Kerala High Court
K. Muralidharan vs State Of Kerala And Ors. on 12 October, 2006
Equivalent citations: 2007CRILJ417, 2007 CRI. L. J. 417, 2007 (2) AJHAR (NOC) 630 (KER), (2006) ILR(KER) 4 KER 512, (2006) 3 KER LJ 605
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
ORDER K. Padmanabhan Nair, J.
1. Petitioner is the de facto complainant in V.C. No. 21 of 2000 of the Vigilance and Anti-Corruption Bureau, Palakkad. The following are the prayers in the amended Writ. Petition : (1) to quash the direction for further investigation ordered in V.C. No. 21 of 2000, (2) to accept the earlier factual report filed by the Deputy Superintendent of Police, VACB, Palakkad, (3) to reject the factual report submitted by the 5th respondent, (4) to direct the 6th respondent, Central Bureau of Investigation, New Delhi to take over the investigation of V.C. No. 21 of 2000 and (5) to quash Exhibit P3 order passed by the Enquiry Commissioner and Special Judge, Kozhikode in V.C. No. 21 of 2000 accepting the final report submitted by the 5th respondent.
2. Petitioner is the proprietor of Bhasker Soap Works, Karipodu, Palakkad which is engaged in the manufacture of soaps. Petitioner filed a complaint against the 7th respondent alleging that he has demanded an amount of Rs. 3,000/-, as bribe and compelled the petitioner to pay the same on the ground that he was instrumental in reducing the water cess amount for the factory from Rs. 2,500/- to Rs. 150/-. Petitioner was not willing to pay the amount demanded. He informed the matter to the Vigilance Department. The 7th respondent was caught red handed and he was arrested. A case, as crime V.C. No. 21 of 2000, was registered. Investigation of the case was conducted by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Palakkad who prepared a draft charge-sheet and sent the case file with the factual report to the Superintendent of Police, Kozhikode to be forwarded to the Head Quarters at Trivandrum. It was alleged that the 7th respondent exerted political pressure through one Gangadharan, Secretary, District Con-gress Committee, Kasargod over the top officials through the Minister of Home and accordingly, the 5th respondent, who was about to retire, was selected for the purpose of filing final report referring the case as a mistake of fact. It was alleged that the 5th respondent had no prior experience in handling trap cases. It was alleged that the order of further investigation issued by the Additional Director General of Police, Vigilance, is mala fide, illegal and actuated with malice and is liable to be quashed. It was also alleged that the 5th respondent forwarded a factual report after investigation stating that further action in the matter to be dropped. It was alleged that the entire, investigation conducted by the 5th respondent is mala fide which was done only with the intention of exonerating the 7th respondent. It was also averred that it was understood that the Court below had accepted the report and closed the proceedings. It was contended that no notice before accepting the final report was issued to the petitioner, who was the complainant in the case, either by the investigating officer or by the Enquiry Commissioner and Special Judge. It was averred that the acceptance of final report without service of notice on the petitioner is illegal and liable to be set aside. No useful purpose will be served by conducting the further investigation by the State Police and for a fair and proper investigation, the case must be entrusted with the Central Bureau of Investigation, New Delhi. Hence the Writ Petition.
3. The 4th respondent has filed a counter-affidavit contending that the writ petition is misconceived and unsustainable. It was contended that the prayer to quash the further investigation and also the prayer to restrain the 5th respondent from proceeding with further investigation are not tenable. It was admitted that based on the complaint filed by the petitioner, a trap was arranged and Vigilance Case No. 21 of 2000 under Section 7 of the P.C. Act, 1988 was registered against the 7th respondent. The bribe amount was recovered from the accused after observing the formalities and phenolphthalein test was conducted. It was also admitted that after the investigation of the case was over, factual report was forwarded to the Director, VACB, Trivandrum by the Dy. S.P., VACB, Palakkad. Subsequently, the case was transferred by the Director, VACB, Trivandrum, to the Superintendent of Police, Special Cell, VACB, Kozhikode for further investigation. Further investigation was conducted and factual report was submitted by the Superintendent of Police to the Director. On the basis of the factual report, a request was made to the Principal Secretary to Government to drop further action. The Government had decided to drop the proceedings and directed the Dy. S.P., VACB, Palakkad to file a final report referring the case as a mistake of fact. A final report referring the case as a mistake of fact was filed before the Enquiry Commissioner and Special Judge, Kozhikode. The decision to drop further proceedings was taken after considering all material of facts and especially taking into consideration of the fact that the acceptance of bribe could not be proved beyond reasonable doubt. Hence the 4th respondent prayed for a dismissal of the writ petition.
