Partly allowed

V.S.Sunilkumar v. State of Kerala

Kerala HC3 Dec 2014WP(C)/29856/2014

Case brief

AI extract

What is this about?

The High Court of Kerala addressed two writ petitions challenging the Director of Vigilance and Anti Corruption Bureau's decision to order a quick verification instead of registering an FIR regarding anti-corruption allegations against a State Cabinet Minister. The Court upheld the preliminary enquiry given the high office of the accused.

What did the court decide?

The Court upheld the decision for quick verification but directed the Director to take a final decision on registering an FIR immediately after the report is submitted within one week.

V.S.Sunilkumar Vs State of Kerala — Corruption | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936

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WP(C).No. 29856 of 2014 (S)

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PETITIONER(S):

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1. V.S.SUNILKUMAR AGED 47 YEARS S/O.SUBRAMANIAN, VELICHAPAD HOUSE, ANTHIKKAD P.O. THRISSUR.

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2. P.K.RAJU AGED 50 YEARS S/O.PAZHANIYAPPAN, TC 1/1536 (4), LENIN BHAVAN MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.

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BY ADVS.SRI.RENJITH THAMPAN (SR.) SRI.V.M.KRISHNAKUMAR SRI.K.J.MOHAMMED ANZAR SRI.M.V.ANANDAN SRI.C.P.PRADEEP

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF HOME AFFAIRS, SECRETARIAT THIRUVANANTHAPURAM, PIN - 695 001.

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2. DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM PIN - 695 001.

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3. DIRECTOR VIGILANCE AND ANTI - CORRUPTION BUREAU THIRUVANANTHAPURAM, PIN - 695 033. 4. SHRI K.M.MANI HON'BLE MINISTER FOR LAW AND FINANCE, SECRETARIAT THIRUVANANTHAPURAM, PIN - 695 001.

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5. DR.BIJU RAMESH WORKING PRESIDENT KERALA STATE BAR AND RESTAURANT OWNERS' ASSOCIATION RAJADHANI BUILDING, EAST FORT, THIRUVANANTHAPURAM PIN - 695 001.

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6. SUB INSPECTOR OF POLICE MUSEUM POLICE STATION, THIRUVANANTHAPURAM PIN - 695 001.

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-2-

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WP(C).No. 29856 of 2014

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7. THE SUPERINTENDENT OF POLICE (INT.) VIGILANCE AND ANTI-CORRUPTION BUREAU THIRUVANANTHAPURAM, PIN - 695 033.

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R1 TO R3 & R7 BY ADVOCATE GENERAL SRI.K.P.DANDAPANI SPL.GOVERNMENT PLEADER SMT.GIRIJA GOPAL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH WP(C).NO.32302 OF 2014 ON 03-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 29856 of 2014 (S)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE NEWS REPORT PUBLISHED IN TIMES OF INDIA. EXHIBIT P2: TRUE COPY OF THE LETTER NO. 535/LO/2014 DATED 01/11/2014 OF V.S.ACHUTHANANDAN TO THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P3: TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN ECONOMIC TIMES ON 01/11/2014.

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EXHIBIT P4: TRUE COPY OF THE NEWS REPORT PUBLIHSED IN THE WEBSITE OF ZEE NEWS ON 02/11/2014.

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EXHIBIT P4(A): TRUE COPY OF THE LETTER OF THE DIRECTOR OF VIGILANCE AND ANTI - CORRUPTION BUREAU TO THE SUPERINTEDNET OF POLICE DATED 04/11/2014.

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EXHIBIT P5: TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN HINDU DAILY ON 05/11/2014.

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EXHIBIT P6: TRUE COPY OF THE NEWS REPORT PUBLISHED IN INDIAN EXPRESS DAILY ON 09/11/2014. EXHIBIT P7: TRUE COPY OF THE REPORT PUBLISHED IN MANORMA ONLINE DATED 09/11/2014.

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EXHIBIT P8: TRUE COPY OF THE COMPLAINT DATED 05/11/2014 FILED BY THE 2ND PETITIONER BEFORE THE 6TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P9: COPY OF NOTE HANDED OVER BY THE ADVOCATE GENERAL TO THE HON'BLE COURT.

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EXHIBIT P10: COPY OF NEWSPAPER REPORTED PUBLISHED IN TIME OF INDIADATED 7.11.2014.

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RESPONDENT(S)' EXHIBITS ------------------------

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ANNEXURE R1(a): COPY OF ORDER 5.3.2014 IN CRL.M.P.NO.5029 OF 2014 IN W.P(CRL) 68 OF 2008.

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ANNEXURE R1(b): COPY OF CIRCULAR NO.1/76.

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ANNEXURE R1(c): COPY OF GO P NO.65/92/Vig. DT.12.5.1992. ANNEXURE R1(d): COPY OF GO(P)No.18/97/Vig DATED 5TH APRIL 1997. ANNEXURE R1(e): COPY OF G.O.(P) NO.29/08/Vig DATED 16TH AUGUST 2008. ANNEXURE R1(f): COPY OF CIRCULAR NO.10/2008 DATED 5.9.2008 OF THE DIRECTOR VACB.

