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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sunil Thomas, J.
Rajeev – Petitioner
Versus
State Of Kerala, Rep By Secretary, Ministry Of Home Affairs, Vigilance Department And Ors. – Respondents
WP(C).No.27091 OF 2019(J)
Decided On : 15-03-2021
Code of Criminal Procedure, 1973 – Sections 190, 200, 162, 154, 157 – Prevention of Corruption Act – Section 17A – Irregularities – Manipulations – Writ Petition is filed by the petitioner challenging Ext.P3 report – According to the petitioner, Ext.P3 Enquiry Report was not legally sustainable, not the outcome of a proper investigation and hence liable to be quashed – Request of the petitioner was to entrust the investigation with another senior officer of the Crime Branch – Whether investigation can be handed over to the CBI even after commencement of trial. Supreme Court answered that the stage of the case, cannot be the governing factor and the concept of fair investigation and fair trial has to be given primacy. – Widening the horizon of the concept, the Supreme Court held that impartial and truthful investigation was imperative.
Finding of the court: Court has a basic duty to uphold truth and to ensure a real and fair investigation. The pro active role of court in ensuring proper investigation by ordering fresh investigation or further investigation or re-investigation was highlighted in Pooja Pal's case. – In Ajay Hasia's case (supra) Supreme Court interfered in the selection of candidates to an Engineering College, inter alia, on a finding that the oral interview of each candidate lasted only for 2-3 minutes and the interview was a farce. – Recapitulation of the entire case Laws lead to the following settled principles other than covered by Section 17A of the Prevention of Corruption Act – It is clear that the impugned report in this case is not legally sustainable. – Court has ample power to interfere in appropriate cases, though invariably this court should not interfere into the discretion yet to be exercised by the Special Judge. – However, in the peculiar situation arising in this case, Ext.P3 report will stand rejected. – Second respondent shall direct another Dy.S.P to conduct a preliminary enquiry, strictly confined to the contours of a preliminary enquiry as laid down by Supreme Court in Lalitha Kumari's case. – Officer shall refer to the observations made in paras 4 to 11 of this judgment. – Preliminary enquiry shall be completed at the earliest, at any rate within two months from the date of taking charge by the officer. – Under no circumstance can the enquiry exceed the permitted period. – Court which direct a preliminary enquiry is under an obligation to direct the concerned officer to file the report within the prescribed period. – Constitutional courts are also empowered to interfere in appropriate cases and pass orders directing the enquiring officer to complete the preliminary enquiry within the stipulated time. – Very fact that a preliminary observation arrived at by the officer that the matter needs a detailed investigation itself may indicate the existence of a prima facie case.
Result: Writ Petition Allowed
JUDGMENT :
The seventh respondent Co-operative bank invited applications from eligible candidates to fill up 6 posts of appraisers and 5 posts of peons. A written examination was conducted on 12.11.2017. 99 candidates appeared in the written examination for the post of appraisers and 158 candidates for the post of peons. The written examination was conducted with the assistance of an outside agency called “Global Trust, Kottayam”. The maximum mark allotted for the written examination was 100. Short listed candidates were called for an interview. The mark allotted for the interview was 20. Petitioner was a candidate to the post of appraiser and being successful, he was called for the interview held on 25.11.2017. According to the petitioner, though he answered all the questions asked by the interview Board, he was ranked only 20th in the list. It was alleged that the answer papers of the written examination of those who had given bribe to the Directors were manipulated to ensure that they secure high marks in the written examination. It was further alleged that specific instructions were given to such candidates, to fill up only answers fully known to them. The left out answers were filled up after completion of examination with the help of Directors to ensure high marks for them. According to him, he had noticed few candidates including the son of a Bank Manager and the son of a local gold merchant spending time in the examination hall, without seriously answering the questions. They were also seen later at the time of interview. Few had informed him that they have been assured job. Later it was understood that the above referred persons were ranked top in the final list. It was alleged by the petitioner that the first 6 persons in the rank list were appointed to the post of appraiser by accepting Rs.30 to 35 lakhs as bribe. According to the petitioner, immediately after the interview, final list was published on the same day, and appointment orders were given to such candidates on the same day itself.
2. Alleging irregularities and manipulations in the above appointments, petitioner submitted Ext.P2 complaint before the Vigilance Court, Thrissur. The court directed Dy.S.P to conduct a quick verification and to submit a report. The Dy.S.P, after conducting the preliminary investigation, submitted Ext.P3 report before the court. It was stated that the enquiry did not reveal any irregularity, attracting offences under the Prevention of Corruption Act. According to the petitioner, the enquiry was conducted in a perfunctory manner, the officer did not verify the relevant records and failed to investigate the relevant facts. The conclusions were perverse, not supported by any evidence and inconsistent with the finding that the appointments were made to posts which were not legally available to the bank. Bank also ignored the conclusion arrived at by the Joint Registrar of Co-operative Societies in Ext.P4 report, that appointments were made in a hasty and illegal manner.
3. In the above circumstances, this Writ Petition is filed by the petitioner challenging Ext.P3 report. According to the petitioner, Ext.P3 Enquiry Report was not legally sustainable, not the outcome of a proper investigation and hence liable to be quashed. The request of the petitioner was to entrust the investigation with another senior officer of the Crime Branch.
4. Evidently, the allegations levelled by the petitioner is serious. The court below also felt that a quick verification was liable to be conducted and consequently the Dy.S.P was directed to conduct quick verification and to file report. Ext.P3 is the quick verification report which shows that 19 witnesses were questioned and their statements recorded. Out of it, 7 were the candidates who had applied and four among them had got selected. Apart from them, the complainant, the Deputy Registrar of Co-operative Society who conducted a departmental enquiry, two Assistant Registrars of Co-operative Societies, th
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