IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 9TH DAY OF NOVEMBER 2015/18TH KARTHIKA, 1937
OP(Crl.).No. 376 of 2015 (Q)
-----------------------------
AGAINST THE COMMON ORDER DATED 29/10/2015 IN VC.6/2014/SIU-I/TVPM &
CRL. MP.NOS.736/2015, 921/2015, 922/2015, 923/2015, 928/2015, 980/2015, 1061/2015,
1062/2015, 1135/2015, 1155/2015 & 877/2015 OF ENQUIRY COMMISSIONER &
SPECIAL JUDGE, THIRUVANANTHAPURAM.
......
PETITIONER(S):
--------------------------
THE VIGILANCE & ANTI CORRUPTION BUREAU,
DIRECTORATE, THIRUVANANTHAPURAM,
REPRESENTED BY ITS ADDITIONAL DIRECTOR
GENERAL OF POLICE DR.SHAIK DARVESH SHAHEB IPS.
BY SRI.K.P. DANDAPANI, ADVOCATE GENERAL
SRI.KABIL SIBAL, SENIOR ADVOCATE.
RESPONDENT(S):
----------------------------
1. NEYYATTINKARA P.NAGARAJ,
S/O.S.P.THYAGARAJAN, AYYAPPA NIVAS,
OPP.COURT COMPLEX, NEYYATTINKARA.
2. V. MURALEEDHARAN,
STATE PRESIDENT, BHARATHIYA JANATHA PARTY,
THIRUVANANTHAPURAM.
3. P. VISWANATHAN NAIR @ VAIKOM VISWAN,
CONVENER, LEFT DEMOCRATIC FRONT,
AKG NAGAR, THIRUVANANTHAPURAM.
4. SARA JOSEPH, CONVENER,
AAM ADMI PARTY KERALA, GITANJALI,
MULAMKUNNATHUKAVU, THRISSUR.
5. SUNNY MATHEW, S/O.MATHEW,
PALAKKATTUKUNNEL HOUSE,
ARAKKULAM P.O., IDUKKI.
6. V.S. SUNIL KUMAR, MEMBER,
KERALA LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM.
OP(Crl.).No. 376 of 2015 (Q)
7. VIJU A.R., ADVOCATE, THIRUVANANTHAPURAM.
8. V.S.ACHUTHANANDAN, LEADER OF THE OPPOSITION,
KERALA LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM.
9. BIJU RAMESH,
S/O.RAMESAN, SAMTHRIPTHI, EAST FORT,
THIRUVANANTHAPURAM.
10. NOBLE MATHEW,
S/O.LATE M.D. MATHEW, MANNAMPLACKAL HOUSE,
CHIRAKKADAVU P.O., KOTTAYAM.
11. ALL KERALA ANTI -CORRUPTION AND
HUMAN RIGHTS PROTECTION COUNCIL,
PALAKKAD.
12. K.M. MANI,
MINISTER FOR FINANCE, LAW & HOUSING,
THIRUVANANTHAPURAM.
R3 BY ADVS. SRI.K.K.RAVINDRANATH,
SRI.P.N.SUKUMARAN,
SRI.N.MANOJ KUMAR.
R4 BY ADV. SRI.AJITH JOY.
R5 BY SRI.P.VIJAYABHANU, SENIOR ADVOCATE.
R6 BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE.
ADV. SMT.P.R.REENA.
R8 BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE.
ADVS. SRI. T.B.HOOD,
SRI. MANU V.,
SMT.M.ISHA,
SRI.AMAL KASHA.
R10 BY ADV. SRI.NOBLE MATHEW (PARTY IN PERSON).
R11 BY ADVS. SRI.MANSOOR.B.H.,
SMT.NITHYA SASI.
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 09-11-2015, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
OP(Crl.).No. 376 of 2015 (Q)
APPENDIX
PETITIONER'S EXHIBITS:-
P1: TRUE COPY OF THE ORDER DATED 29.10.2015 OF THE VIGILANCE
COURT.
P2 TO P2 (E): TRUE COPIES OF THE NEWS ITEMS PUBLISHED IN VARIOUS
PRINT MEDIAS.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
[CR]
B. KEMAL PASHA, J.
................................................................
O.P.(Crl) No. 376 of 2015
...............................................................
Dated this the 9th day of November, 2015
J U D G M E N T
Sri. V.S. Achuthanandan, the 8th respondent herein,
filed a petition before the Director of Vigilance regarding the
disclosure made by the 9th respondent herein Sri.Biju
Ramesh in certain T.V. Channels that the 12th respondent
herein Sri.K.M. Mani, the Finance Minister, has demanded
5 crores as illegal gratification to facilitate the renewal of
Bar licence, and obtained 1 crore from the members of the
Kerala Bar Hotel Owners' Association during the period
between 20.03.2014 and 03.04.2014 and thereby, the 12th
respondent committed criminal misconduct.
2. As the 6th respondent Sri.V.S. Sunilkumar, MLA
O.P.(Crl.).376 of 2015
: 2 :
has felt that the matter was not being properly investigated
into, he approached this Court through W.P.(C)No.29856 of
2014 seeking the registration of a crime by the Vigilance
Department. The Writ Petition was disposed of by this Court
on 03.12.2014 with a direction to the Director of Vigilance to
take a decision for registering an FIR or not in accordance
with the provisions of the Code of Criminal Procedure and in
tune with the decision of the Apex Court in Lalitha Kumari
v. Government of U.P. And others (2014 (2) SCC 1)
rendered by the Constitution Bench.
3. It seems that even prior to the above direction of
this Court, the Director had, on 04.11.2014, ordered a quick
verification by the Dy.S.P. Vigilance and Anti-Corruption
Bureau, Southern Range, Thiruvananthapuram in the
matter. The said officer submitted a report on 06.11.2014
recommending a detailed investigation in the matter. The
report was forwarded to the Director. Consequently, the
Director, VACB, on scrutinising the quick verification report,
O.P.(Crl.).376 of 2015
: 3 :
directed the Superintendent of Police, Vigilance and Anti-
Corruption Bureau(SIU-1) to register a vigilance case for the
offences under Sections 7 and 13(1)(d) of the Prevention of
Corruption Act and to conduct an investigation.
4. The investigating officer conducted an
investigation and prepared a factual report. At first, he
submitted the factual report before the Additional Legal
Adviser, Vigilance Department. The Legal Adviser, after a
scrutiny, furnished an opinion that there was no evidence for
demand and, therefore, the offences would not lie.
Thereafter, the file was forwarded to the Additional Director
General of Police, Vigilance and Anti-Corruption Bureau.
The Additional Director General of Police, Vigilance in
writing, asked the investigating officer as to whether there
was any evidence for demand by the accused. Precisely, a
reply was furnished by the investigating officer that "there
were no direct/oral/recordical evidence to indicate any
demand from the part of the accused." The Additional
O.P.(Crl.).376 of 2015
: 4 :
Director General of Police, Vigilance concluded that there
was no material available to prosecute the accused since no
offence was made out. With such a scrutiny report, the
matter was placed before the Director, Vigilance and Anti-
Corruption Bureau, which according to the petitioner, is a
normal procedure in the Vigilance Department, in
accordance with the Vigilance Manual.
5. The Director General of Vigilance and Anti-
Corruption Bureau, thereafter, approached the Attorney
General of India as well as the Solicitor General of India
seeking legal advice in the matter. Having responded
negatively in giving the legal advice, ultimately, the Director
of Vigilance obtained legal advice from two designated
Senior Advocates of the Supreme Court, who were former
Solicitors General of India. Based on the said legal
opinions, the Director, VACB, has taken the view that there
was no sufficient material to prove the ingredients of
Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention
O.P.(Crl.).376 of 2015
: 5 :
of Corruption Act, 1980. He gave a direction to the
investigating officer in the following lines:
"From the documentary, oral and
circumstantial materials presented in the factual
report by the investigating officer, I am of the
opinion that there is no sufficient material to
prove the ingredients of S.7, S.13(1)(d) r/w
S.13(2) of P.C. Act, 1988. Hence the
investigating officer is directed to file the final
report before the court after considering the
foregoing discussions."
