Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 79

IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Narayana Pisharadi, J.
Shailaja P – Petitioner
Versus
The Vigilance And Anti Corruption Bureau Director and ors. – Respondents
Crl.Rev.Pet.No.1547 OF 2016
Decided On : 15-02-2021

Advocates:
Advocate Appeared:
For the Petitioner: Sri. T.G. Rajendran, Adv.
For the Respondent: Sri A Rajesh Spl PP

Important points:
When a complaint is filed before the Magistrate, ordinarily, he has got two options. The Magistrate may either forward the complaint to the police under Section 156(3) of the Code for investigation or he may take cognizance of the offence and proceed under the provisions of Chapter XV of the Code

Headnote:
Criminal Procedure Code- Section 200 , Section 203-The Prevention of Corruption Act, 1988 - Sections 13(1)(c) and 13(1)(d) read with 13(2) ;; The Indian Penal Code-Sections 465, 468, 409, 420 and 120B --If the complaint on the face of it does not at all make out any offence-The Magistrate may reject the complaint-Power of rejection at the precognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Section 203 Cr.P.C since the latter power of dismissal is one which can be exercised only at the post cognizance stage
Statement of facts:
The petitioner filed Annexure-I complaint before the Director of Vigilance and Anti-Corruption Bureau (VACB). The complaint was with regard to the corrupt practices conducted by the officers of the Malanadu Rubber and Other Agricultural and Processing Co-operative Society in relation to the procurement of copra/coconut.
Finding of the court:
The complaint did not disclose commission of any offence alleged in the complaint. In such a situation, the learned Special Judge should not have dismissed the complaint but he should have rejected it. Dismissal of the complaint at that stage is not contemplated by law-The error committed by the learned Special Judge in passing an order dismissing the complaint instead of rejecting it is not sufficient to set aside Annexure-VIII order
Result: Revision petition is dismissed.

ORDER :

The revision petitioner is said to be a human rights activist. She was the complainant before the Court of the Enquiry Commissioner and Special Judge, Thalassery.

2. The petitioner filed Annexure-I complaint before the Director of Vigilance and Anti-Corruption Bureau (VACB). The complaint was with regard to the corrupt practices conducted by the officers of the Malanadu Rubber and Other Agricultural and Processing Co-operative Society (for short 'the Society') in relation to the procurement of copra/coconut.

3. Annexure-I complaint was forwarded by the Director of VACB to the Inspector of Police, VACB, Kasaragod unit. After conducting a surprise check and verification of records, the Inspector of Police submitted Annexure-II report to the Director of VACB. This report contained the details of the irregularities noticed during the surprise check and also some recommendations.

4. The Director, VACB forwarded Annexure-II report to the Government. As per the direction of the Government, a vigilance enquiry was conducted by the Dy.S.P, VACB, Kasaragod unit. He submitted Annexure-IV enquiry report stating that the enquiry did not yield any direct evidence to prove the allegations.

5. The petitioner then filed a writ petition as W.P.(C) No.13750/2015 before this Court for quashing Annexure-IV vigilance enquiry report and for issuing a direction to the VACB to conduct a fresh enquiry in the matter. As per Annexure-VI judgment, this Court closed the writ petition granting liberty to the petitioner to invoke appropriate remedies in accordance with law.

6. Thereafter, the petitioner filed Annexure-VII complaint in the Court of the Enquiry Commissioner and Special Judge, Thalassery against the Secretary, President and the Directors of the Society, the Office Manager of KERAFED, the Joint Registrar of the Co-operative Societies and a private person, alleging commission of the offences punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Sections 465, 468, 409, 420 and 120B of the Indian Penal Code.

7. Learned Special Judge forwarded Annexure-VII complaint to the Dy.S.P, VACB for conducting preliminary enquiry. A preliminary enquiry report was filed in the court stating that a detailed enquiry was conducted at the time of the vigilance enquiry and there are no grounds for taking any action against the accused persons based on the allegations made by the complainant.

8. Learned Special Judge considered the allegations in Annexure-VII complaint and also the findings in the vigilance enquiry report and found that the allegations made in the complaint are proved to be not tenable by the vigilance enquiry conducted and apart from the allegations made in the complaint, there are no materials before the court to hold that misappropriation of funds was committed by the accused persons. Accordingly, as per Annexure-VIII order, the learned Special Judge dismissed the complaint.

9. The petitioner has filed this revision petition challenging the legality and propriety of Annexure-VIII order.

10. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

11. Learned counsel for the petitioner has not made any submissions before this Court based on the allegations contained in Annexure-VII complaint. Therefore, it is not necessary here to narrate the allegations in the complaint in detail. Suffice it to state that the allegations in Annexure-VII complaint are with regard to the misconduct, malpractices and misappropriation of money committed by the officers in connection with procurement of copra/coconut by the Society.

12. Learned counsel for the petitioner has challenged the legality and propriety of Annexure-VIII order on the following grounds:

(1) Learned Special Judge should have treated Annexure-VII complaint as a protest complaint. The complaint should not have been forwarded to the VACB for conducting any preliminary enquiry.

(2) Learned Special Ju