Document Fragment View

Matching Fragments

ARGUMENTS OF THE REVISION PETITIONER/ACCUSED

4. Adv. Sri. M. Ajay, the learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:-

Annexure -I private complaint filed by the 2nd respondent herein was initially disposed of by the Special Judge as per Annexure III order dated 30-08-2006 directing the Director of Vigilance to conduct a preliminary enquiry into the allegations levelled against the four accused persons. It was further directed that if the materials collected during such enquiry warrant investigation then a case shall be registered and the F.I.R. be forwarded to the Special Court. Thereafter the Director of Vigilance caused a detailed enquiry to be conducted and finally submitted Annexure IV report dated 9-11-2006 as per which it was found that the allegations in the private complaint were not true. Accordingly, on 6-12-2006 the learned Special Judge dismissed the complaint. In Crl.R.P. 734 of 2007 filed by the complainant, this Court had set aside the order of dismissal and had remanded the matter for fresh consideration. After the remit by this Court , the learned Special Judge had heard both sides regarding the procedure to be followed by the Special Court and finally decided to himself conduct an enquiry under Section 202 Cr.P.C. The case was then posted for taking the sworn statement of the complainant. After recording the sworn statement of the complainant the Special Judge examined two other witnesses as C.Ws 1 and 2 after issuing summons to them. Subsequently, two more witnesses were examined by the Special Judge as CWs 5 and 6. Documents were also got summoned at the instance of the complainant. Finally, as per the impugned order dated 25-3-2008, the learned Special Judge after noting that the complainant does not propose to examine any more witnesses came to the strange conclusion that collection of materials other than those produced in this case is necessary to ascertain whether the Special Judge should proceed further or not and has accordingly ordered an investigation under Section 202 Cr.P.C. by the Superintendent of Vigilance and Anti Corruption Bureau (Special Investigation Unit), Thiruvananthapuram. Apart from the fact that in the preliminary enquiry initially conducted by the Vigilance Department it was revealed that A2 the eldest son of A1 is a businessman and A3 the 2nd son of A1 and who is an M.B.A. graduate is also a businessman and A4 who is the son-in-law of A1 is a postgraduate doctor and his wife who is the daughter of A1 is also a postgraduate doctor and that all of them were having independent sources of income and are income tax payers from 1994 onwards, there was absolutely no material to show that A1 while holding office as the Finance Minister had amassed wealth disproportionate to the known sources of his income or that the source of acquisitions by A2 to A4 was traceable to A1. This Court had not set aside Annexure III order passed by the Special Court directing preliminary enquiry. This Court also did not direct the Special Court to exclude Annexure IV report from consideration. When the complainant himself had failed to adduce evidence providing sufficient ground for proceeding further even after getting the assistance of the Special Court for producing documents and examining witnesses, the Special Court was committing a grave illegality in directing an investigation by the vigilance police. Where the Court after postponing the issue of process proceeds to itself conduct an inquiry under Sec. 202 Cr.P.C. the Court cannot thereafter direct any investigation by the police under Section 202 Cr.P.C. . The wording in Sub Section (1) of Section 202 Cr.P.C. is to the effect that the Court may either inquire into the case itself or direct an investigation. When the statute employs the words "either.................or" the court has only any one of the two alternatives to follow. In other words, if the Magistrate conducts an inquiry by himself, he cannot thereafter direct an investigation. Conversely, if the Magistrate directs an investigation, he cannot thereafter inquire into the matter himself. [Vide Sankar Chandra Ghose v. Roopraj S. Bhansally - 1981 Crl. L.J. 1002 (Calcutta)]. In Bhagat Ram v. Surinder Kumar and Others - (2004) 11 SCC 622 what has been held is only that after examination of the complainant and his witnesses under Sec. 200 Cr.P.C. it is open to the Magistrate to order an investigation under Sec. 202 Cr.P.C. This does not mean that after the Magistrate himself conducts an enquiry under Sec. 202 (1) Cr.P.C., it is open to him to order an investigation under the said provision. This decision, on the contrary, has held that after postponing the issue of process against the accused, the Magistrate can adopt only any one of the two courses mentioned in Sec. 202 (1) Cr.P.C. In Mohammed Kutty v.

11. As per Aannexure III order dated 30-8-2006 the Special Judge forwarded Annexure I complaint to the Director, Vigilance and Anti Corruption Bureau (VACB) with a direction to conduct a preliminary enquiry into the allegations levelled against the four accused persons and that if materials were collected during such enquiry warranting further investigation, then a case shall be registered and the F.I.R. shall be forwarded to the Special Court. It was further ordered that if sufficient materials were not obtained during such enquiry warranting investigation, a report shall be submitted before the Special Court in that behalf. The Special court fixed a time limit of 45 days for conducting the preliminary enquiry. The said time limit was subsequently extended till 15-11-2006 at the instance of the Vigilance Department. On 14-11-2006 Annexure IV report dated 9-11-2006 was filed before the Special Court by the Superintendent of Police (VACB, Special Cell), Thiruvananthapuram, duly vetted by the Director of Vigilance as revealed by Annexure V covering letter. Annexure IV report shows that a detailed enquiry was conducted by the Vigilance Department and during the course of enquiry the signed statements of 39 witnesses were recorded to conclude that all the acquisitions made by A2 to A4 during the period from 15-11- 2004 to 28-7-2005 were with their own funds and not with any funds made available by Vakkom B. Purushothaman and that the allegation of criminal conspiracy, amassing of wealth by corrupt or illegal means by any of the accused persons etc. were not at all established by the evidence.