6. Through the covering letter of the scrutiny report,
the investigating officer was further directed,
"The scrutiny report on the factual report in V.C.
6/14/SIU/1 is forwarded herein for further
necessary action and report compliance".
Based on the aforesaid directions, the investigating officer
prepared a final report stating that there would be no
successful prosecution against the accused, thereby
seeking to get the proceedings dropped.
O.P.(Crl.).376 of 2015
: 6 :
7. In substance, a refer report was filed to that
effect. The court below on getting the refer report as
aforesaid, has come down heavily on the Director of
Vigilance by criticising that the directions issued by the
Director of Vigilance has intruded into the arena of the
investigation. The court below further observed that the
Director of Vigilance through the said directions, has
substituted the opinion of the investigating officer with his
opinion. The court below, through the impugned order, has
chosen to direct the investigating officer to conduct a further
investigation in the matter, under Section 173(8) Cr.P.C.
8. The present Original Petition(Crl.) is filed by the
Vigilance and Anti-Corruption Bureau through its Additional
Director General of Police, Dr. Shaik Darvesh Shaheb, IPS.
9. Heard the learned Advocate General Sri. K.P
Dandapani, learned Senior Advocate Sri. Kapil Sibal,
learned Senior Counsel Sri. K. Gopalakrishna Kurup,
learned Senior Counsel Sri. Ranjith Thampan, learned
O.P.(Crl.).376 of 2015
: 7 :
Senior Counsel Sri. P. Vijayabhanu, learned counsel
Sri.K.K.Ravindranath, Sri.Ajith Joy, Sri.Mansoor B.H., and
Adv.Noble Mathew in extenso, on the legal questions
involved. There is no dispute with regard to the facts
regarding the investigation noted in the impugned order.
10. The first point raised by the learned Advocate
General is that the factual report does not form part of the
case diary, and consequently, the scrutiny report also does
not form part of the case diary. The argument is that,
therefore, the court below ought not to have called for the
factual report or the scrutiny report for passing the
impugned order.
11. Section 172(1) Cr.P.C. deals with the diary
proceedings in investigation which reads as follows:
"(1) Every police officer making an
investigation under this Chapter shall day by
day enter his proceedings in the investigation
in a diary, setting forth the time at which the
information reached him, the time at which he
O.P.(Crl.).376 of 2015
: 8 :
began and closed his investigation, the place
or places visited by him, and a statement of
the circumstances ascertained through his
investigation." (emphasis supplied)
12. When the said provision shows that the case
diary proceedings includes the statement of the
circumstances ascertained by the investigating officer
through his investigation, the factual report falls within the
contents of the case diary, under Section 172(1) Cr.P.C. In
the light of the said statutory provision, this Court is of the
view that the same is no more open to further challenge.
13. Section 172(2) Cr.P.C. says:
"(2) Any Criminal Court may send for the
police diaries of a case under inquiry or trial in
such Court, and may use such diaries, not as
evidence in the case, but to aid it in such
inquiry or trial."
14. There is no quarrel with the said proposition that
the stage at which the court below is dealing with the matter
of final report was 'inquiry'. 'Inquiry' is defined under Section
O.P.(Crl.).376 of 2015
: 9 :
2(g) of Cr.P.C. as:
"2(g) : "Inquiry" means every inquiry,
other than a trial, conducted under this Code
by a Magistrate or Court."
15. When a final report is filed before the court below,
it seems that, that was the end of the investigation.
Investigation culminates, and the trial begins on the framing
of charges. Therefore, till that time, from the filing of the
final report onwards, the proceedings before the court below
is 'inquiry' within the meaning of Section 2(g) Cr.P.C.
Matters being so, the court below has got ample power
under Section 172(2) Cr.P.C. to call for the case diary as
such for a perusal; not as evidence in the case, but to aid in
such inquiry. In such case, the court below cannot be found
fault with in perusing the factual report or the scrutiny
report, which forms part of the case diary.
16. The court below can assess the investigation and
look into the case diary to note down whether there is any
O.P.(Crl.).376 of 2015
: 10 :
factual error in the factual report regarding the materials
collected in the investigation conducted by the investigating
officer. To that extent, the court below has the liberty to
peruse the case diary.
17. The next point is with regard to the powers
conferred on the Director of Vigilance and Anti-Corruption
Bureau through paragraph 72 of the Vigilance Manual.
Paragraph 72(1) says:
"72(1) After completion of the
investigation a report giving the facts,
evidence and circumstances in each case
(both for and against the prosecution) shall be
forwarded by the Deputy Superintendent of
Police to the Superintendent of Police
concerned, who will forward the same along
with his Forwarding Endorsement to the
Director, through the IGP/DIP of Police
concerned for further transmission to
Government(in cases personally investigated
by the Superintendent of Police or other
senior officers, the Factual Report will be
O.P.(Crl.).376 of 2015
: 11 :
prepared by them. The final decision on a
Factual Report either to prosecute an accused
subject him/them to an enquiry by Vigilance
Tribunal or otherwise will be taken at the
Directorate after assessing the quality and
quantum of evidence."
"72(2). The factual Reports, after
examination and approval by the Director,
shall be forwarded by him to the Government
in the Vigilance Department. Where the
decision in the case is for prosecution the
Director shall forward along with it, copies of
FIR, statement of witnesses, mahazars and all
other connected documents relied upon for
the proposed prosecution as well as the
opinion of the LA/ALAs. to the Sanctioning
Authority."
18. The learned Advocate General as well as the
learned Senior Counsel Sri.Kapil Sibal have pointed out that
the investigation of vigilance cases as well as CBI cases is
on a separate footing, than the investigation in a normal
case. Certain powers are conferred on the Director of CBI
O.P.(Crl.).376 of 2015
: 12 :
as well as the Director of Vigilance to deal with the matters
during investigation. The learned Senior Counsel
Sri.Vijayabhanu also supports the said view. The other
learned Senior Counsel as well as the other counsel for
other parties have vehemently opposed the said argument,
and by relying on Lalitha Kumari(supra) argued that the
CBI manual has no force of law as it is not a statute enacted
by the legislature. It has to be noted that the Government
have approved Vigilance and Anti Corruption Bureau Manual
as per G.O(Rt.)No.4/2002/dated 03.01.2002. So, it is
evident that through the Government Order, the Government
has approved the Vigilance Manual as such. On going
through the catena of decisions on the point, this Court is of
the view that the Vigilance Manual holds good in the field of
investigation, provided those provisions are not contrary to
the provisions contained in the Cr.P.C. Paragraph 59(ii) of
the Vigilance Manual says that 'the vigilance case should be
registered within 10 days on getting orders to that effect
O.P.(Crl.).376 of 2015
: 13 :
from the Directorate'. Therefore, the Directorate is given
power, precisely the Director is given power, to order
registration of the Vigilance case. If that provision is not
contrary to the provisions of the Cr.P.C., it would hold good.
19. Section 158(1) Cr.P.C. says:
" Report how submitted - (1) Every
report sent to a Magistrate under section 157
shall, if the State Government so directs, be
submitted through such superior officer of
police as the State Government, by general or
special order, appoints in that behalf."
20. When the Government, by general or special
order, is appointing a superior officer of police under Section
158(1) Cr.P.C., there cannot be a quarrel with regard to the
legality of the proposition contained in paragraph 59(ii) of
the Vigilance Manual. It is evident that by general order, the
State Government has appointed the Director of Vigilance
being a Superior Police Officer, to order the registration of a
vigilance case. It is not contrary to the similar power
O.P.(Crl.).376 of 2015
: 14 :
conferred under Section 158(1) Cr.P.C. Therefore, paragraph
59(ii) of the Vigilance Manual is not contrary to the power
conferred on the Superior Police Officer under Section 158
(1) Cr.P.C.
