B. Kemal Pasha, J.

1. Initially a crime was registered against the petitioner through Exhibit-P1 First Information Report on 28.05.2004. The Vigilance and Anti-Corruption Bureau (VACB) conducted a detailed investigation in the matter and filed Exhibit-P2 Final Report before the court below on 07.09.2007.

2. Through Exhibit-P2, the Superintendent of Police, VACB, Special Cell, Kozhikode has reported that all further actions in the case were dropped, and the court below was requested to accept Exhibit-P2 Final Report to that effect. Precisely, the case was referred by the VACB.

3. The court below has resorted to a strange procedure, which is not warranted by Law, through Exhibit-P3, which reads as follows:

"Produced the file. The percentage of DA with reference to income is 17.6%. He has retired from service on 31.05.2006. Considering the facts and circumstances of this case, I find that this is a fit case to take cognizance U/s.13(2) R/W Sec.13(1)(e) of the PC Act. Since he had retired no sanction is required. So register the case against Sri. K.A. Abdulrahiman as above."

4. It seems that the court below has not cared to apply its mind in the matter. Even though the court below has taken the view that it was a fit case to take cognizance of under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, the court below has chosen to direct the VACB to "register the case against" the petitioner. The said course adopted by the court below is not legally sustainable.

5. In King Emperor v. Nazir Ahmed [AIR 1945 PC 18] it was held:

"Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the Judiciary and the police are complementary, not overlapping and the combination of individual liberty with a duo observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then."

6. By approving the said decision in King Emperor (Supra), the Apex Court in Abhinandan Jha and others v. Dinesh Mishra [AIR 1968 SC 117] held:

"There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view"

7. In Abhinandan Jha (supra), it was further held:

"The investigation under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or