4. The 7th respondent has filed a counter-affidavit contending that the writ petition has become infructuous as the final report was filed on 27-11-2003 before the Enquiry Commissioner and Special Judge, Kozhikode and the Court had accepted the report and closed the case. It is contended that the order is a judicial order not amenable to be corrected by a constitutional Court in a proceedings under Article 226 of the Constitution of India. It was contended that most of the prayers made in the writ petition have become infructuous. It was further contended that the averments in the writ petition are false. It was also contended that the power under Section 173(8) of the Cr.P.C. can be exercised only by the trial Court and not by the supervisory Court. It was also contended that the then Director General of Prosecution, Kerala, had also opined that there is no evidence to proceed against the accused and the same was accepted and further proceedings was dropped. It was contended that Exhibit P3 is a revisable order and the period of limitation prescribed for filing a revision petition is over and if that order is interfered with in this proceedings, the petitioner will be able to circumvent the provision of law which insists that a party aggrieved by the action of the criminal Court shall approach the revisional Court within a time limit. It was contended that the principle that the complainant should be heard before accepting the final report does not apply to the case on hand. Petitioner was only an informer. He has not filed any complaint. Hence the 7th respondent prayed for a dismissal of the writ petition.
5. The main prayers in the writ petition are to quash the direction for further investigation and to reject the factual report submitted by the Superintendent of Police. Those prayers have become infructuous. The prayer for further investigation by CBI also cannot be considered in this proceedings because the investigation completed and final report filed. So the only question survives for consideration at this stage is whether Exhibit P3 order passed by the Enquiry Commissioner and Special Judge, Kozhikode accepting the final report is liable to be interfered with in this proceedings.
6. Learned Counsel appearing for the respondents have raised a preliminary objection that this Court cannot issue any direction to the 6th respondent, CBI, to take over investigation in exercise of the powers conferred on it under Article 226 of the Constitution of India. It was argued that the question whether High Court can issue any direction under Article 226 of the Constitution of India is pending consideration before the Larger Bench of the Supreme Court. He relied on a decision reported in C.B.I v. State of Rajasthan 2001 (1) KLT 563 : 2001 Cri LJ 968 (SC) in which a two Judge Bench of the Supreme Court has made an observation to the effect that powers of the High Court under Article 226 of the Constitution of India and the Supreme Court under Articles 32 or 142(1) to issue a direction to the CBI to investigate a case was referred to a larger Bench and that case was pending. In paragraph 13 of the judgment it was noted that "a two Judge Bench of this Court has by an order dated 10-3-1989, referred the question whether the High Court can order the CBI to investigate a cognizable offence committed within the state without the consent of that State Government or without any notification or order having been issued In that behalf under Section 6 of the Delhi Act." It is submitted that the hearing of the case may be adjourned sine de till the Larger Bench of the Supreme Court dispose of the case. Shri S. Sreekumar, learned Counsel appearing for the CBI submitted that those cases were disposed of as early as on 18-7-1996, but that fact was not brought to the notice of the Supreme Court. In view of the factual dispute, a copy of the judgment in Civil Appeal Nos. 807-808 (NCM) of 1975 which was disposed of along with C.A. No. 2056 of 1973, SLP (Cri) No. 318 of 1975, W.P. (Cri) Nos. 531-36 of 1988, (C) No. 9984 of 1989 and SLP (Cri) No. 4178/95 was obtained from the Supreme Court. The relevant portion of the judgment reads as follows:
Mr. Dushyant V. Dave, learned Senior Advocate appearing for the appellants in C.A. Nos. 807-808/1975 very fairly states that the question of law Involved in these appeals is covered against him by the Judgments of this Court in Management of Advanced Insurance Co. Ltd. v. Gurudasmal and in the case of Kazi Lhendupi v. Central Bureau of Investigation 1994 Supp. (2) SCC 116 : 1994 AIR SCW 2190. He further states that similar question is involved in other connected matters. We dismiss these appeals and also connected matters listed along with.
