IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 OP.No. 15034 of 2003(M) ---------------------------------- PETITIONER: ------------------- P.MARYKUTTY, REVENUE DIVISIONAL OFFICER, AYYANTHOLE, THRISSUR, RESIDING AT KOCHUPARAMBIL, GOVERNMENT QUARTERS NO.C9 CIVIL LINE, AYYANTHOLE P.O., THRISSUR-3. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO VIGILANCE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF VIGILANCE AND ANTI-CORRUPTION BUREAU, TRIVANDRUM. 3. THE CHIEF ELECTORAL OFFICER, (UNDER THE ELECTION COMMISSION OF INDIA), TRIVANDRUM. R1 & R2 BY PUBLIC PROSECUTOR MR. B.VINOD, R3 BY MR.MURALI PURUSHOTHAMAN, S.C. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/11/2009, ALONG WITH W.P.(C). NOS.18262/2003 AND 7100/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.15034/2003-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE UNDATED ANONYMOUS PETITION SUBMITTED BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE. EXT.P.2: COPY OF THE UNDATED ANONYMOUS PETITION SUBMITTED BEFORE THE DEPUTY SUPERINTENDENT OF POLICE (VIGILANCE). EXT.P.3: COPY OF THE ORDER DTD. 31/03/2003 IN CMP.NO.402/2003 ON THE FILE OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR. EXT.P.4: COPY OF THE PETITION DTD. 29/04/2003 SUBMITTED BY THE PETITIONER BEFORE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------------------------------- O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 ----------------------------------------------------------------- Dated 9th November 2009 JUDGMENT Special Judge, Vigilance, Thrissur received an unsigned and undated petition from unidentifiable “employees standing against corruption in civil service” alleging that they had sent a letter addressed to Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau wherein several instances of corruption were pointed out involving the officers connected with General election, claiming expenses for engaging in the election work, and contending that the Deputy Superintendent of police is not taking appropriate action and therefore, a direction to conduct immediate enquiry is to be given to the Deputy Superintendent of Police. From the records called for from the concerned Vigilance court, it is seen that the learned Special Judge on receipt of the complaint called for a report from District Collector, Thrissur O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 2 on the allegations. A report is seen received by the Vigilance Judge from the District Collector dated 29/3/2003 stating that on examination several bills produced appeared to be bogus. On receipt of the report from the District Collector, Vigilance Judge passed an order dated 31/3/2003 directing forwarding of the materials before the Special Judge to the Director of Vigilance and Anti Corruption Bureau, Thiruvananthapuram under Section 156(3) of Code of Criminal Procedure for registration of a crime in each instances against public servants disclosed by the records, making it clear that the criminal matters involving the public servants functioning under the State Election Commission who were under deputation or directly, could be investigated by the Vigilance. The Vigilance and Anti Corruption Bureau was permitted to seize and peruse the records for the purpose of investigation. Based on this order, crime No.10/2003 of Vigilance and Anti Corruption Bureau, Thrissur was registered. These petitions are filed by the respective accused to quash the order passed by the Special Judge directing investigation. 2. Petitioners would contend that the very O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 3 procedure adopted by the Special Judge is illegal and erroneous. It is pointed out that the petition based on which Special Judge has taken action, is an anonymous petition and names of the office bearers of the members of the association is not disclosed in the complaint and such a complaint should not have been accepted by the learned Special Judge and as it is not a complaint as provided under Code of Criminal Procedure, learned Special Judge should not have acted on the said petition. It was also contended that by the impugned order Special Judge has found prima facie that allegations are true and when a complaint is sent for investigation under Section 156(3), learned Special Judge cannot give his opinion on the merits or otherwise of the complaint. It was pointed out that once cognizance is taken on the complaint under Section 200 of the Code, there cannot be a direction for investigation under Section 156(3) of the Code, though investigation could be ordered as provided under Sub Section 1 of Section 202 of Code of Criminal Procedure. It is pointed out that the impugned order is for directing investigation under Section 156(3) and not an investigation under Section 202(1) of Code of O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 4 Criminal Procedure. It is also pointed out that the Special Judge cannot give his opinion on the prima facie case when investigation is ordered under Section 156(3) and if cognizance is to be taken as provided under Section 200, it is mandatory that complainant and his witness present should be examined and then only Special Judge can proceed under Section 202 of Code of Criminal Procedure. It is therefore, argued that the very procedure adopted is illegal and has to be quashed. 3. Learned Public Prosecutor submitted that even if for the illegal procedure adopted by the Special Judge, the order is quashed liberty is to be granted to the State to proceed against the corrupt officials. 