21. In such case, what is the power of the Director of
Vigilance, and whether he has an unbridled power in all
matters concerning the investigation and the filing of final
report in the case, are the next questions to be decided.
22. As per Section 158(2) Cr.P.C.,
"Such superior officer may give such
instructions to the officer in charge of the police
station as he thinks fit, and shall, after
recording such instructions on such report,
transmit the same without delay to the
Magistrate."
23. On going through the wordings of Section 158(2)
Cr.P.C., it is evident that 'such report' mentioned in Section
158(2) Cr.P.C. does not take in the 'final report'. At the same
O.P.(Crl.).376 of 2015
: 15 :
time, till the filing of the final report, the said Superior Police
Officer shall have every power to give instructions to the
officer in charge of the Police Station, as he thinks fit, under
Section 158(2) Cr.P.C. Such a power is available to the
Director of Vigilance also.
24. In this case, what has been done is that certain
specific directions were given by the Director of Vigilance to
the investigating officer, as reproduced above. Whether
those instructions were given by him during the course of
investigation or not, is the next question. What was
submitted before the Director by the investigating officer in
this case, is a factual report and not a final report. A factual
report is one being filed in the course of investigation as the
investigation culminates on the filing of the final report only.
Therefore, the factual report does not take in a report under
Section 173 Cr.P.C. A report under Section 173(2) Cr.P.C.
alone is the final report. Matters being so, it cannot be said
that the Director had no power at all to issue specific
O.P.(Crl.).376 of 2015
: 16 :
directions to the investigating officer to the way in which the
investigation has to be conducted. At the same time, it has
to be examined whether the Director of Vigilance has
unbridled power to direct the investigating officer to file a
final report in a particular manner.
25. In Lalitha Kumari (supra), it was held:
"Besides, the learned Senior Counsel
relied on the special procedures prescribed
under the CBI Manual to be read into Section
154. It is true that the concept of "preliminary
inquiry" is contained in Chapter IX of the Crime
Manual of CBI. However, this Crime Manual is
not a statute and has not been enacted by the
legislature. It is a set of administrative orders
issued for internal guidance of the CBI officers.
It cannot supersede the Code. Moreover, in the
absence of any indication to the contrary in the
Code itself, the provisions of the CBI Crime
Manual cannot be relied upon to import the
concept of holding of preliminary inquiry in the
scheme of the Code of Criminal Procedure. At
this juncture, it is also pertinent to submit that
O.P.(Crl.).376 of 2015
: 17 :
CBI is constituted under a special Act, namely,
the Delhi Special Police Establishment Act,
1946 and it derives its power to investigate from
this Act."
26. In paragraph 120.6 of Lalitha Kumari (supra), it
was held:
"As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which
preliminary inquiry may be made are as under:
a. Matrimonial disputes/family disputes
b. Commercial offences
c. Medical negligence cases
d. Corruption cases
e. Cases where there is abnormal
delay/laches in initiating criminal prosecution,
for example, over 3 months' delay in reporting
the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry."
O.P.(Crl.).376 of 2015
: 18 :
It was categorically held by the Constitution Bench that the
provisions of the CBI Manual overrides the provisions of the
Code of Criminal Procedure.
27. Section 173(3) Cr.P.C. reads as follows:-
"Where a superior officer of police has
been appointed under section 158, the report,
shall, in any case in which the State
Government by general or special order so
directs, be submitted through that officer, and
he may, pending the orders of the Magistrate,
direct the officer in charge of the police station
to make further investigation."
28. Apart from the power under Section 173(3)
Cr.P.C. as well as Section 158(2) Cr.P.C., no further power
has been granted by the Cr.P.C. to the superior officer, who
has been appointed under Section 158 Cr.P.C. It has to be
noted that the report contemplated under Section 173(3)
Cr.P.C. is necessarily the final report. In case of general or
special order by the State Government to that effect, such
Superior Police Officer appointed under Section 158(1)
O.P.(Crl.).376 of 2015
: 19 :
Cr.P.C. has got the power to scrutinize the final report in the
case, and pending orders by the Magistrate on such final
report, he can order a further investigation in the matter.
29. It seems that here in this particular case, the
Director of Vigilance has gone to the extent of directing the
investigating officer to submit a final report in tune with the
scrutiny report furnished by him. In such case, this Court is
of the view that there is no conflict with regard to the power
conferred on the Director of Vigilance as per Section 72(1)
of the Vigilance Manual and powers of such superior officer
under Section 173(3) Cr.P.C. It seems that the Director of
Vigilance has not exercised his powers in this case under
Section 173(3) Cr.P.C., as he has not gone through the final
report in the matter and as he has not ordered a further
investigation in the matter under Section 173(3) Cr.P.C.
30. It seems that in the matter of investigation made
by the investigating officer, the scrutiny report was furnished
by the Director of Vigilance on considering the materials
O.P.(Crl.).376 of 2015
: 20 :
contained in the factual report in the light of the materials
collected by the investigating officer during investigation.
The Director of Vigilance has no occasion to see the
demeanour of any of the witnesses examined by the
investigating officer. One cannot say that, even through a
threadbare examination, the Director of Vigilance, may be
able to scrutinize all the materials collected by the
investigating officer word by word. When he has obtained
legal opinion that there was no evidence of any demand and
therefore, no ingredients are there to bring out the offences
under Section 7 or 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, instead of directing the
investigating officer to file a final report in tune with the
scrutiny report, the Director of Vigilance ought to have
exercised his powers under Section 173(3) Cr.P.C. In all
probability, this Court is of the view that the Director of
Vigilance ought to have exercised his powers under Section
173(3) Cr.P.C. by ordering a further investigation in the
O.P.(Crl.).376 of 2015
: 21 :
matter concerning the demand and all like that.
31. Therefore, the criticism that the Director of
Vigilance has, in fact, attempted to substitute the opinion of
the investigating officer to be formed in the final report, with
his opinion, cannot be said to be not correct. The court
below has discussed the materials collected by the
investigating officer from the witnesses, in detail. This Court
is not stating anything regarding the merits or otherwise of
the materials collected by the investigating officer. At the
same time, it has to be noted that the Director of Vigilance
had also entertained a doubt whether the offences would lie
or not and that was why he had opted to get the legal
opinions from two designated Senior Advocates of the
Supreme Court of India in the matter. He was guided by
those legal opinions. Whether at that stage, the Director of
Vigilance was justified in taking a decision on the merits of
the evidence relating to the offences, is a question that has
to be considered at present.
O.P.(Crl.).376 of 2015
: 22 :
32. In M.C. Mehta v. Union of India and others
(2007 (1) SCC 110), it was held in paragraph 22 as follows:
" In Union of India v. Sushil Kumar Modi
investigation was entrusted to CBI in the
Fodder Scam case by the High Court to ensure
proper and honest performance of duty by CBI.
This Court directed CBI officers to inform the
Chief Justice of the Patna High Court about the
progress of the investigation and to obtain his
directions if so required for conducting the
investigation. The Joint Director of CBI
submitted his report on the investigation carried
out by him to the Chief Justice of the High
Court. The High Court found that the Director
was trying to interfere with the investigation
and, therefore, the High Court directed that all
reports of the CBI officers shall be submitted
directly to the Court without being forwarded to
the Director, CBI. This order of the High Court
was challenged. It was held that the Director,
CBI was responsible and accountable for the
proper investigation of the case and, therefore,
he cannot be excluded from the investigation.