7. I have gone through the decisions re ported in Management of Advanced Insurance Co. Ltd.'s case (supra) and Kazi Lhendup Dorji's case (supra). Power of the High Court under Article 226 of the Constitution of India to direct the CBI to conduct investigation was not considered and decided in those two cases. In State of West Bengal v. Sampat Lal , a three Judge Bench of the Supreme Court has held that for issuing a direction to the CBI to take over investigation of a case in exercise of the powers under Article 226 of the Constitution of India, no consent under Section 5 of the Act is necessary. So the preliminary objection raised by the counsel for the CBI that this Court has no jurisdiction to issue a direction to the CBI in a proceeding under Article 226 of the Constitution of India is with out any merit.
8. It is admitted by both sides that in pursuance of the order for further investigation ordered by the Director, VACB, the Superintendent of Police conducted further investigation and submitted the final report. The Enquiry Commissioner and Special Judge accepted the final report also. The grievance of the petitioner is that the report was accepted without issuing any notice to him. The investigation officer has also not issued any notice to him. It is argued that in view of the mandatory provisions of Section 173(2) of the Cr.P.C., the investigating officer is bound to issue notice to the per son who gives first information. Before accepting the final report, the Court below also ought to have issued notice to the petitioner. Section 173(2)(ii) of the Criminal Procedure Code reads as follows:
173, Report of the police officer on completion of investigation.-
(1) and (2)(i)...
(2)(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.
9. It is argued that a statutory duty is cast upon the investigating officer to issue notice. It is argued that in spite of the fact that the final report was filed by the 5th respondent after receipt of notice in this O.P. no notice as contemplated under Section 173(2)(ii) of the Cr.P.C. was issued to the petitioner. It is also argued that the main prayer in the O.P, before amendment was to quash the order appointing the 5th respondent as the investigating officer. A stay petition was also filed to stay further investigation by the 5th respondent. It is argued that the 5th respondent was fully aware of the reliefs sought for in the O.P. But he filed the final report without issuing notice to the petitioner as contemplated under Section 173(2)(ii) of the Cr.P.C. The provisions in Section 173(2) of the Cr.P.C. are mandatory. The investigating officer has no case that he had complied with the mandatory provision contained in Section 173(2)(ii) of the Cr.P.C. A reading of that section shows that a statutory duty is cast upon the investigating officer to issue notice to the de facto complainant. If the final report is filed without notice to the de facto complainant, such a report is defective. The Court shall not receive the report and return the same for compliance of the statutory requirement. In this case, the Court received the report and accepted the same. The Court below failed to note that the final report filed in this case was defective and that defect was fatal.
10. It is argued that a duty is cast upon the Court also to issue notice to the de facto complainant. Counsel for the petitioner relied on a decision of the three Judge Bench of the Apex Court reported in Bhagwant Singh v. Commr. of Police (1985) SCC (Cri) 267 : 1995 Cri LJ 1521 and also the decision of this Court reported in G. Rajesh v. Officer in Charge, Aluva Police Station 2005 (2) KLD (Cri) 475 in support of his argument. It is argued that Exhibit P3 order passed by the Enquiry Commissioner may be set aside.
11. Learned Counsel appearing for the respondents opposed the prayers. He raised three objections. It was contended that the petitioner is having an effective alternative remedy. It was argued that final report was filed as early as on 30-8-2003 and the petitioner had full knowledge of the filing of the report and if he was really aggrieved, he ought to have filed a criminal revision challenging that order because that was a reusable order. It was also contended that the person who gives the first information statement has no right to get notice. It is argued that such a procedure needs to be followed in case arising from a private complaint alone. It is submitted that when a person files a complaint before a Court it has got two options. The Magistrate may proceed to conduct an enquiry under Section 202 of the Cri. P.C. He may forward the complaint to the police under Section 156(3) of the Cr.P.C. for investigation and report. If the Magistrate forwards the complaint under Section 156(3), Cr.P.C. a duty is cast upon the police officer to conduct investigation and file the final report. According to the counsel for the respondent in such cases alone the police officer shall give notice as contemplated under Section 173(2)(ii) to the complainant and not in cases registered on a First Information Statement. It was also contended that the final report was accepted after getting legal opinion of the Director Genera] of Prosecution. There is no challenge against the final report and no mala fides are alleged against the investigating officer. It was also contended that the incident took place in the year 2000 and if a further investigation is ordered at this stage, the matter which was closed in 2000 will be re opened after a lapse of six years.
