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2009 Supreme(Ker) 655
High Court Of Kerala
THE HONOURABLE MR. JUSTICE M. SASIDHARAN NAMBIAR
M.R.Reghuchandrabal - Appellant
Versus
State of Kerala, Represented by the Chief Secretary - Respondents
WP(C).No. 15082 of 2009 (Q)
Decided On : 18 August 2009
Headnote:
Criminal Procedure Code, 1973 - Sections. 2(h), 36, 169, 170, 173( 2) and 173( 8) - Kerala Police Act 1960 - Section. 4 - Powers of superior officers of police - Release of accused when evidence deficient - Cases to be sent to Magistrate, when evidence is sufficient - Report of police officer on completion of investigation - When does investigation start and end ?Does investigation end only when a final report under S.169 or 170, in accordance with S.173(2) is filed before Court ?Even when there is continuation of investigation after forming an original opinion, can it be treated as further investigation ? What is provided under S.173(3) & (8); if a further investigation or reinvestigation ?Even though Investigating Officer has a duty to forward final report to Government as per G.O.(P) 65/92/Vigilance dated 12.5.1992, approval or permission from Government if necessary to submit a report under S.173(2) ? Even though under S.4 of Kerala Police Act, Government has power to give broad policy directions regarding investigation and prosecution of classes of cases and to appraise quality of work, whether it extends to interfere with investigation of individual cases ? Whether under S.4, Government can order further investigation or to interfere in course of investigation ? Whether accused has a right to be heard for ordering further investigation ? Held, The investigation which starts on registration of the F.I.R. will terminate/end only on submission of a report to the Magistrate under S.173(2) - The stage of investigation will continue till the submission of the report under S.173(2) of the Code. Therefore for the reason that Investigating Officer has formed an opinion and submitted a report to the Superintendent of Police, as provided under the Vigilance Manual or the Government Orders it cannot be said that the investigation was completed, because of the opinion originally formed or the report forwarded to the Superintendent of Police or the Director of Vigilance - Sub-s.(8) also contemplates only further investigation and not reinvestigation. What is provided under sub-ss. (3) and (8) is only a further investigation and not reinvestigation - The Government Order does not provide that the final report so forwarded by the Investigating Officer through the Superintendent of Police, D.I.G. of Police and Director of Vigilance Investigation to the Government under clause 8(2) needs the approval of the Government to submit a report under S.173(2) or that a report can be submitted only after getting the approval or permission from the Government. Sub-clause (3) only provides for obtaining necessary legal sanction for submitting the charge under S.173(2). Even if it is taken that as per the procedure provided under G.O.(P). 65/92/Vig. decision is to be taken by the Government, can it be said that it is for the Government to decide whether a report as provided, under S.169 or 170 is to be submitted before the Court and not by the officer in charge of the Police Station? Even if there are materials in evidence to satisfy that the accused committed the offence, on receipt of the report, can the Government decide or dictate that a report as provided under S.169 need alone be submitted to the Court by deciding to proceed against the accused before the Vigilance Tribunal or finding that a departmental enquiry is sufficient and instruct not to file a report under S.170. If such a power is to be given to the Government, it would be fatal to the very system of criminal administration of justice. If such a power is granted to the Government, Government may decide to protect a corrupt Government servant for political reasons inspite of the fact that investigation reveals that there is evidence sufficient enough to place him for trial before the Court. The Government cannot be permitted to interfere with administration of criminal justice by granting such power, which is not provided under the Code as it would only destroy the criminal justice system - Though Government has power to give broad policy directions regarding investigation and prosecution of classes of cases and to appraise quality of work, it does not extend to interfere with investigation of individual cases - Even in absence of word 'superintendence', S.4 of Kerala Police Act provides that the administration vested in I.G. of Police is not absolute, but subject to control of Government - Word 'control' in S.4 cannot be given a restricted meaning - In appropriate cases, Government can order further investigation - But neither Government nor Minister has power to interfere in the course of investigation - Accused has no right to be heard before ordering a further investigation - Petition dismissed
Whether State Government has power of superintendence over a case being investigated by vigilance and Anti-corruption Bureau? Whether the Government is competent to order further investigation? When does an investigation ends? These are the important questions to be settled in this Writ Petition.
2. Case of petitioner in brief is as follows:-Based on an inquiry conducted by the vigilance and Anti-corruption Bureau (in short VACB) on the allegation that as a Minister of Excise and as a member of the Legislative Assembly during the period 1991 to 1996, petitioner amassed wealth disproportionate to his known source of income to the tune of Rs.6 lakhs, after getting authorization from Director of vigilance and Anti-corruption Bureau, Crime VC4/2001 of Special Cell, Thiruvananthapuram under section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988, under Ext.P2 F.I.R, was registered. The allegation against the petitioner is that he constructed a palatial house, T.C.5/2286(1) in 9 cents property in R.S.No.254/1-4 of Randamanda Village in Thiruvananthapuram District investing Rs.16 laksh, Rs.2 lakhs was spent for acquisition of furniture and had remitted Rs.70,980/-towards the housing loan availed from kerala State Housing Board during the period and also is having 480 gms gold and inclusive of household expenditure of Rs.2.53 lakhs, he had a total assets of Rs.20.53 lakhs but the lawful income was only 14.70 lakhs and thereby he has a disproportionate asset of Rs.5.83 lakhs rounded to Rs.6 lakhs. It is contended that after investigation it was found that there is no case against the petitioner, and still Superintendent of Police as per Ext.P3 order dated 19.7.2007, directed the Deputy Superintendent of Police-I, VACB, Special Cell, Trivandrum to take up further investigation and thereafter the case was investigated further. Finally a refer report was prepared by the Investigating Officer and sent to the Legal Advisor, VACB, for approval, as a mistake of fact. Petitioner contended that in such circumstance the only course open to the Investigating Agency is to file a final refer report before the court and they failed to discharge the duty by not submitting the report and it is illegal and unprecedented and intended only to harass the petitioner. Petitioner approached the State Public Information Officer, under the provisions of Right to Information Act to get the details of investigation. Under Ext.P4 reply petitioner was informed that after completing the investigation it was submitted to the Director of Vigilance and then forwarded to the Government and is under the consideration of the Government. When petitioner again applied for details of investigation, he received Ext.P5 information to the effect that vigilance Director has submitted a report to the Government on 15.1.2009 and Government has directed to reinvestigate the case. Ext.P6 copy of the report submitted by the Director of VACB to the Government was also furnished to the petitioner. When petitioner applied for getting the order issued by the Government, ext.P8 circulation note containing the notes of orders of the Home Minister who is in charge of the Vigilance Department, directing reinvestigation was received. It is the case of the petitioner that under Chapter XII of Code of Criminal Procedure the power of investigation is completely vested with the police and after completion of the investigation, it is for the Investigating Officer to submit a final report to the court and nobody else including the Minister has any right to interfere with that power and therefore Ext.P1 order issued by the Government to the Director of vigilance to take steps to reinvestigate the case is illegal. Petitioner would contend that when the Government has no role in the investigation, Government cannot order reinvestigation and when the Director of VACB already concluded that it is a mistake of fact, Government has no locus standi or legal right to issue
