2018 Supreme(Ker) 921

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. UBAID, J.
Ramesh Chennithala - Appellant
Vs.
State of Kerala & Anr - Respondents
O.P.(Crl.).No. 83 of 2017
Decided on : 15-10-2018

Important points" In individual instances of administrative actions by public servants the Police machinery can conduct enquiry or investigation under the P.C Act subject to the new Section 17A, if the act or conduct of the public servants involves elements of corruption or misconduct as defined under the law.
" Malfeasance or misfeasance or wrong administration, or in all cases of loss caused to the Government by the discharge of duty by public servants, a prosecution under the P.C Act cannot be initiated. If it is only a case of dereliction of duty or wrong administration or malfeasance or misfeasance detected on enquiry, only disciplinary action can be initiated against the erring public servant, and if any public servant has caused any wrongful loss to the Government by the discharge of his official functions improperly or wrongfully, or as the result of wrong administration or malfeasance or misfeasance, no doubt, the Government or the appropriate authority can recover the loss from him, and also initiate disciplinary action against him.

Headnote:The Constitution of India Article 227- The Prevention of Corruption Act, 1988- Section 156(3), Section 13 (1), Section 7, Section 13, Section 17A, Section 19, Section 7A,Sections 8 to 10, Sections 7 and 13, Sections 20, Sub Clause(iii) of Clause(d) of Section 13(1), Clause(d) to Section 2- Criminal Procedure Code-Section 154

       Facts of the case

        The petitioner was the Home Minister of Kerala in the former Government- The former Government had granted promotion to four Senior Police Officers of IPS rank to the cadre of Director General of Police as per the GO(RT)No.1932/2016/GAD dated 01.03.2016- This order was issued on the basis of a cabinet decision- One of the promotees was posted by the Government as the Director of the VACB, which was a cadre post meant for Director General of Police- The Additional second respondent herein brought a complaint before the court below alleging nepotism, corruption etc, in the said promotion, and also in the posting of the Director of the VACB, and he sought orders for investigation under the Prevention of Corruption Act (PC Act), 1988- The police officer who obtained promotion along with three others, and posted as Director of the VACB, is the first respondent in the complaint- The second respondent in the complaint is the then Chief Minister of Kerala, the 4th respondent is the then Chief Secretary of the Government, and the 5th respondent is the then Additional Chief Secretary of the Government-The complaint itself states that promotion was given to the police officers as decided by the cabinet, but it alleges that it was in prosecution of a design hatched by the then Home Minister with the involvement of the Chief Minister, to by pass some senior police officers who had a better claim for posting as Director of Vigilance, and the then Government was very particular to post the first respondent as Director of the VACB-To facilitate such posting, four police officers including the first respondent were granted promotion in violation of the provisions of the law relating to the promotion of IPS officers, the complaint would allege- An order passed by the Special Court(Vigilance),Thiruvananthapuram on 30.12.2016 forwarding a complaint to the Director of the Vigilance and Anti Corruption Bureau (VACB), Thiruvananthapuram for preliminary enquiry, and also for registering a crime, if found necessary, is under challenge in this petition brought under Article 227 of the Constitution of India.

       Finding of the courts

       Finding the necessity of some guidelines to the VACB and the Police Department generally in the matter of discharge of functions under the P.C Act-

       " Investigation under the P.C Act cannot be conducted as regards policy decisions or administrative actions of the Government

       " The VACB in the State of Kerala is only a branch of the Police Department-It is not a statutory creation like the Central Bureau of Investigation (CBI) or the National Investigating Agency

       " The VACB is also governed by the provisions of the Code of Criminal Procedure and the Indian Evidence Act as the entire Police Department is governed by such laws.

       " The CBI or the NIA or the VACB cannot have any special privilege or prerogative in the matter of investigations because every investigation is governed by the Code of Criminal Procedure, which is applicable to all prosecuting agencies

       " Any provision of the Manual against the provisions of the law of the land like the Code of Criminal Procedure, or the Indian Evidence Act, will not have any value or application in the matter of investigation or prosecution

       " Investigation of corruption cases or cases under the P.C Act must be seriously dealt with as a specialised area where high competence, caliber, integrity and honesty of the officers is required-

       " Crimes can be registered and investigation can be made under the P.C Act only in cases where elements of corruption or misconduct are revealed or disclosed. If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant

       " The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry.

       " Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector

       " Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. Such functions cannot be the subject matter of enquiry or investigation under the P.C Act, unless the executive action or administrative action individually involves elements of corruption or criminal misconduct on the part of any public servant

       Result : Disposed of