Kerala High Court
Sreekumar S. Menon vs State Of Kerala on 19 February, 2004
Equivalent citations: 2004(2)KLT53
ORDER N. Krishnan Nair, J.
1. This revision is directed against the Order dated 31.3.2003 of the Enquiry Commissioner and Special Judge, Thrissur in CMP No. 231/2003, rejecting a complaint filed by the petitioner against the second respondent.
2. The facts necessary for the disposal of this petition may be stated as follows: The second respondent herein was working as a Deputy Superintendent of Police in the Vigilance and Anti-Corruption Department. The petitioner who is the Secretary of the Kerala People's Forum filed a complaint against the second respondent alleging that he had amassed huge wealth disproportionate to his known sources of income. It is alleged that he has constructed a house which will cost Rs. 60 lakhs in violation of the approved plan. It is also alleged that he owns 8 tanker lorries and 4 jeeps which are plying for hire. The further allegation is that two of his children are studying in posh schools where a sum of Rs. 3,000/- per month for a student will have to be spent. On these allegations, the petitioner wanted to initiate proceedings against the second respondent under the Prevention of Corruption Act. The learned Special Judge by the impugned order rejected the complaint on the ground that the materials produced do not show prima facie the truthfulness of the allegations. The order is seriously challenged in this revision.
3. The learned counsel for the petitioner strongly contended that the learned Special Judge seriously erred in finding that the materials produced do not show prima facie truthfulness of the allegations. According to him, the learned Judge ought to have ordered an enquiry into the allegations levelled against the second respondent by the Vigilance Department. He further contended that there are sufficient materials on record to make out a prima facie case against the second respondent. On the other hand, the learned counsel for the second respondent supported the order and urged that there is no ground for interference.
4. At the outset, I must say that the order of the Court below rejecting the complaint is clearly unsustainable. It is seen that the learned Special Judge rejected the complaint by a cryptic order holding the view that the materials produced do not show prima facie truthfulness of the allegations. On going through the complaint, it cannot be said that the allegations do not disclose the commission of any offence under the Prevention of Corruption Act. It is specifically alleged in the complaint, the second respondent has amassed wealth disproportionate to his known sources of income. I cannot agree with the court below that the photographs, the plan etc. produced along with the complaint cannot bring home prima facie truthfulness of the allegations levelled against the second respondent. At this stage, the Court is not expected to see whether the allegations are likely to be proved by the materials produced before the Court. According to me, the learned Special Judge should have atleast ordered a preliminary enquiry into the allegations by the Vigilance Department. It is settled position that the court of Special Judge being the Court of original criminal jurisdiction, the Special Judge can forward a private complaint to the police for investigation under Section 156(3) of the Cr.P.C. before taking cognisance of the offences. No doubt, since the second respondent is a public servant, there must be some suitable preliminary enquiry into the allegations by a responsible officer in view of the decision of the Supreme Court in P. Sirajuddin v. State of Madras, AIR 1971 SC 520. I am of the view that the learned Special Judge ought to have ordered atleast a preliminary enquiry into the allegations levelled against the second respondent. The learned counsel for the second respondent relying on a Division Bench decision of this Court in Satheesh v. Enquiry Commissioner & Special Judge, 2003 (3) KLT 480, contended that without proper application of mind, the special court cannot issue a direction to the Vigilance Department to conduct an enquiry into the allegations. No doubt, in the decision relied on by the learned counsel, it has been held by this Court that "the Special Court cannot simply act as a Post Office and issue without proper application of mind, a direction to the Vigilance Police to conduct enquiry or investigations into the allegations". But a Special Court cannot reject the complaint at the threshold itself without proper application of mind.
5. The learned counsel for the second respondent further contended that the lower Court was fully justified in rejecting the complaint since the petitioner has no locus standi to file the complaint. According to the learned counsel, the petitioner is not a person aggrieved by the alleged offences. I cannot agree. Any person whether aggrieved or not by a particular offence can file a complaint. In this connection, it is relevant to note the following observations of the Supreme Court in A.R. Anthulay v. R.S. Naik, AIR 1984 SC 718. "It is a well recognised principal of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Criminal P.C. envisages two parallel and independent agencies for taking criminal offences to court. Even if the most serious offence of murder, it was not disputed that a private complaint can, not only be filed, but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complaint by necessary implication, the general principal gets excluded by such statutory provision". In view of the decision, of the Supreme Court referred to above, the contention of the learned counsel for the second respondent in this regard cannot be accepted.
6. For the reasons stated above, I am unable to sustain the impugned order pf the lower court rejecting the complaint filed by the, petitioner. I set aside the impugned order and direct the Special Judge to order a preliminary enquiry into the allegations levelled against the second respondent by a responsible officer of the Vigilance Department.