Criminal Procedure; N. Shanker Reddy IPS vs. Chief Secretary [Kerala High Court, 24-10-2016]

Code of Criminal Procedure, 1973 Sections 91 (1) & 156 (3) – Production of Document – Case Diary in another case – Held, by exercising the powers conferred on the Magistrate under Section 91(1) Cr.P.C., the court below was perfectly right in calling the Case Diary because of the fact that it could also be a document for perusal for ascertaining the veracity of the allegations in the complaint.

Code of Criminal Procedure, 1973 – Preliminary Inquiry – Mandates in Lalita Kumari’s Case – If the information contained in the complaint does not disclose a cognizable offence; but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not.

Code of Criminal Procedure, 1973 – Allegations are levelled against a Senior Superior Police Officer – In such case, the complainant, who is an ordinary person being a member of the public, cannot be compelled to file a complaint against such a police officer before the police themselves.

Investigation – The Director, VACB as well as the present investigating officer dealing with the preliminary inquiry shall ensure that there is no hostile animus from their part towards the petitioner.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM

B. KEMAL PASHA, J.

CRL.M.C. No. 6775 of 2016

Dated this the 24 th day of October, 2016

ORDER DATED 23-09-2016 IN CRL.MP 991/2016 OF ENQUIRY COMMISSION & SPECIAL JUDGE, THIRUVANANTHAPURAM CRIME NO. 6/2014 OF VACB, THIRUVANANTHAPURAM

PETITIONER(S)

N. SHANKER REDDY IPS, DIRECTOR GENERAL OF POLICE, STATE CRIME RECORDS BUREAU, THIRUVANANTHAPURAM

BY ADVS.SRI.C.UNNIKRISHNAN (KOLLAM) SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) SMT.M.ASHA SRI.P.P.SHAMEER SRI.K.P.SUFIYAN

RESPONDENT(S)

1. THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM.

2. THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU THIRUVANANTHAPURAM-695 001.

3. SRI.JACOB THOMAS, IPS, PRESENTLY DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-695 001.

4. SMT.S.JAYA, ADMINISTRATIVE ASSISTANT, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM-695 001.

5. SRI.PAYICHIRA NAVAS (STATE PRESIDENT), PEOPLES FORUM FOR ANTI CORRUPTION DRIVE, NAVAS MANZIL, PAYICHIRA, PALLIPPURAM P.O., THIRUVANANTHAPURAM – 695 001.

6. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

R1, R2 & R6 BY SRI.C.SREEDHARAN NAIR, DIRECTOR GENERAL OF PROSECUTION PUBLIC PROSECUTOR SRI.SUMAN CHAKRAVARTHY

O R D E R

Challenging Annexure A8 order passed by the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram in Crl.M.P. No.991/2016, the first counter petitioner therein has come up under Section 482 Cr.P.C. for getting Annexure A6 complaint, Annexure A7 remarks, and Annexure A8 order, quashed.

2. A private complaint was filed before the court below by the 5 th respondent herein as complainant, in the form of Annexure A6. In Annexure A6, it was alleged that in the investigation of VACB Crime No.6/2014, which was ordered against the then Finance Minister Sri. K.M. Mani and others, there were conscious attempts from the part of the petitioner and also from the 2 nd respondent to hush up the issues somewhat for paving way to the accused in the case to escape from the clutches of law. It is alleged that the said conscious attempts from the part of the petitioner herein as well as the 2 nd counter petitioner in Annexure A6 are writ large from the contents of the Case Diary in that case. The court below, after perusing Annexure A6 complaint, called for the Case Diary in Crime No.6/2014 and perused the Case Diary and also Annexure A7 remarks, and ordered a preliminary inquiry into the allegations in the complaint, through Annexure A8 order.

3. According to the petitioner, the court below had bypassed the contours of all legal provisions by ordering such a preliminary inquiry, after applying his mind to the facts of the case and also in applying his mind on the contents of the Case Diary of another case. The petitioner is also seriously aggrieved of Annexure A7 remarks allegedly furnished by one Smt. S.Jaya, Administrative Assistant of the Directorate of Vigilance and Anti-Corruption Bureau.

4. Heard the learned counsel for the petitioner Sri.C. Unnikrishnan and the learned Director General of Prosecutions Sri.C. Sreedharan Nair and the learned Senior Public Prosecutor Sri. Suman Chakravarthy for R1 to R2 and R6.