12. A reading of Section 173 of the Cr.P.C. shows that no distinction is drawn between the report submitted by a police officer in a case instituted based on a private complaint forwarded by the Magistrate under Section 156(3) of the Cr.P.C. and the report submitted in a case registered on in formation given to the police officer. Section 173(2)(i) provides that as soon as the investigation is completed, the officer in charge of the police station shall forward the report to the Court giving notice to the first informant. It is trite law that the Court shall also give notice to the complainant. In Bhagwant Singh's case (1985 Cri LJ 1521) (supra) the Apex Court stated as follows (para 4):
In a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decides not to take a cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
The principles laid down in Bhagwant Singh's case (supra) was reiterated in. Union Public Service Commission v. S. Papaiah . In G. Rajesh's case (supra) a learned single Judge of this Court has held as follows:
Once a report is furnished to the Court, the Court before accepting the refer report is bound to issue a notice to the complainant or the first informant as the case may be. Even if a notice was issued by the police, it will not be sufficient. Notice has to be issued by the Court.
This Court has also followed the principles laid down in Bhagwant Singh's and Papaiah's cases (supra). No distinction is made between the cases registered on the first information given by a de facto complainant and the case registered based on the private complaint forwarded by the Magistrate under Section 156(3) of the Cr.P.C. Notice shall be issued to the person who set the law into motion.
13. In this particular case in hand, when further investigation was ordered, the petitioner approached this Court by filing this Writ Petition. His specific case was that the 5th respondent, who was in the verge of retirement, was selected with a view to file a report referring the case as a mistake of fact. The Writ Petition was filed on 12-3-2003. Notice was ordered to respondents 1 to 5. The 5th respondent was the investigating officer. The 5th respondent was fully aware of the allegations of mala fides alleged against him. He completed the investigation and filed the final report on 30-8-2003. It is admitted by respondents 1 to 5 that no notice was issued to the petitioner by the 5th respondent. No notice was issued to him by the Court also. Exhibit P3 order shows that the report filed on 30-8-2003 was accepted by the Court below on 27-11-2003. The Court below did not verify whether the final report was filed after complying with the statutory formalities. Since final report was filed during the pendency of this Writ Petition by the 5th respondent against whom very serious allegations were made, the existence of an alternative remedy cannot be taken as a ground to dismiss this writ petition. The fact that the report was filed after getting the legal opinion of the Director General of Prosecution is also not relevant. The argument that if reinvestigation is ordered it will have the effect of reopening a case, the investigation of which was closed in the year 2000 is also without any merit. It is true that the incident took place in the year 2000. But the final report was filed only on 30-8-2003.
14. It is argued that Exhibit P3 report is a revisable one. It is also argued that order was passed in the year 2003 and Criminal Revision ought to have been filed within the period of limitation. According to the 7th respondent, the period for filing Criminal Revision Petition was over and that is the reason why the petitioner amended the O.P.
15. It is true that there is some delay in filing the petition for amendment. But as I have already stated, Exhibit P3 order was passed during the pendency of this O.P. That being the position, I am of the view that it is not just and proper to dismiss the O.P. compelling the petitioner to file a Criminal Revision Petition along with a petition to condone the delay. So that argument is also only to be rejected. Exhibit P3 order passed by the Enquiry Commissioner and Special Judge, Kozhikode in V.C. No. 21 of 2000 ignoring the mandatory provisions of law is illegal. I am of the view that it is a fit case in which this Court shall correct the jurisdictional error committed by the learned special Judge in exercise of the power of superintendence conferred on it under Article 227 of the Constitution of India. Such an order will not amount to issuing a writ against a Court as contended by the 7th respondent.
In the result, the Original Petition is allowed in part, Exhibit P3 order passed by the Enquiry Commissioner and Special Judge, Kozhikode in V.C. No. 21 of 2000 accepting the final report is hereby set aside. The Enquiry Commissioner and Special Judge is directed to reconsider the final report and pass fresh orders with due notice to the petitioner in accordance with law. I make it clear that I am not expressing any opinion regarding the merits of the other contentions raised in the Original Petition and those issues are left open.