O.P.(Crl.).376 of 2015
: 23 :
It was, however, observed that the Director, CBI
was duty bound to make a fair, honest and
complete investigation and officers associated
with the investigation have to function as
members of a cohesive team engaged in
common pursuit of such an investigation so as
to uphold the majesty of the law and preserve
the rule of law. It was held that, in case of any
difference of opinion between officers of CBI in
respect of the investigation, final decision
would not be taken by the Director himself or
by the Director merely on the opinion of the
Legal Department of CBI, but the matter would
be decided according to the opinion of the
Attorney General for India for the purpose of
investigation and filing of the charge-sheet
against any such individual. In that event, the
opinion would be sought from the Attorney
General after making available to him the
opinions expressed on the subject by the
persons associated with the investigation as a
part of the materials. We quote hereinbelow
paras 13 and 14 of the said judgment: (SCC
pp.505-06)
O.P.(Crl.).376 of 2015
: 24 :
"13.We make it clear that in case of any difference
of opinion between the officers of the CBI in relation to the
implication of any individual in the crimes or any other
matter relating to the investigation, the final decision in the
matter would not be taken by the Director, CBI, himself or
by him merely on the opinion of the Legal Department of
the CBI; and in such a situation, the matter would be
determined according to the opinion of the Attorney
General for India for the purpose of the investigation and
filing of the charge-sheet against any such individual. In
that event, the opinion would be sought from the Attorney
General after making available to him all the opinions
expressed on the subject by the persons associated with
the investigation as a part of the materials.
14. It appears necessary to add that the Court, in
this proceeding, is concerned with ensuring proper and
honest performance of its duty by the CBI and not the
merits of the accusations being investigated, which are to
be determined at the trial on the filing of the charge-sheet
in the competent court, according to the ordinary
procedure prescribed by law. Care must, therefore, be
taken by the High Court to avoid making any observation
which may be construed as the expression of its opinion
on merits relating to the accusation against any individual.
Any such observation made on the merits of the
accusation so far by the High Court, including those in
para 8 of the impugned order are not to be treated as final,
or having the approval of this Court. Such observations
should not, in any manner influence the decision on merits
at the trial on the filing of the charge-sheet. The directions
given by this Court in its aforesaid order dated 19.3.1996
have to be understood in this manner by all concerned,
including the high Court." "
33. The crux of the matter is whether the Director of
Vigilance was justified in making a threadbare examination
of the offences alleged against the accused at the stage
prior to the stage of Section 173(2) Cr.P.C.? As I have
O.P.(Crl.).376 of 2015
: 25 :
already pointed out, the Director of Vigilance has not gone
through the final report in the matter as he has directed the
investigating officer to file a final report in line with the
scrutiny report and report compliance. In such case, even
the stage under Section 173(2) Cr.P.C. was not there. Even
at the stage of Section 173(2) Cr.P.C., even the court cannot
consider whether there are materials to invite a conviction or
not. What is contemplated at the stage of Section 173(2)
Cr.P.C. is discernible from Section 169 Cr.P.C. as well as
Section 170 Cr.P.C.
34. As per Section 169 Cr.P.C., if there is no sufficient
evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, the investigating
officer has to order the release of the accused. As per
Section 170(1) Cr.P.C., if there is sufficient evidence or
reasonable ground as aforesaid, then, the Magistrate has to
take cognizance of the offence upon a police report and try
the accused as per the provisions of the Code. Therefore,
O.P.(Crl.).376 of 2015
: 26 :
what is contemplated under the Code at the stage of
Section 169 Cr.P.C. as well as Section 173(2) Cr.P.C. is
whether there is sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a
Magistrate. So, if there is even a reasonable ground of
suspicion to justify the forwarding of the accused to a
Magistrate, the investigating officer is bound to file a final
report under Section 173(2) Cr.P.C. to that effect. If the court
is satisfied that there are reasonable grounds to forward the
accused for trial, the court has to take cognizance of the
offences.
35. In this particular case, it cannot be said that the
Director of Vigilance was fully satisfied that there are no
reasonable grounds of suspicion to justify the forwarding of
the accused for trial. On the contrary, it seems that based
on the legal opinion received by him, he had acted
mechanically by holding that there are no grounds to bring
out the offences under Sections 7 and 13(1)(d) read with
O.P.(Crl.).376 of 2015
: 27 :
Section 13(2) of the P.C. Act.
36. It seems that the court below has, in fact,
criticised the Director of Vigilance in seeking legal opinion
from outside. At the same time, the learned Advocate
General has explained that the accused, being the Law
Minister of the State, the Advocate General himself had
advised the Director of Vigilance to seek opinion from
outside.
37. In Sarala Vs. Velu [AIR 2000 SC 1731], the Apex
Court has held that-
"The question here is not simply whether
an investigating officer, on his own volition or
on his own initiative, can discuss with the
Public Prosecutor or any legal talent, for the
purpose of forming his opinion as to the report
to be laid in the court. Had that been the
question involved in this case it would be
unnecessary to vex our mind because it is
always open to any officer, including any
investigating officer, to get the best legal
O.P.(Crl.).376 of 2015
: 28 :
opinion on any legal aspect concerning the
preparation of any report. But the real
question is, should the High Court direct the
investigating officer to take opinion of the
Public Prosecutor for filing the charge sheet?"
38. The Director of Vigilance cannot be found fault
with in his obtaining the legal opinion from legal expert or
experts. There is nothing wrong in it. When the Advocate
General of the State has also advised him to have such a
recourse, the same cannot be found fault with. At the same
time, it has to be considered whether at that particular stage,
in order to consider whether there was reasonable ground to
justify the forwarding of the accused to the court, any such
legal opinion was required or not.
39. I am reminded of the Shakespearian saying that
'Caesar's wife must be above suspicion'. The fundamental
principle that justice is not only done but it should appear
that it is done, is applicable not to the judiciary alone;
whereas, it is equally applicable to the other two pillars of
O.P.(Crl.).376 of 2015
: 29 :
the State also. In a case like this, it is quite natural that the
common man may entertain a feeling that there cannot be a
proper investigation by a State Machinery when the
accused, against whom fingers are pointed out, is
continuing as a Minister. I have noted an instance wherein
even the learned Advocate General had to be bypassed by
the Director of Vigilance to obtain a legal opinion from
outside. Of course, I am not finding fault with the Director of
Vigilance on that score. I have gone through Ground K in
the Original Petition, which says:-
"The opinion of the Advocate General of
the State or any Law Officer under him was
not attempted, since the accused is also the
Law Minister of the State and the Director
made an honest attempt to get the best
opinion from other experts on the issue."
Whether the common man should pay for that also? I am
not making any further comments on it, as this Court is not
invited to answer such questions. I am leaving that question
O.P.(Crl.).376 of 2015
: 30 :
to the conscience of the accused!
40. The main complaint forwarded by the learned
Senior Counsel Sri.Kapil Sibal is that the court below has
unnecessarily gone into the details of the materials collected
by the investigating officer and has virtually entered some
findings with regard to demand and acceptance etc.
According to him, those observations were not at all
warranted for exercising the powers conferred on the court
below within the meaning of Section 173(8) Cr.P.C. On
going through the matter, it seems that some how in his
anxiety to justify the taking cognizance of the offence or of
ordering a further investigation, the court below has made
those observations in detail. The court below could have
avoided those observations. It is made clear that those
observations made by the court below shall not have the
effect of any finding entered by the court below on merits or
any direction issued by the court below. Such observations
made by the court below shall not prejudice the accused in
O.P.(Crl.).376 of 2015
: 31 :
any manner in the continued investigation or a trial, in case
it is necessitated.
In the result, this Original Petition is disposed of with
the aforesaid directions. The observations made by the
court below against the Director of Vigilance that he has no
power to give timely directions to the investigating officer,
are expunged. It is made clear that the Director of Vigilance
has got sufficient power and authority by exercising his
powers under paragraph 72(1) of the Vigilance Manual read
with Section 158(2) Cr.P.C., to give timely directions in the
matter of investigation, and not after that. The Director of
Vigilance ought to have exercised the powers under Section
173(3) Cr.P.C. in this case, in the absence of which, the
court below is perfectly justified in ordering a further
investigation under Section 173(8) Cr.P.C.
