Back
2021 Supreme(Ker) 852
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
V.T. Mohanan, S/o. V.J. Thankappan - Petitioner
Versus
State of Kerala, represented by Chief Secretary, Government Secretariat & Ors. - Respondents
W.P.(C) No. 19044 of 2021
Decided On : 02-11-2021
For the Petitioner: G. Biju, S. Jayaprakash (Madavoor), V.A. Vinod, Ambadi Murali.
For the Respondent: Smt. Rekha S., SR.PP, Smt. Sylaja, PP.
Point of Law: It is not mandatory in all cases to complete preliminary inquiry within a period of seven days.
Headnote:
Constitution of India,1950 - Article 226 - Criminal Procedure Code,1973 - Section 154 - Preliminary enquiry inspite - Vigilance enquiry on complaint - FIR - Petitioner is that, VACB has not conducted any preliminary enquiry inspite of Government passing an order in that regard and that no F.I.R has also been registered against persons concerned. Therefore, petitioner has filed this writ petition under Article 226 of Constitution of India, praying that a writ of mandamus may be issued to Director, VACB, directing him to complete verification of Ext.P6 complaint and to register F.I.R on that complaint forthwith - Deputy Superintendent of Police, VACB, Southern Range has filed a statement with regard to matters mentioned in writ petition.
Finding of the Court: Criminal procedure which can only be after registration of FIR. Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into allegations made against respondent which, as observed hereinabove, can be said to be only for purpose of finding out a prima facie case for purpose of registration of FIR and merely because some more time is taken in conducting Preliminary Enquiry before registering FIR, entire criminal proceedings cannot be quashed - There shall not be any prejudice caused to accused at stage of holding Preliminary Enquiry which as observed hereinabove shall only be for purpose of satisfying whether any prima facie case is made out with respect to allegations made in complaint which requires further investigation after registering FIR or not - completed enquiry and he has also prepared a tentative report of enquiry but it needs approval by his superior officers - Director of VACB (fourth respondent) is directed to obtain report of enquiry Range, VACB immediately and to take a decision thereon within a period of one month from today.
Result: Writ petition is disposed of
JUDGMENT :
When a preliminary inquiry, as contemplated in Lalita Kumari v. Government of U.P., AIR 2014 SC 187, is conducted by a police officer, is it mandatory that the inquiry shall be completed within a period of seven days?
2. The petitioner is said to be a member of the Church of South India, a religious body of the holding company by name Church of South India Trust Association. He made Ext.P6 complaint to the fourth respondent, the Director of Vigilance and Anti-Corruption Bureau (VACB), alleging commission of corrupt practices and criminal misconduct in connection with the admission of students to MBBS course in the Dr. Somervell Memorial Medical College at Karakonam in Thiruvananthapuram District.
3. The grievance of the petitioner is that, the VACB has not conducted any preliminary enquiry inspite of the Government passing an order in that regard and that no F.I.R has also been registered against the persons concerned. Therefore, the petitioner has filed this writ petition under Article 226 of the Constitution of India, praying that a writ of mandamus may be issued to the Director, VACB, directing him to complete the verification of Ext.P6 complaint and to register F.I.R on that complaint forthwith.
4. Learned Government Pleader/Public Prosecutor has appeared for respondents 1 to 4. No notice was ordered to be issued to the fifth respondent.
5. Heard learned counsel for the petitioner and the learned Public Prosecutor.
6. The Deputy Superintendent of Police, VACB, Southern Range has filed a statement with regard to the matters mentioned in the writ petition. It is mentioned in this statement that the first petition filed by the petitioner was received on 15.02.2020. This statement is factually incorrect. Ext.P7 letter dated 19.10.2019 sent by the Director, VACB to the Additional Chief Secretary, Vigilance Department would clearly show that the petitioner had made Ext.P6 complaint dated 08.10.2019 to the Director, VACB and it was received without any delay in his office.
7. As per Ext.P8 letter, the VACB had informed the petitioner that the Government had ordered vigilance enquiry on the complaint made by him but no F.I.R has been registered.
8. In the statement dated 22.09.2021 filed by the Dy.S.P., Southern Range, it is mentioned that he has completed the enquiry and prepared a tentative report which has to be scrutinised by his superior officers.
9. Ext.P6 complaint is dated 08.10.2019. Ext.P7 letter dated 19.10.2019 would show that the Director, VACB had received Ext.P6 complaint in his office immediately after the date 08.10.2019. The information given to the petitioner by the VACB as per Ext.P8 letter would show that the Government had ordered vigilance enquiry on the complaint made by the petitioner. Even after the lapse of two years, the police officer concerned has not taken any decision on the complaint.
10. In Lalita Kumari (supra), the Constitution Bench of the Supreme Court had made the following conclusions/directions:
“In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if inform