12. Even if political antagonism against the first accused Vakkom B. Purushothaman could be attributed to the filing of Annexure-I private complaint, the fact remains that the Vigilance Enquiry was concluded after the present LDF regime came into power and Annexure IV report was filed nearly six months after the new Ministry came into power. The organisational set up in the Vigilance Department is such that no report is filed before the Special Court without circulating the files through the corridors of power. Thus, even the political rivals of the first accused could not forge a case for registering a crime, much less, for commencing investigation.

13. On receipt of Annexure IV report the learned Special Judge after a detailed examination of the Vigilance enquiry report came to the conclusion that there was no diversion of the funds belonging to the first accused or his wife for purchasing the properties covered by the impugned documents executed in the names of accused Nos. 2 to 4 who were found to be having sufficient resources for purchasing those properties and that the question of under-valuation, if any, of the documents of acquisition in the names of accused Nos. 2 to 4 could not constitute any offence under the provisions of Prevention of Corruption Act. Thereafter, on an anxious consideration of all the aspects of the case the Special Judge concluded that no case was made out against the accused persons and accordingly, as per Annexure VI order dated 6-12-2006 dismissed the complaint. Aggrieved by the dismissal of the complaint, the 2nd respondent herein preferred Crl.R.P. 714 of 2007 before this Court. As per judgment dated 11-4-2007 reported in 2007 (4) KLT 59 - Madathil Marakkar Haji v. Vakkom B. Purushothaman a learned Single Judge of this Court set aside Annexure VI order holding that Annexure III order initially passed by the Special Judge directing preliminary enquiry was not proper and was liable to be set aside and accordingly remanded the matter to the Special Court for fresh consideration of the complaint. Even while lawfully discharging his duties, a public servant may not be able to take decisions or steps favourable to all persons who may have approached him seeking his intervention . A public servant is bound to displease one party or the other. If disgruntled elements who were not able to curry favours from the public servant were to prosecute him on false and vexatious allegations, no public servant can perform his duties with peace of mind. That explains the desirability, if not necessity, for a preliminary enquiry so that frivolous complaints could be eliminated and the public servant protected from unnecessary harassment. If after such preliminary enquiry it is established that the complaint was ill-motivated, then the police are absolved from registering a crime and commencing a futile investigation. Eventhough two Division Bench decisions namely Satheesh v. Enquiry Commissioner and Special Judge - 2003 (3) KLT 480 and Mohandas v. Enquiry Commissioner and Special Judge - 2004 (1) KLT 873 were cited before the learned Single Judge, those decisions were relied on for some other purpose in paragraph 27 of Annexure VIII judgment . In both the cases of Satheesh and Mohandas, preliminary enquiry by the Vigilance Department ordered by the Enquiry Commissioner and Special Judge , Thrissur was upheld by the Division Bench in the light of Sirajudheen v.State of Madras - AIR 1971 SC 520 and the Division Bench only expunged certain observations and findings on the merits in the impugned orders passed by the Enquiry Commissioner and Special Judge. A learned Single Judge of this Court also in Sreekumar S. Menon v. State of Kerala - 2004 (2) KLT 53, after setting aside the order passed by the Enquiry Commissioner and Special Judge, Thrissur rejecting the complaint, ahd directed the Special Judge to order a preliminary enquiry by the Vigilance Department into the allegations against the accused in that case. Reliance was again placed on Sirajudheen's case. Probably, it was noticing this aspect of the matter that the learned Judge only observed in Annexure VIII order that the order passed by the Special Judge directing preliminary enquiry was liable to be set aside. But Annexure III order was not specifically set aside by this Court. After the remand, as permitted by this Court, the Special Judge heard both sides with regard to the procedure to be followed by the Special Judge in the matter and as per Annexure IX order dated 20-11-2007 the Special Judge decided to conduct an enquiry under Sec. 202 Cr.P.C. after a de novo consideration of the complaint and posted the case for examination of the complaint on 4-1-2008. Subsequently on 22-1- 2008 the sworn statement of the complainant was recorded. No other witness for the complainant was present on that day. The complainant then filed Annexure X witness list on that day for the examination of 11 witnesses. The Special Judge issued summons to CWs 1 and 2 in the said witness schedule. On 11-2-2008 CWs 1 and 2 were examined. Summons was then issued to CWs 5 and 6 on the request of the complainant. On 29-2-2008 CW5 was examined in part. On 18-3-2008 the examination of CW5 was completed and the statement of C.W.6 was recorded. Annexures XI to XV are true copies of the depositions of the complainant and CWs 1,2,5 and 6. The complainant then submitted that he does not propose to take steps to the remaining witnesses, and no more documents need be summoned. The complainant prayed for postponing the issue of summons and taking further steps. The case was then posted to 25- 3-2003 for orders and on that day the learned Special Judge passed the impugned Annexure XVII order directing an investigation by the Superintendent of VACB under Sec. 202 (1) Cr.P.C. It is in the said order which is assailed in this revision.