Sd/-
B. KEMAL PASHA, JUDGE
ul/aks/09.11.2015
// True Copy //
PA to Judge
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 9TH DAY OF NOVEMBER 2015/18TH KARTHIKA, 1937
OP(Crl.).No. 376 of 2015 (Q)
-----------------------------
AGAINST THE COMMON ORDER DATED 29/10/2015 IN VC.6/2014/SIU-I/TVPM &
CRL. MP.NOS.736/2015, 921/2015, 922/2015, 923/2015, 928/2015, 980/2015, 1061/2015,
1062/2015, 1135/2015, 1155/2015 & 877/2015 OF ENQUIRY COMMISSIONER &
SPECIAL JUDGE, THIRUVANANTHAPURAM.
......
PETITIONER(S):
--------------------------
THE VIGILANCE & ANTI CORRUPTION BUREAU,
DIRECTORATE, THIRUVANANTHAPURAM,
REPRESENTED BY ITS ADDITIONAL DIRECTOR
GENERAL OF POLICE DR.SHAIK DARVESH SHAHEB IPS.
BY SRI.K.P. DANDAPANI, ADVOCATE GENERAL
SRI.KABIL SIBAL, SENIOR ADVOCATE.
RESPONDENT(S):
----------------------------
1. NEYYATTINKARA P.NAGARAJ,
S/O.S.P.THYAGARAJAN, AYYAPPA NIVAS,
OPP.COURT COMPLEX, NEYYATTINKARA.
2. V. MURALEEDHARAN,
STATE PRESIDENT, BHARATHIYA JANATHA PARTY,
THIRUVANANTHAPURAM.
3. P. VISWANATHAN NAIR @ VAIKOM VISWAN,
CONVENER, LEFT DEMOCRATIC FRONT,
AKG NAGAR, THIRUVANANTHAPURAM.
4. SARA JOSEPH, CONVENER,
AAM ADMI PARTY KERALA, GITANJALI,
MULAMKUNNATHUKAVU, THRISSUR.
5. SUNNY MATHEW, S/O.MATHEW,
PALAKKATTUKUNNEL HOUSE,
ARAKKULAM P.O., IDUKKI.
6. V.S. SUNIL KUMAR, MEMBER,
KERALA LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM.
OP(Crl.).No. 376 of 2015 (Q)
7. VIJU A.R., ADVOCATE, THIRUVANANTHAPURAM.
8. V.S.ACHUTHANANDAN, LEADER OF THE OPPOSITION,
KERALA LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM.
9. BIJU RAMESH,
S/O.RAMESAN, SAMTHRIPTHI, EAST FORT,
THIRUVANANTHAPURAM.
10. NOBLE MATHEW,
S/O.LATE M.D. MATHEW, MANNAMPLACKAL HOUSE,
CHIRAKKADAVU P.O., KOTTAYAM.
11. ALL KERALA ANTI -CORRUPTION AND
HUMAN RIGHTS PROTECTION COUNCIL,
PALAKKAD.
12. K.M. MANI,
MINISTER FOR FINANCE, LAW & HOUSING,
THIRUVANANTHAPURAM.
R3 BY ADVS. SRI.K.K.RAVINDRANATH,
SRI.P.N.SUKUMARAN,
SRI.N.MANOJ KUMAR.
R4 BY ADV. SRI.AJITH JOY.
R5 BY SRI.P.VIJAYABHANU, SENIOR ADVOCATE.
R6 BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE.
ADV. SMT.P.R.REENA.
R8 BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE.
ADVS. SRI. T.B.HOOD,
SRI. MANU V.,
SMT.M.ISHA,
SRI.AMAL KASHA.
R10 BY ADV. SRI.NOBLE MATHEW (PARTY IN PERSON).
R11 BY ADVS. SRI.MANSOOR.B.H.,
SMT.NITHYA SASI.
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 09-11-2015, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
OP(Crl.).No. 376 of 2015 (Q)
APPENDIX
PETITIONER'S EXHIBITS:-
P1: TRUE COPY OF THE ORDER DATED 29.10.2015 OF THE VIGILANCE
COURT.
P2 TO P2 (E): TRUE COPIES OF THE NEWS ITEMS PUBLISHED IN VARIOUS
PRINT MEDIAS.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
[CR]
B. KEMAL PASHA, J.
................................................................
O.P.(Crl) No. 376 of 2015
...............................................................
Dated this the 9th day of November, 2015
J U D G M E N T
Sri. V.S. Achuthanandan, the 8th respondent herein,
filed a petition before the Director of Vigilance regarding the
disclosure made by the 9th respondent herein Sri.Biju
Ramesh in certain T.V. Channels that the 12th respondent
herein Sri.K.M. Mani, the Finance Minister, has demanded
5 crores as illegal gratification to facilitate the renewal of
Bar licence, and obtained 1 crore from the members of the
Kerala Bar Hotel Owners' Association during the period
between 20.03.2014 and 03.04.2014 and thereby, the 12th
respondent committed criminal misconduct.
2. As the 6th respondent Sri.V.S. Sunilkumar, MLA
O.P.(Crl.).376 of 2015
: 2 :
has felt that the matter was not being properly investigated
into, he approached this Court through W.P.(C)No.29856 of
2014 seeking the registration of a crime by the Vigilance
Department. The Writ Petition was disposed of by this Court
on 03.12.2014 with a direction to the Director of Vigilance to
take a decision for registering an FIR or not in accordance
with the provisions of the Code of Criminal Procedure and in
tune with the decision of the Apex Court in Lalitha Kumari
v. Government of U.P. And others (2014 (2) SCC 1)
rendered by the Constitution Bench.
3. It seems that even prior to the above direction of
this Court, the Director had, on 04.11.2014, ordered a quick
verification by the Dy.S.P. Vigilance and Anti-Corruption
Bureau, Southern Range, Thiruvananthapuram in the
matter. The said officer submitted a report on 06.11.2014
recommending a detailed investigation in the matter. The
report was forwarded to the Director. Consequently, the
Director, VACB, on scrutinising the quick verification report,
O.P.(Crl.).376 of 2015
: 3 :
directed the Superintendent of Police, Vigilance and Anti-
Corruption Bureau(SIU-1) to register a vigilance case for the
offences under Sections 7 and 13(1)(d) of the Prevention of
Corruption Act and to conduct an investigation.
4. The investigating officer conducted an
investigation and prepared a factual report. At first, he
submitted the factual report before the Additional Legal
Adviser, Vigilance Department. The Legal Adviser, after a
scrutiny, furnished an opinion that there was no evidence for
demand and, therefore, the offences would not lie.
Thereafter, the file was forwarded to the Additional Director
General of Police, Vigilance and Anti-Corruption Bureau.
The Additional Director General of Police, Vigilance in
writing, asked the investigating officer as to whether there
was any evidence for demand by the accused. Precisely, a
reply was furnished by the investigating officer that "there
were no direct/oral/recordical evidence to indicate any
demand from the part of the accused." The Additional
O.P.(Crl.).376 of 2015
: 4 :
Director General of Police, Vigilance concluded that there
was no material available to prosecute the accused since no
offence was made out. With such a scrutiny report, the
matter was placed before the Director, Vigilance and Anti-
Corruption Bureau, which according to the petitioner, is a
normal procedure in the Vigilance Department, in
accordance with the Vigilance Manual.
5. The Director General of Vigilance and Anti-
Corruption Bureau, thereafter, approached the Attorney
General of India as well as the Solicitor General of India
seeking legal advice in the matter. Having responded
negatively in giving the legal advice, ultimately, the Director
of Vigilance obtained legal advice from two designated
Senior Advocates of the Supreme Court, who were former
Solicitors General of India. Based on the said legal
opinions, the Director, VACB, has taken the view that there
was no sufficient material to prove the ingredients of
Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention
O.P.(Crl.).376 of 2015
: 5 :
of Corruption Act, 1980. He gave a direction to the
investigating officer in the following lines:
"From the documentary, oral and
circumstantial materials presented in the factual
report by the investigating officer, I am of the
opinion that there is no sufficient material to
prove the ingredients of S.7, S.13(1)(d) r/w
S.13(2) of P.C. Act, 1988. Hence the
investigating officer is directed to file the final
report before the court after considering the
foregoing discussions."