4. There is force in the submission made on behalf of the petitioners. If cognizance on a complaint is taken by the learned Special Judge, he has to conduct enquiry as provided under Section 200 or 202. If cognizance is taken thereafter learned Magistrate or Special Judge cannot direct the investigation under Section 156(3) of Code of Criminal Procedure by reverting to the pre-cognizance stage. True, as provided under Sub Section 1 of Section 202 the Special Judge can direct an the investigation to be made by the Police O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 5 officer but that investigation is not an investigation under Section 156(3) which can end only on filing a final report under Section 173(2) but an investigation limited as provided under Sub Section 1 of Section 202. If Special Judge finds that the complaint is to be sent for investigation under Section 156(3), which is a pre- cognizance stage he cannot proceed with the complaint under Section 200 or Section 202 and instead has to send it for investigation under Section 156(3) before considering merit of the complaint. As provided under Section 200 Special Judge on receipt of the complaint without examining the complainant and the witness if any present provided under Section 200, cannot call for a report from the District Collector. Special Judge can call for the report in that petition, only if he is taking cognizance on the complaint, though he can decide later after conducting inquiry under Section 202 whether cognizance of the offence is to be taken and summons is to be issued under Section 204 or complaint is to be dismissed under Section 203. But once he has acted upon the complaint and finds a prima facie case, it is taking cognizance of the complaint, in which case he necessarily has to follow the procedure provided under O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 6 Section 200 or 202 of the Code. The order of the Special Judge shows that after getting the report from the District Collector, Special Judge heard the legal advisor of the vigilance Anti Corruption Bureau and thereafter passed a detailed order regarding a prima facie case on the allegations raised and also lack of bonafides on the part of the persons against whom allegations are raised and then directed an investigation under Section 156(3) of the Code. Special Judge could not have legally proceeded thereafter reverting to the pre-cognizance stage by directing investigation under Section 156(3). The legal position is settled by the Apex court in D.Laxminarayan v. V.Narayana (AIR 1976 SC 1672) as follows. “16. The position under the Code of 1898 with regard to the diction to send a complaint disclosing a cognizable offence-- whether or not triable exclusively by the Court of Session-- to the Police for investigation under Section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under Section O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 7 156(3) and the one directed under Section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st proviso to Sec.202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. 17. Section 156(3) occurs in Chapter XII, under the caption: “Information to the Police and their powers to investigate”; while Section 202 is in Chapter XV which bears the heading “Of complaints to Magistrate”. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Sec.202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizable stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 8 the power under Sec.156(3) can be invoked by the Magistrate before the takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 9 Section 202 to direct, within the limits circumscribed by that section, an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. 5. As rightly pointed out by the learned counsel appearing for the petitioners, complaint received by the learned Special Judge and acted upon is not signed by any person. Name of the person who sent the petition is also not disclosed. Though it is purportedly sent by “the employees standing against corruption in civil service” its office bearers are not disclosed and it is not a defined body or group. This petition can only be treated as an anonymous petition. 6. Complaint is defined under clause (d) of Section 2 of Code of Criminal Procedure means any allegations made orally or in writing, to a O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 10 Magistrate with a view to his taking action under the Code that some person, whether known or unknown, has committed an offence, but does not include a police report. Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses, if any present and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Therefore, to take cognizance of a complaint, there should be a complainant whose identity could be ascertained and who can be examined by the Magistrate, as provided under Section 200 of Code of Criminal Procedure. Therefore, an anonymous petition cannot be treated as a complaint which can be taken cognizance by the Magistrate under Section 200 of the Code. 7. As stated earlier records of the Special Judge shows that Magistrate had acted upon the anonymous petition and called for a report and thereafter passed the order, without making any attempt to comply with the procedure provided under Section 200 of the Code. Learned Special Judge acted illegally and entered a O.P.NO.15034/2003, W.P.C.NOs.18262/2003 and W.P.C.No.7100/2007 11 finding of prima facie case, without following the procedure provided under Section 200 or 202 of the Code and then illegally sent the petition and the records to the police for investigation under Section 156(3) of the Code. Even though the learned Special Judge passed the impugned order, after getting a report, the order passed for investigation under Section 156(3) is not on the report submitted by the District Collector but on the anonymous petition. In such circumstances, the order passed by the Special Judge is clearly illegal and can only be quashed. 8. All the petitions are allowed and the order passed by Special Judge, Vigilance, Thrissur dated 31/3/2003, directing registration of a case and its investigation and registration of the case in compliance with the order are quashed. It is also made clear that quashing of the order will not affect the right of the State to proceed against the corrupt officials in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.