Sub-sec.(3), any Magistrate empowered under Sec.190 also may order such an investigation. Chapter XIV of the Code deals with the conditions requisite for initiation of proceedings. Sec.190 of the Code coming in the said Chapter states that subject to the provisions of the said Chapter, any Magistrate of the first class and any Magistrate of the second class specially empowered in that behalf under Sub-sec.(2) may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Chapter XV of the Code deals with power of the Magistrate to take cognizance of an offence on a complaint. Thus, the procedure for investigation of cognizable offence by the Police, initiation of proceeding before the Magistrate and the manner of taking cognizance by the Magistrate are provided in Chapters XII, XIV and XV of the Code. 8. Contention raised by learned counsel for petitioners referring to Sec.68A of the Act is that in view of the said provision a parallel enquiry or investigation under the Code is barred. Sec.5 of the Code says that nothing contained in the said Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by WP(C) Nos.8472 & 9174/2011 9 any other law for the time being in force. In Subashchandra Bose v. The Court of Judicial First Class Magistrate, Ananthapur and others (1973 Madras Law Journal (Cri.) 728), Alladi Kuppuswami, J. with reference to the provisions of the District Police Act (V of 1861) held that though the said Act contained certain machinery for punishing the Police Officers in regard to certain matters, there is no provision in the said Act which ousted jurisdiction of the court under the Code and that Police Officers are also amenable to the jurisdiction of the courts as any other citizen under the Code. Though, in relation to a proceeding under Sec.133 of the Code in the light of the Water (Prevention and Control of Pollution) Act, 1974 this Court had the occasion to deal with implied repeal of provisions of the Code in view of the provisions of the said Act. There, the question considered was whether in view of the provisions of the said Act, powers of the Sub Divisional Magistrate to act under Sec.133 of the Code stood impliedly repealed. This Court held that repeal like an enactment is essentially a legislative exercise properly left with the Legislature in the separation of powers envisioned by the Constitution of India, it is for the Legislature to enact a law, or repeal a law and that implied repeal is not presumed easily because the Legislature which enacts a law is presumed to be aware of the existence of earlier laws on the subject. Plurality of legislation does not suggest repeal by implication. Often, conflict between two statues is only seeming; their objects being different and the language of each being restricted to its object. The Division Bench also made reference to the words of Maxwell that such legislation could “run on parallel lines without meeting”. The WP(C) Nos.8472 & 9174/2011 10 Division Bench observed that even when there is a seeming conflict, if possible effect should be given to both. Division Bench referred to various authorities on interpretation of statutes and implied repeal and came to the conclusion that the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Chapter X of the Code operated in different fields and hence no question of implied repeal of Chapter X of the Code could be presumed. 9. Applying the above principles as to interpretation of statute I am to decide whether in view of Sec.68A of the Act, enquiry/investigation by the Police/V&ACB under provisions of the Code is barred even impliedly in respect of offences allegedly committed by public servants attached to a Society registered under the Act. Sec.68A of the Act provided for appointment of an Officer not below the rank of the Deputy Inspector General of Police as Vigilance Officer to conduct enquiry/investigation into cases of misappropriation, corruption and other major irregularities in the Society as may be referred to him by the Registrar and submit report to the Registrar. The Vigilance Officer appointed under Sec.68A of the Act cannot also enquire/investigate the offence if any committed by a co-accused who is not a public servant connected with the Society. Nor could the Registrar take any action against such co-accused. The Act does not provide any machinery for trial of public servants connected with the Society who in the enquiry/investigation conducted under Sec.68A of the Act is found to have indulged in misappropriation, corruption or other major irregularities in the Society. Sec.68A of the Act does not confer any WP(C) Nos.8472 & 9174/2011 11 independent right on the Vigilance Officer to enquire/investigate. He is to enquire/investigate only if the mater is referred to him by the Registrar. The investigation under Chapter XII of the code is to culminate in a final report to be submitted before the appropriate court as provided under Sec.173(2) of the said Code. If such report discloses commission of an offence, the appropriate court is to proceed against the offender as provided in the Code. The report of enquiry/investigation as per Sec.68A of the Act is not for the purpose of putting the offender on trial. It could be for the purpose of a departmental enquiry or other action as provided by the Act. It is pertinent to note from Sec.100 of the Act that the bar of jurisdiction referred to therein in respect of matters required to be dealt with under the Act is only of civil and revenue courts. Sec.100 of the Act does not apply to the jurisdiction of criminal courts. It is relevant to note that even when Sec.68A was brought into the Act by way of amendment, no provision excluding enquiry/investigation/trial under the Code was made. Learned Public Prosecutor has brought to my notice certain Government Orders relating to investigation of cases involving misappropriation in Co-operative Societies as well. It is pointed out that cases involving misappropriation above Rupees Five lakhs are to be investigated by the V&ACB and that in W.P(C) No.9174 of 2011, the amount involved is much more than Rupees Five lakhs. 