5. According to the learned counsel for the petitioner, this is a case wherein the court below had gone to the stage of Chapter XV of the Code of Criminal Procedure and therefore, the court below could not have reverted back to the stage of Section 156(3) Cr.P.C. It has been further argued that the court below ought not to have called for the Case Diary in another case and perused it for the purpose of satisfying himself with regard to the correctness of the allegations in the complaint. According to the learned counsel for the petitioner, the act of the court below is such that the court below had already taken cognizance of the offence in the complaint and thereafter, reverted back to the stage of Section 156(3) Cr.P.C. It has been further argued that the court below has not followed the directions laid down by the Apex Court in

# Priyanka Srivastava v. State of U.P. and others, (2015) 6 SCC 287

in passing Annexure A8 order.

6. It has also been argued that the Apex Court in

# Lalita Kumari v. Government of Uttar Pradesh and Others, (2014) 2 SCC 1

has laid down the directions to be followed by the Police in conducting an investigation when they are getting complaints relating to certain specified cases like corruption cases, matrimonial cases etc. By relying on Lalita Kumari (supra), the learned counsel for the petitioner has further argued that the court below was not justified in ordering a preliminary inquiry. The argument is that any of the provisions in the Code of Criminal Procedure does not enable the Special Judge to pass an order for preliminary inquiry.

7. Per contra, the learned Director General of Prosecution and the other Senior Public Prosecutor have challenged the competency of the petitioner to challenge Annexure A8 order. It has been argued that a person against whom even an investigation is ordered, or a person against whom a preliminary inquiry has been ordered, cannot challenge the order by which the investigation was ordered or by which the preliminary inquiry has been ordered. It has also been argued that the court below was perfectly justified in calling for and perusing the Case Diary in order to make sure that the allegations in the complaint are supported by the contents of such a document.

8. According to the learned Director General of Prosecutions, the power exercised by the court below in calling for and perusing the Case Diary was only just an extension of the powers to be exercised by the court below under Section 156(3) Cr.P.C. It is argued that the present stage is too premature to challenge the said aspects.

9. On a perusal of Annexure A6 complaint, it seems that it has been specifically alleged that the petitioner had unnecessarily interfered in the investigation with a view to aiding the accused against whom that investigation was being conducted. It has also been alleged therein that the petitioner being a Senior Police Officer of the Indian Police Service, who was then functioning as the Director of the VACB, was instrumental in attempting to interfere with the proper investigation of that case. It seems that the defacto complainant/5th respondent herein has been repeatedly clamouring that the said attempt from the part of the petitioner is discernible from the contents of the Case Diary of the other case.

10. It is trite law that even before taking cognizance, a criminal court is empowered to issue summons for the production of a document or a thing within the meaning of Section 91(1) Cr.P.C. This is a case wherein the allegations are levelled against a Senior Police Officer. In such case, even if a complaint is directly preferred before the Police, normally, it could not serve any purpose. This is a case wherein the 5 th respondent has clearly stated that the allegations raised by him against the petitioner herein and the 2 nd counter petitioner in the complaint, are discernible from the Case Diary of the other case. The 5 th respondent herein cannot have any access to the Case Diary. In such case, it has to be considered that there was nothing wrong on the part of the court below in calling for such a document for its perusal to satisfy itself whether such allegations could be levelled against the petitioner or not. At that stage, by the mere perusal of such a document or the contents of the Case Diary by the court below, it cannot be said that the court below had passed on to the stage of Section 200 Cr.P.C. The attempt of the court below in calling for and perusing the Case Diary could only be styled as an attempt to clarify or satisfy itself whether the allegations levelled in the complaint are probable or not. The said approach by the court below through the perusal of the Case Diary was only for the satisfaction that there is possibility of such an allegation in the complaint and that it is a complaint of facts constituting an offence within the meaning of Section 190(1) (a) Cr.P.C.

11. The Apex Court in Priyanka Srivastava (supra), has found the necessity of an affidavit in support of a complaint for enabling the forwarding of the complaint for investigation under Section 156(3) Cr.P.C. It has also been held that in such cases, the complainant ought to have taken recourse to Section 154(1) or Section 154(3) Cr.P.C.

