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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.HARIPRASAD, N.ANIL KUMAR, JJ.
K.Karunanidhi, S/o. Krishnan – Appellant
Versus
State Of Kerala – Respondent
W.P.(C) Nos.18325 of 2015 & 22684 of 2014
Decided on : 10-02-2020
Prevention of Corruption Act, 1988- Sections 7, 13(1)(d), Section 13(2)- The Vigilance Tribunal Rules- -The Kerala Police Act, 1960, Rule 4-Constitution of India- Art. 14, 21 -Those officers, who work in VACB at present, also get power and authority from the same Statute and therefore they are to be treated as police officers. So much so, they are entitled to register cases under the PC Act, carry on investigation and file a final report. It goes without saying that they are also entitled to prosecute the offenders--Rule 4 of the Vigilance Tribunal Rules does not empower the State Government to pick and choose arbitrarily some cases involving allegations of corruption to be enquired into by the Vigilance Tribunal constituted under the Vigilance Tribunal Rules and some other cases to be prosecuted before the Court of Enquiry Commissioner and Special Judge functioning under the PC Act. The State Government, on finding objectively that there is no relevant material to prosecute a public servant under the PC Act, shall specifically observe in the order passed for referring a case to the Vigilance Tribunal the reasons for not taking recourse to a prosecution under the PC Act against him.
Statement of facts:
Petitioners are the accused in two separate cases registered under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 - -
Whether the Vigilance and Anti Corruption Bureau is a police force constituted under the State Government's legislative power conferred by List II of the 7th Schedule to the Constitution of India and do they have any lawful authority to register first information reports (FIR), investigate crimes, submit charge sheets and prosecute the alleged offenders?
(II) Whether the executive functionaries of the State Government have power to create a Vigilance Department without any statutory support?
(III) Does the exercise of such powers infringe the fundamental rights of citizens, enshrined in Part III of the Constitution of India, especially the one under Article 21?
(IV) Whether Rule 4 of the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 is ultra vires of the Constitution?
Finding of the court:
The Vigilance and Anti-Corruption Bureau (VACB) is a specialized police force constituted in the exercise of the State Government's legislative power and the officers who worked in the erstwhile Vigilance Department derived power and authority from the Kerala Police Act, 1960. For the same reason, we find that those officers, who work in VACB at present, also get power and authority from the same Statute and therefore they are to be treated as police officers. So much so, they are entitled to register cases under the PC Act, carry on investigation and file a final report. It goes without saying that they are also entitled to prosecute the offenders. Challenge against Ext.P4 is devoid of any merit in law.
(II) We declare that Rule 4 of the Vigilance Tribunal Rules does not empower the State Government to pick and choose arbitrarily some cases involving allegations of corruption to be enquired into by the Vigilance Tribunal constituted under the Vigilance Tribunal Rules and some other cases to be prosecuted before the Court of Enquiry Commissioner and Special Judge functioning under the PC Act. The State Government, on finding objectively that there is no relevant material to prosecute a public servant under the PC Act, shall specifically observe in the order passed for referring a case to the Vigilance Tribunal the reasons for not taking recourse to a prosecution under the PC Act against him.
Result: Writ petitions are disposed accordingly.
JUDGMENT :
Hariprasad, J.
Legal questions having profound and radical consequences commonly raised in these writ petitions are thus:
(I) Whether the Vigilance and Anti Corruption Bureau (in short, "VACB") is a police force constituted under the State Government's legislative power conferred by List II of the 7th Schedule to the Constitution of India and do they have any lawful authority to register first information reports (FIR), investigate crimes, submit charge sheets and prosecute the alleged offenders?
(II) Whether the executive functionaries of the State Government have power to create a Vigilance Department without any statutory support?
(III) Does the exercise of such powers infringe the fundamental rights of citizens, enshrined in Part III of the Constitution of India, especially the one under Article 21?
(IV) Whether Rule 4 of the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 is ultra vires of the Constitution?
2. Petitioners are the accused in two separate cases registered under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, “PC Act”). Exts.P1 and P2, in both the writ petitions, are the first information reports and final reports submitted against the petitioners.
3. These writ petitions came up initially before a learned single Judge. In terms of an order passed by the learned single Judge on 02.03.2015, the Registry, after taking orders from the Hon'ble Chief Justice, placed these matters before us for adjudication.
4. Heard Shri D.Kishore, learned counsel for petitioners and Shri Suman Chakravarthy, learned Senior Government Pleader for the State Government.
5. Allegations against the petitioner in W.P.(C) No.22684 of 2014 are that while working as Village Officer (undoubtedly a public servant), he abused his official position by demanding illegal gratification of Rs.15,000/-from the 7th respondent for receiving land tax for three acres of land in survey No.159/1A-1 of Thinoor Village in Vadakara Taluk. After many negotiations, the petitioner reduced the bribe amount to Rs.6,000/-and he directed the defacto complainant to pay the amount on 16.09.2011. Pursuant to the tenacious demand, the defacto complainant paid the sum from the petitioner's office. Accordingly, a prosecution is launched alleging that he has committed the offences aforementioned.
6. Allegations against the petitioner in W.P.(C) No.18325 of 2015 are that accused 1 to 7 and 9, while working as public servants, abused their official positions and committed criminal misconduct by demanding and accepting bribe. Accused 1 to 9 were also engaged in criminal conspiracy and had issued bogus pattayams in Idukki Village during the year 2000. Further, they caused disappearance of evidence by tearing off thandaper sheets of the relevant register kept in the Village Office, Idukki and thereby committed the offences. As stated above, crimes were registered against them and on the close of investigation, final reports were also filed in both the cases.
7. For the sake of convenience, W.P.(C) No.18325 of 2015 is taken as the leading case since prayers therein are more comprehensive.
8. Grounds of challenge in the writ petitions, stated briefly, are as follows: Registration of Ext.P1 FIR and submission of Ext.P2 final report in both cases by the Deputy Superintendents of Police, VACB, Idukki Unit and Kozhikode Unit respectively (who are the 6th respondent in both cases), are without any lawful authority. According to the petitioners, 6th respondent in each case is not a “police officer” within the meaning of Section 17 of the PC Act. They also contended that the 6th respondent legally cannot register a crime or submit a final report with respect to an offence under the PC Act as the officials of VACB are not police officers. It is therefore contended that for the said reason alone Exts.P1 and P2 are liable to be quashed.
9. Section 17 of the PC Act mandates that only a police officer not below the rank of a Deputy Su
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