6. Through the covering letter of the scrutiny report,
the investigating officer was further directed,
"The scrutiny report on the factual report in V.C.
6/14/SIU/1 is forwarded herein for further
necessary action and report compliance".
Based on the aforesaid directions, the investigating officer
prepared a final report stating that there would be no
successful prosecution against the accused, thereby
seeking to get the proceedings dropped.
O.P.(Crl.).376 of 2015
: 6 :
7. In substance, a refer report was filed to that
effect. The court below on getting the refer report as
aforesaid, has come down heavily on the Director of
Vigilance by criticising that the directions issued by the
Director of Vigilance has intruded into the arena of the
investigation. The court below further observed that the
Director of Vigilance through the said directions, has
substituted the opinion of the investigating officer with his
opinion. The court below, through the impugned order, has
chosen to direct the investigating officer to conduct a further
investigation in the matter, under Section 173(8) Cr.P.C.
8. The present Original Petition(Crl.) is filed by the
Vigilance and Anti-Corruption Bureau through its Additional
Director General of Police, Dr. Shaik Darvesh Shaheb, IPS.
9. Heard the learned Advocate General Sri. K.P
Dandapani, learned Senior Advocate Sri. Kapil Sibal,
learned Senior Counsel Sri. K. Gopalakrishna Kurup,
learned Senior Counsel Sri. Ranjith Thampan, learned
O.P.(Crl.).376 of 2015
: 7 :
Senior Counsel Sri. P. Vijayabhanu, learned counsel
Sri.K.K.Ravindranath, Sri.Ajith Joy, Sri.Mansoor B.H., and
Adv.Noble Mathew in extenso, on the legal questions
involved. There is no dispute with regard to the facts
regarding the investigation noted in the impugned order.
10. The first point raised by the learned Advocate
General is that the factual report does not form part of the
case diary, and consequently, the scrutiny report also does
not form part of the case diary. The argument is that,
therefore, the court below ought not to have called for the
factual report or the scrutiny report for passing the
impugned order.
11. Section 172(1) Cr.P.C. deals with the diary
proceedings in investigation which reads as follows:
"(1) Every police officer making an
investigation under this Chapter shall day by
day enter his proceedings in the investigation
in a diary, setting forth the time at which the
information reached him, the time at which he
O.P.(Crl.).376 of 2015
: 8 :
began and closed his investigation, the place
or places visited by him, and a statement of
the circumstances ascertained through his
investigation." (emphasis supplied)
12. When the said provision shows that the case
diary proceedings includes the statement of the
circumstances ascertained by the investigating officer
through his investigation, the factual report falls within the
contents of the case diary, under Section 172(1) Cr.P.C. In
the light of the said statutory provision, this Court is of the
view that the same is no more open to further challenge.
13. Section 172(2) Cr.P.C. says:
"(2) Any Criminal Court may send for the
police diaries of a case under inquiry or trial in
such Court, and may use such diaries, not as
evidence in the case, but to aid it in such
inquiry or trial."
14. There is no quarrel with the said proposition that
the stage at which the court below is dealing with the matter
of final report was 'inquiry'. 'Inquiry' is defined under Section
O.P.(Crl.).376 of 2015
: 9 :
2(g) of Cr.P.C. as:
"2(g) : "Inquiry" means every inquiry,
other than a trial, conducted under this Code
by a Magistrate or Court."
15. When a final report is filed before the court below,
it seems that, that was the end of the investigation.
Investigation culminates, and the trial begins on the framing
of charges. Therefore, till that time, from the filing of the
final report onwards, the proceedings before the court below
is 'inquiry' within the meaning of Section 2(g) Cr.P.C.
Matters being so, the court below has got ample power
under Section 172(2) Cr.P.C. to call for the case diary as
such for a perusal; not as evidence in the case, but to aid in
such inquiry. In such case, the court below cannot be found
fault with in perusing the factual report or the scrutiny
report, which forms part of the case diary.
16. The court below can assess the investigation and
look into the case diary to note down whether there is any
O.P.(Crl.).376 of 2015
: 10 :
factual error in the factual report regarding the materials
collected in the investigation conducted by the investigating
officer. To that extent, the court below has the liberty to
peruse the case diary.
17. The next point is with regard to the powers
conferred on the Director of Vigilance and Anti-Corruption
Bureau through paragraph 72 of the Vigilance Manual.
Paragraph 72(1) says:
"72(1) After completion of the
investigation a report giving the facts,
evidence and circumstances in each case
(both for and against the prosecution) shall be
forwarded by the Deputy Superintendent of
Police to the Superintendent of Police
concerned, who will forward the same along
with his Forwarding Endorsement to the
Director, through the IGP/DIP of Police
concerned for further transmission to
Government(in cases personally investigated
by the Superintendent of Police or other
senior officers, the Factual Report will be
O.P.(Crl.).376 of 2015
: 11 :
prepared by them. The final decision on a
Factual Report either to prosecute an accused
subject him/them to an enquiry by Vigilance
Tribunal or otherwise will be taken at the
Directorate after assessing the quality and
quantum of evidence."
"72(2). The factual Reports, after
examination and approval by the Director,
shall be forwarded by him to the Government
in the Vigilance Department. Where the
decision in the case is for prosecution the
Director shall forward along with it, copies of
FIR, statement of witnesses, mahazars and all
other connected documents relied upon for
the proposed prosecution as well as the
opinion of the LA/ALAs. to the Sanctioning
Authority."
18. The learned Advocate General as well as the
learned Senior Counsel Sri.Kapil Sibal have pointed out that
the investigation of vigilance cases as well as CBI cases is
on a separate footing, than the investigation in a normal
case. Certain powers are conferred on the Director of CBI
O.P.(Crl.).376 of 2015
: 12 :
as well as the Director of Vigilance to deal with the matters
during investigation. The learned Senior Counsel
Sri.Vijayabhanu also supports the said view. The other
learned Senior Counsel as well as the other counsel for
other parties have vehemently opposed the said argument,
and by relying on Lalitha Kumari(supra) argued that the
CBI manual has no force of law as it is not a statute enacted
by the legislature. It has to be noted that the Government
have approved Vigilance and Anti Corruption Bureau Manual
as per G.O(Rt.)No.4/2002/dated 03.01.2002. So, it is
evident that through the Government Order, the Government
has approved the Vigilance Manual as such. On going
through the catena of decisions on the point, this Court is of
the view that the Vigilance Manual holds good in the field of
investigation, provided those provisions are not contrary to
the provisions contained in the Cr.P.C. Paragraph 59(ii) of
the Vigilance Manual says that 'the vigilance case should be
registered within 10 days on getting orders to that effect
O.P.(Crl.).376 of 2015
: 13 :
from the Directorate'. Therefore, the Directorate is given
power, precisely the Director is given power, to order
registration of the Vigilance case. If that provision is not
contrary to the provisions of the Cr.P.C., it would hold good.
19. Section 158(1) Cr.P.C. says:
" Report how submitted - (1) Every
report sent to a Magistrate under section 157
shall, if the State Government so directs, be
submitted through such superior officer of
police as the State Government, by general or
special order, appoints in that behalf."
20. When the Government, by general or special
order, is appointing a superior officer of police under Section
158(1) Cr.P.C., there cannot be a quarrel with regard to the
legality of the proposition contained in paragraph 59(ii) of
the Vigilance Manual. It is evident that by general order, the
State Government has appointed the Director of Vigilance
being a Superior Police Officer, to order the registration of a
vigilance case. It is not contrary to the similar power
O.P.(Crl.).376 of 2015
: 14 :
conferred under Section 158(1) Cr.P.C. Therefore, paragraph
59(ii) of the Vigilance Manual is not contrary to the power
conferred on the Superior Police Officer under Section 158
(1) Cr.P.C.