12. It has to be noted that this is a case wherein allegations are levelled against a Senior Superior Police Officer. In such case, the complainant, who is an ordinary person being a member of the public, cannot be compelled to file a complaint against such a police officer before the police themselves. It may not yield any result and that may be the reason why he has chosen to approach the court below through Annexure A6 complaint. In such a case, it cannot be said that he had bypassed the directions contained in Priyanka Srivastava (supra). Apart from that, it seems that the complainant was making a wake up call to the court below that unnecessary interferences were there in the investigation and for that purpose, he wanted the court below to peruse the Case Diary in the case.

13. It is not correct to say that the court below had gone to the stage of Section 200 Cr.P.C. or has done anything by applying the powers under Chapter XV Cr.P.C. Even as per Rule 26 of the Criminal Rules of Practice, a complaint against a police officer shall not be referred to by a Magistrate under Section 202 Cr.P.C. to any person other than a Magistrate subordinate to him. Had the court below gone to the stage of Section 200 Cr.P.C. or 202 Cr.P.C., the court below could not have directed the VACB to conduct a preliminary inquiry. Apart from that, as noted above, the attempt of the court below was only to peruse the Case Diary to ascertain whether there could be a probable allegation against the petitioner herein and the 2 nd counter petitioner in Annexure A6. The said perusal made by the court below cannot be styled as an act of taking cognizance. There was only a limited application of mind by the court below at that stage, and the court below has not stated that the allegations are correct. The court below was also not expected to ascertain whether the allegations are correct or not at that stage.

14. According to the learned counsel for the petitioner, Annexure A6 cannot be treated as a complaint at all, since it is not a complaint of facts constituting an offence. It is true that only a Magistrate (here, Special Court) empowered under Section 190 Cr.P.C. can pass an order under Section 156(3) Cr.P.C. If it is not a complaint of facts constituting an offence, definitely, such a compliant is not qualified to be one under Section 190(1)(a) Cr.P.C. empowering such a Magistrate or the Special Judge to take cognizance of the offence on the complaint. At the same time, a Magistrate or a Special Judge is empowered to take cognizance of an offence by invoking the power under Section 190(1)(c) Cr.P.C. also upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Here, the contents of the Case Diary in the other case cannot be treated as an information received from a police officer. Such an information is given by the complainant in the case that the Case Diary in the other case will clearly show the commission of such an offence by the counter petitioners in Annexure A6. On ascertaining such facts from a Case Diary, in normal circumstances, the court below could have taken cognizance of the offence. At the same time, the allegation being with regard to the commission of an offence under the Prevention of Corruption Act, 1988, the court below could not have taken cognizance of the offence in view of the bar contained under Section 19 of the P.C. Act. The taking of cognizance without prior sanction under Section 19 is barred. Therefore, at any stretch of imagination, it cannot be construed that the court below had taken cognizance of the offence and thereafter, reverted back to Section 156(3) Cr.P.C.

15. According to the learned counsel for the petitioner, the court below was not empowered to order a preliminary inquiry and such a power has not been conferred on the court below under any of the provisions of the Cr.P.C. True that the court below was empowered to pass an order under Section 156(3) Cr.P.C. Such an order is one for investigation. At the same time, the guidelines given by the Apex Court in Lalita Kumari (supra) have also to be taken note of. In Lalita Kumari (supra), the Apex Court has cautioned that in such case, if the information received does not disclose a cognizable offence; but indicates the necessity for an inquiry, preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. True that in Lalita Kumari (supra), the Apex Court was dealing with complaints being filed regarding corruption cases directly before the police. At the same time, the aforesaid mandate contained in Lalita Kumari (supra) clearly covers a situation of the present kind also. If the information contained in the complaint does not disclose a cognizable offence; but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether a cognizable offence is disclosed or not. Here, in this particular case, serious allegations have been raised against a Senior Superior Police Officer. In such case, the court below was very vigilant in not ordering an investigation under Section 156(3) Cr.P.C. After perusing the Case Diary, the court below had ordered a preliminary inquiry as per the mandates in Lalita Kumari (supra) in order to ascertain whether a cognizable offence is disclosed or not in the complaint.