10. The Government have as per G.O(P) No.21/2010/Vig. Dated 09.06.2010 modified G.O.(P) No.65/92/Vig., dated 12.05.1992 and G.O.(P) No.18/97/Vig. and as per the modification, cases of misappropriation including WP(C) Nos.8472 & 9174/2011 12 funds of Co-operative Societies above Rupees Five lakhs shall be investigated by the V&ACB. That also is an indication that Sec.68A of the Act was not intended to do away with the investigation, enquiry and trial as provided in the Code. These circumstances persuade me to hold that the vigilance enquiry contemplated under Sec.68A of the Act and the investigation that the Police/V&ACB is to initiate in exercise of their power under Chapter XII of the Code and on completion of investigation to put the offender on trial in accordance with the provisions of the Code operate in different fields, with different objectives. Sec.68A of the Act cannot override power of the Police/V&ACB to investigate into offences concerning a Society under Chapter XII of the Code or power of Court to initiate proceeding under Chapter XIV of the Code, much less to say about taking cognizance under Chapter XV of the Code In that view, contention advanced by the learned counsel that in view of Sec.68A of the Act, an enquiry/investigation by V&ACB, submission of a final report and trial of petitioners before the criminal court is barred, cannot be accepted. Point No.II 11. It is argued by learned counsel that Exts.P2 and P3, orders passed by the learned Special Judge under Sec.156(3) of the Code directing a preliminary enquiry before registration of cases are illegal. It is contended that learned Special Judge has no power to direct a preliminary enquiry to be WP(C) Nos.8472 & 9174/2011 13 conducted while ordering investigation under Sec.156(3) of the Code. According to the learned counsel, when an order is passed under Sec.156(3) of the code, the V&ACB is bound to register a case and investigate. The V&ACB could not, in view of the order under Sec.156(3), proceed to conduct a preliminary enquiry and decide whether a case is to be registered or not. Learned counsel submitted that the decision of the Supreme Court in P.Sirajuddin v. State of Madras [(1970) 1 SCC 595) has been misconceived and misinterpreted by the learned Special Judge to order a preliminary enquiry even while acting Sec.156(3) of the Code. Learned counsel contended that P.Sirajuddin's case (supra) related to a complaint which was preferred to the Chief Minister which in turn, was sent to the V&ACB for investigation. It was not a case where the Special Judge exercising power under Sec.156(3) of the Code ordered to register a case and investigate. Learned counsel made heavy reliance on the decision of this Court in Madathil Marakar Haji v. Vakkom B. Purushothaman [2007 (4) KLT 659]. It is contended that it is overlooking the said aspects that the learned Special Judge has passed Exts.P2 and P3, orders and directed the V&ACB to conduct a preliminary enquiry before registering the cases. According to the learned counsel, though P.Sirajuddin's case (supra) was relied on by a Division Bench of this Court in Satheesh v. Enquiry Commissioner & Special Judge [2003 (3) KLT 480], question WP(C) Nos.8472 & 9174/2011 14 whether a preliminary enquiry could be ordered by the Special Judge when a private complaint is forwarded to the V&ACB invoking power under Sec.156(3) of the Code was not raised before, or decided by the Division Bench and hence that decision is no authority to hold that even a when private complaint is forwarded to the V&ACB under Sec.156(3) of the Code, it is within the power of the Special Judge to direct a preliminary enquiry before registration of the case. Learned counsel argued that every decision has to be understood on the facts of the case it decides and has placed reliance on Padma Sundara Rao (dead) and others v. State of T.N. and others [(2002) 3 SCC 533]. It is also pointed by the learned counsel with reference to the decision in Lalita Kumari v. Government of Uttar Pradesh and others [(2008) 14 SCC 337] that the question whether upon receipt of information regarding commission of a cognizable offence it is imperative for the Police Officer to register a case or a discretion lies with him to make some enquiry before registering the case has been referred to a larger Bench of the Supreme Court in view of conflicting decisions on the point. Learned Public Prosecutor in response contended that the Code does not prohibit the learned Special Judge from directing a preliminary enquiry to be conducted before registering a case while issuing an order under Sec.156(3) of the Code and that such a course is adopted