21. In such case, what is the power of the Director of
Vigilance, and whether he has an unbridled power in all
matters concerning the investigation and the filing of final
report in the case, are the next questions to be decided.
22. As per Section 158(2) Cr.P.C.,
"Such superior officer may give such
instructions to the officer in charge of the police
station as he thinks fit, and shall, after
recording such instructions on such report,
transmit the same without delay to the
Magistrate."
23. On going through the wordings of Section 158(2)
Cr.P.C., it is evident that 'such report' mentioned in Section
158(2) Cr.P.C. does not take in the 'final report'. At the same
O.P.(Crl.).376 of 2015
: 15 :
time, till the filing of the final report, the said Superior Police
Officer shall have every power to give instructions to the
officer in charge of the Police Station, as he thinks fit, under
Section 158(2) Cr.P.C. Such a power is available to the
Director of Vigilance also.
24. In this case, what has been done is that certain
specific directions were given by the Director of Vigilance to
the investigating officer, as reproduced above. Whether
those instructions were given by him during the course of
investigation or not, is the next question. What was
submitted before the Director by the investigating officer in
this case, is a factual report and not a final report. A factual
report is one being filed in the course of investigation as the
investigation culminates on the filing of the final report only.
Therefore, the factual report does not take in a report under
Section 173 Cr.P.C. A report under Section 173(2) Cr.P.C.
alone is the final report. Matters being so, it cannot be said
that the Director had no power at all to issue specific
O.P.(Crl.).376 of 2015
: 16 :
directions to the investigating officer to the way in which the
investigation has to be conducted. At the same time, it has
to be examined whether the Director of Vigilance has
unbridled power to direct the investigating officer to file a
final report in a particular manner.
25. In Lalitha Kumari (supra), it was held:
"Besides, the learned Senior Counsel
relied on the special procedures prescribed
under the CBI Manual to be read into Section
154. It is true that the concept of "preliminary
inquiry" is contained in Chapter IX of the Crime
Manual of CBI. However, this Crime Manual is
not a statute and has not been enacted by the
legislature. It is a set of administrative orders
issued for internal guidance of the CBI officers.
It cannot supersede the Code. Moreover, in the
absence of any indication to the contrary in the
Code itself, the provisions of the CBI Crime
Manual cannot be relied upon to import the
concept of holding of preliminary inquiry in the
scheme of the Code of Criminal Procedure. At
this juncture, it is also pertinent to submit that
O.P.(Crl.).376 of 2015
: 17 :
CBI is constituted under a special Act, namely,
the Delhi Special Police Establishment Act,
1946 and it derives its power to investigate from
this Act."
26. In paragraph 120.6 of Lalitha Kumari (supra), it
was held:
"As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which
preliminary inquiry may be made are as under:
a. Matrimonial disputes/family disputes
b. Commercial offences
c. Medical negligence cases
d. Corruption cases
e. Cases where there is abnormal
delay/laches in initiating criminal prosecution,
for example, over 3 months' delay in reporting
the matter without satisfactorily explaining the
reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry."
O.P.(Crl.).376 of 2015
: 18 :
It was categorically held by the Constitution Bench that the
provisions of the CBI Manual overrides the provisions of the
Code of Criminal Procedure.
27. Section 173(3) Cr.P.C. reads as follows:-
"Where a superior officer of police has
been appointed under section 158, the report,
shall, in any case in which the State
Government by general or special order so
directs, be submitted through that officer, and
he may, pending the orders of the Magistrate,
direct the officer in charge of the police station
to make further investigation."
28. Apart from the power under Section 173(3)
Cr.P.C. as well as Section 158(2) Cr.P.C., no further power
has been granted by the Cr.P.C. to the superior officer, who
has been appointed under Section 158 Cr.P.C. It has to be
noted that the report contemplated under Section 173(3)
Cr.P.C. is necessarily the final report. In case of general or
special order by the State Government to that effect, such
Superior Police Officer appointed under Section 158(1)
O.P.(Crl.).376 of 2015
: 19 :
Cr.P.C. has got the power to scrutinize the final report in the
case, and pending orders by the Magistrate on such final
report, he can order a further investigation in the matter.
29. It seems that here in this particular case, the
Director of Vigilance has gone to the extent of directing the
investigating officer to submit a final report in tune with the
scrutiny report furnished by him. In such case, this Court is
of the view that there is no conflict with regard to the power
conferred on the Director of Vigilance as per Section 72(1)
of the Vigilance Manual and powers of such superior officer
under Section 173(3) Cr.P.C. It seems that the Director of
Vigilance has not exercised his powers in this case under
Section 173(3) Cr.P.C., as he has not gone through the final
report in the matter and as he has not ordered a further
investigation in the matter under Section 173(3) Cr.P.C.
30. It seems that in the matter of investigation made
by the investigating officer, the scrutiny report was furnished
by the Director of Vigilance on considering the materials
O.P.(Crl.).376 of 2015
: 20 :
contained in the factual report in the light of the materials
collected by the investigating officer during investigation.
The Director of Vigilance has no occasion to see the
demeanour of any of the witnesses examined by the
investigating officer. One cannot say that, even through a
threadbare examination, the Director of Vigilance, may be
able to scrutinize all the materials collected by the
investigating officer word by word. When he has obtained
legal opinion that there was no evidence of any demand and
therefore, no ingredients are there to bring out the offences
under Section 7 or 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, instead of directing the
investigating officer to file a final report in tune with the
scrutiny report, the Director of Vigilance ought to have
exercised his powers under Section 173(3) Cr.P.C. In all
probability, this Court is of the view that the Director of
Vigilance ought to have exercised his powers under Section
173(3) Cr.P.C. by ordering a further investigation in the
O.P.(Crl.).376 of 2015
: 21 :
matter concerning the demand and all like that.
31. Therefore, the criticism that the Director of
Vigilance has, in fact, attempted to substitute the opinion of
the investigating officer to be formed in the final report, with
his opinion, cannot be said to be not correct. The court
below has discussed the materials collected by the
investigating officer from the witnesses, in detail. This Court
is not stating anything regarding the merits or otherwise of
the materials collected by the investigating officer. At the
same time, it has to be noted that the Director of Vigilance
had also entertained a doubt whether the offences would lie
or not and that was why he had opted to get the legal
opinions from two designated Senior Advocates of the
Supreme Court of India in the matter. He was guided by
those legal opinions. Whether at that stage, the Director of
Vigilance was justified in taking a decision on the merits of
the evidence relating to the offences, is a question that has
to be considered at present.
O.P.(Crl.).376 of 2015
: 22 :
32. In M.C. Mehta v. Union of India and others
(2007 (1) SCC 110), it was held in paragraph 22 as follows:
" In Union of India v. Sushil Kumar Modi
investigation was entrusted to CBI in the
Fodder Scam case by the High Court to ensure
proper and honest performance of duty by CBI.
This Court directed CBI officers to inform the
Chief Justice of the Patna High Court about the
progress of the investigation and to obtain his
directions if so required for conducting the
investigation. The Joint Director of CBI
submitted his report on the investigation carried
out by him to the Chief Justice of the High
Court. The High Court found that the Director
was trying to interfere with the investigation
and, therefore, the High Court directed that all
reports of the CBI officers shall be submitted
directly to the Court without being forwarded to
the Director, CBI. This order of the High Court
was challenged. It was held that the Director,
CBI was responsible and accountable for the
proper investigation of the case and, therefore,
he cannot be excluded from the investigation.