16. When the mandates of the Apex Court in Lalita Kumari (supra) are there, it cannot be said that the court below was powerless to order a preliminary inquiry. By way of abundant caution and by taking note of the fact that the petitioner is a Senior Superior Police Officer, the court below had chosen to order a preliminary inquiry instead of ordering an investigation after the registration of a crime. It seems that the court below was scrupulously following the mandates of the Apex Court and nothing more. The said power exercised by the court below can only be considered as a power exercised by the court below as per the law declared by the Constitution Bench of the Apex Court in Lalita Kumari (supra).

17. The learned counsel for the petitioner has pointed out that the court below has heavily relied on Annexure A7. It is true that, at the first part of Annexure A8 order, the court below has placed reliance on the contents of Annexure A7. Annexure A7 is the remarks handed over to the legal adviser of the VACB by one Smt.S.Jaya, Administrative Assistant of the Directorate of VACB. The contents of the remarks are the following:-

“It is informed that Mr.Sukesan, Superintendent of Police, Vigilance & Anti-Corruption Bureau, Special Investigation Unit-I investigated the case VC.6/14/SIU-I and submitted a factual report in June 2015 to charge sheet the case. However, the then Director of Vigilance & Anti-Corruption Bureau Mr.Vinson M. Paul IPS directed Mr.Sukesan on 27/6/16 to refer the case. Again further investigation was done based on Court direction, but the then Director Sri.Sankar Reddy IPS also instructed to refer and Sri.Sukesan being in Superintendent of Police rank obeyed the instruction of his superior officers.”

18. At any stretch of imagination, the Administrative Assistant of the VACB could not have formed such an opinion. The remarks express the opinion formed by the Administrative Assistant. Annexure A7 does not reveal anything to substantiate the said opinion formed by her. The court below is not justified in placing reliance on the contents of Annexure A7. The court below ought to have thrown awayAnnexure A7 to the dust bin.

19. In order to fortify the argument that once the Magistrate or Special Court passes on to the provisions under Chapter XV of the Code, he cannot be reverted back to the stage of Section 156(3) Cr.P.C., the learned counsel for the petitioner has invited the attention of this Court to

# Jagannath Verma and Others v. State of U.P. and another, AIR 2014 All. 214

rendered by the Full Bench. It is trite law that once a Magistrate or the Special Court has gone to the stage of Section 200 Cr.P.C. and has proceeded under Section 200 or Section 202 Cr.P.C., he cannot revert back to the stage of Section 156(3) Cr.P.C. The argument forwarded by the learned counsel for the petitioner that for passing an order under Section 156(3) Cr.P.C., the court below had no power to peruse any documents, is devoid of merits. If some documents are appended with the complaint, the court below could have perused such documents also. Here is a case wherein the complainant was clamouring that all the allegations raised by him are discernible from the Case Diary in another case. A private individual cannot have access to the Case Diary. In such case, by exercising the powers conferred on the Magistrate under Section 91(1) Cr.P.C., the court below was perfectly right in calling the Case Diary because of the fact that it could also be a document for perusal for ascertaining the veracity of the allegations in the complaint.

20. The learned counsel for the petitioner has argued that in the light of Annexure A7 and Annexure A9, it is clearly discernible that the VACB has an axe to grind against the petitioner and, therefore, he cannot expect a fair deal from the hands of the VACB in the matter. It has been argued that therefore, the preliminary inquiry already ordered may be entrusted to any other agency. The petitioner has no case that the present investigating officer, who is engaged in the preliminary inquiry in this case, has any grudge towards him. His complaint is that there are reasons to believe that the Director of VACB is having some sort of enmity towards him. The investigating officer, who has presently undertaken the task of such a preliminary inquiry, shall see that such a preliminary inquiry shall be conducted without any malice. Such a preliminary inquiry should be fair and just. The intervention from the part of the Director, VACB regarding supervision should also be fair and just and the same should not reflect any hostile attitude towards the petitioner. The Director, VACB as well as the present investigating officer dealing with the preliminary inquiry shall ensure that there is no hostile animus from their part towards the petitioner.

21. From all the above, this Court is of the view that Annexure A8 order as such cannot be quashed. At the same time, all the observations in Annexure A8 order based on Annexure A7 remarks, are liable to be quashed. The preliminary inquiry shall continue as noted above and the same shall be conducted in a fair, just and proper manner, without any malice. Annexure A7 remarks is liable to be quashed.

In the result, this Crl.M.C. is allowed in part and all the observations contained in Annexure A8 so far as it relates to Annexure A7 remarks are quashed. Annexure A7 remarks stand quashed.

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