O.P.(Crl.).376 of 2015
: 23 :
It was, however, observed that the Director, CBI
was duty bound to make a fair, honest and
complete investigation and officers associated
with the investigation have to function as
members of a cohesive team engaged in
common pursuit of such an investigation so as
to uphold the majesty of the law and preserve
the rule of law. It was held that, in case of any
difference of opinion between officers of CBI in
respect of the investigation, final decision
would not be taken by the Director himself or
by the Director merely on the opinion of the
Legal Department of CBI, but the matter would
be decided according to the opinion of the
Attorney General for India for the purpose of
investigation and filing of the charge-sheet
against any such individual. In that event, the
opinion would be sought from the Attorney
General after making available to him the
opinions expressed on the subject by the
persons associated with the investigation as a
part of the materials. We quote hereinbelow
paras 13 and 14 of the said judgment: (SCC
pp.505-06)
O.P.(Crl.).376 of 2015
: 24 :
"13.We make it clear that in case of any difference
of opinion between the officers of the CBI in relation to the
implication of any individual in the crimes or any other
matter relating to the investigation, the final decision in the
matter would not be taken by the Director, CBI, himself or
by him merely on the opinion of the Legal Department of
the CBI; and in such a situation, the matter would be
determined according to the opinion of the Attorney
General for India for the purpose of the investigation and
filing of the charge-sheet against any such individual. In
that event, the opinion would be sought from the Attorney
General after making available to him all the opinions
expressed on the subject by the persons associated with
the investigation as a part of the materials.
14. It appears necessary to add that the Court, in
this proceeding, is concerned with ensuring proper and
honest performance of its duty by the CBI and not the
merits of the accusations being investigated, which are to
be determined at the trial on the filing of the charge-sheet
in the competent court, according to the ordinary
procedure prescribed by law. Care must, therefore, be
taken by the High Court to avoid making any observation
which may be construed as the expression of its opinion
on merits relating to the accusation against any individual.
Any such observation made on the merits of the
accusation so far by the High Court, including those in
para 8 of the impugned order are not to be treated as final,
or having the approval of this Court. Such observations
should not, in any manner influence the decision on merits
at the trial on the filing of the charge-sheet. The directions
given by this Court in its aforesaid order dated 19.3.1996
have to be understood in this manner by all concerned,
including the high Court." "
33. The crux of the matter is whether the Director of
Vigilance was justified in making a threadbare examination
of the offences alleged against the accused at the stage
prior to the stage of Section 173(2) Cr.P.C.? As I have
O.P.(Crl.).376 of 2015
: 25 :
already pointed out, the Director of Vigilance has not gone
through the final report in the matter as he has directed the
investigating officer to file a final report in line with the
scrutiny report and report compliance. In such case, even
the stage under Section 173(2) Cr.P.C. was not there. Even
at the stage of Section 173(2) Cr.P.C., even the court cannot
consider whether there are materials to invite a conviction or
not. What is contemplated at the stage of Section 173(2)
Cr.P.C. is discernible from Section 169 Cr.P.C. as well as
Section 170 Cr.P.C.
34. As per Section 169 Cr.P.C., if there is no sufficient
evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, the investigating
officer has to order the release of the accused. As per
Section 170(1) Cr.P.C., if there is sufficient evidence or
reasonable ground as aforesaid, then, the Magistrate has to
take cognizance of the offence upon a police report and try
the accused as per the provisions of the Code. Therefore,
O.P.(Crl.).376 of 2015
: 26 :
what is contemplated under the Code at the stage of
Section 169 Cr.P.C. as well as Section 173(2) Cr.P.C. is
whether there is sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a
Magistrate. So, if there is even a reasonable ground of
suspicion to justify the forwarding of the accused to a
Magistrate, the investigating officer is bound to file a final
report under Section 173(2) Cr.P.C. to that effect. If the court
is satisfied that there are reasonable grounds to forward the
accused for trial, the court has to take cognizance of the
offences.
35. In this particular case, it cannot be said that the
Director of Vigilance was fully satisfied that there are no
reasonable grounds of suspicion to justify the forwarding of
the accused for trial. On the contrary, it seems that based
on the legal opinion received by him, he had acted
mechanically by holding that there are no grounds to bring
out the offences under Sections 7 and 13(1)(d) read with
O.P.(Crl.).376 of 2015
: 27 :
Section 13(2) of the P.C. Act.
36. It seems that the court below has, in fact,
criticised the Director of Vigilance in seeking legal opinion
from outside. At the same time, the learned Advocate
General has explained that the accused, being the Law
Minister of the State, the Advocate General himself had
advised the Director of Vigilance to seek opinion from
outside.
37. In Sarala Vs. Velu [AIR 2000 SC 1731], the Apex
Court has held that-
"The question here is not simply whether
an investigating officer, on his own volition or
on his own initiative, can discuss with the
Public Prosecutor or any legal talent, for the
purpose of forming his opinion as to the report
to be laid in the court. Had that been the
question involved in this case it would be
unnecessary to vex our mind because it is
always open to any officer, including any
investigating officer, to get the best legal
O.P.(Crl.).376 of 2015
: 28 :
opinion on any legal aspect concerning the
preparation of any report. But the real
question is, should the High Court direct the
investigating officer to take opinion of the
Public Prosecutor for filing the charge sheet?"
38. The Director of Vigilance cannot be found fault
with in his obtaining the legal opinion from legal expert or
experts. There is nothing wrong in it. When the Advocate
General of the State has also advised him to have such a
recourse, the same cannot be found fault with. At the same
time, it has to be considered whether at that particular stage,
in order to consider whether there was reasonable ground to
justify the forwarding of the accused to the court, any such
legal opinion was required or not.
39. I am reminded of the Shakespearian saying that
'Caesar's wife must be above suspicion'. The fundamental
principle that justice is not only done but it should appear
that it is done, is applicable not to the judiciary alone;
whereas, it is equally applicable to the other two pillars of
O.P.(Crl.).376 of 2015
: 29 :
the State also. In a case like this, it is quite natural that the
common man may entertain a feeling that there cannot be a
proper investigation by a State Machinery when the
accused, against whom fingers are pointed out, is
continuing as a Minister. I have noted an instance wherein
even the learned Advocate General had to be bypassed by
the Director of Vigilance to obtain a legal opinion from
outside. Of course, I am not finding fault with the Director of
Vigilance on that score. I have gone through Ground K in
the Original Petition, which says:-
"The opinion of the Advocate General of
the State or any Law Officer under him was
not attempted, since the accused is also the
Law Minister of the State and the Director
made an honest attempt to get the best
opinion from other experts on the issue."
Whether the common man should pay for that also? I am
not making any further comments on it, as this Court is not
invited to answer such questions. I am leaving that question
O.P.(Crl.).376 of 2015
: 30 :
to the conscience of the accused!
40. The main complaint forwarded by the learned
Senior Counsel Sri.Kapil Sibal is that the court below has
unnecessarily gone into the details of the materials collected
by the investigating officer and has virtually entered some
findings with regard to demand and acceptance etc.
According to him, those observations were not at all
warranted for exercising the powers conferred on the court
below within the meaning of Section 173(8) Cr.P.C. On
going through the matter, it seems that some how in his
anxiety to justify the taking cognizance of the offence or of
ordering a further investigation, the court below has made
those observations in detail. The court below could have
avoided those observations. It is made clear that those
observations made by the court below shall not have the
effect of any finding entered by the court below on merits or
any direction issued by the court below. Such observations
made by the court below shall not prejudice the accused in
O.P.(Crl.).376 of 2015
: 31 :
any manner in the continued investigation or a trial, in case
it is necessitated.
In the result, this Original Petition is disposed of with
the aforesaid directions. The observations made by the
court below against the Director of Vigilance that he has no
power to give timely directions to the investigating officer,
are expunged. It is made clear that the Director of Vigilance
has got sufficient power and authority by exercising his
powers under paragraph 72(1) of the Vigilance Manual read
with Section 158(2) Cr.P.C., to give timely directions in the
matter of investigation, and not after that. The Director of
Vigilance ought to have exercised the powers under Section
173(3) Cr.P.C. in this case, in the absence of which, the
court below is perfectly justified in ordering a further
investigation under Section 173(8) Cr.P.C.
Sd/-
B. KEMAL PASHA, JUDGE
ul/aks/09.11.2015
// True Copy //
PA to Judge