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/TRUE COPY/

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PS TO JUDGE

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ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J

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W.P(C).Nos.29856 & 32302 of 2014

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Dated this the 3^rd December, 2014 JUDGMENT

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Ashok Bhushan, Ag.CJ.

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These two Writ Petitions have been filed as public interest litigation raising grievance regarding non registration of First Information Report (FIR) on the allegations made by one Dr.Biju Ramesh, fifth respondent, before media about the bribe given to a Cabinet Minister of the State.

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W.P(C).No.29856 of 2014 has been filed by two petitioners. First petitioner is the Member of Legislative Assembly of the State of Kerala. Second petitioner claims to be a social and political worker. It has been pleaded in the Writ Petition that the fifth respondent, who is the Working President of the Kerala State Bar and Restaurant Owners' Association, has made revelation that the fourth respondent demanded bribe for ensuring decision by the

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WP(C).29856 & 32302/14 2

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Government favouring the bar owners in the State of Kerala. The said revelation was made by the fifth respondent before media, which was published in the 'Times of India' daily and other newspapers on 1.11.2014. On the same day the Leader of Opposition has given a letter dated 1.11.2014, which has been produced as Exhibit P2, requesting the Director of Vigilance and Anti Corruption Bureau to get the allegations investigated after registering FIR.

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The Director, after receiving the letter of the Leader of Opposition, has issued Exhibit P4(a) order dated 4.11.2014 addressed to the Superintendent of Police, Vigilance and Anti Corruption Bureau forwarding the letter dated 1.11.2014 with a direction to conduct a Quick Verification in the matter by a responsible officer of the rank of DySP and to forward the report within 45 days to his office. The petitioners, feeling aggrieved by the said action, have come up with the Writ Petition praying for the following reliefs:

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“i. Call for records leading to Exhibit P4(a) and issue a writ in the nature of certiorari quashing Exhibit P4 (a) in so far as it grants 45 days for filing a report in the preliminary enquiry.

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ii. Issue a writ in the nature of mandamus commanding the 3^rd respondent to conclude the preliminary enquiry ordered as per Ext.P4(a), within seven days from the ordering of the preliminary enquiry and register a crime on the basis of the allegations made by the 5^th respondent against the 4^th respondent as is revealed from Ext.P1 and P2, if such allegations taken in its face value amounts to commission of a cognizable offence.

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iii. Issue a writ in the nature of mandamus commanding respondents 2 and 3 to refrain from conducting a detailed factual enquiry on the allegations made by the 5^th respondent against the 4^th respondent without registering a crime and filing of first information report.”

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W.P(C).No.32302 of 2014 has been filed by the petitioner, who is the Convenor of the Left Democratic Front. The said Writ Petition has been filed also raising

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grievance regarding non-registration of FIR. The petitioner has also prayed for monitoring the investigation by this Court. Following are the prayers made in the Writ Petition:

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“i. To issue a writ of mandamus or any other writ, order or direction commanding the respondents 1 to 3, 6 and 7 to draw up a First Information Report and register a crime against the 4^th respondent and conduct investigation into the case by constituting a special team so as to bring the culprits to book;

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ii. To issue a writ of mandamus or any other writ, order or direction commanding respondent 3 to submit periodical reports regarding the progress of investigation in the case before this Hon'ble Court so as to monitor the investigation.”

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We have heard Sri.Renjith Thampan, learned

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Senior Advocate appearing for the petitioners in W.P(C). No.29856 of 2014, Sri.K.Gopala Krishna Kurup, learned Senior Advocate appearing for the petitioner in W.P(C). No.32302 of 2014 and the learned Advocate General Sri.K.P.Dandapani appearing for the State.

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The submissions, which have been raised by learned counsel for the petitioners in both the Writ Petitions are more or less similar. The principal submission, which has been raised by learned Senior Counsel for the petitioners is that on the information, which was sent as per letter dated 1.11.2014 of the Leader of Opposition addressed to the Director, Vigilance and Anti Corruption Bureau, it was mandatory for the Director to register an FIR and thereafter direct for investigation. It is submitted that the Director had no discretion not to register FIR. It is submitted that the Quick Verification report, which has been directed to be obtained is without any basis and not in accordance with the provisions of the Code of Criminal Procedure. He submits that there was no word to direct for Quick Verification by the Director. It is submitted that even the preliminary enquiry, which can be directed, is only in cases where the information does not disclose a cognizable offence. It is further submitted that the Quick

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WP(C).29856 & 32302/14 6

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Verification, which has been directed to be obtained has been allowed 45 days time, whereas there is no exceptional circumstance in the present case to allow 45 days time to obtain Quick Verification report. It is submitted that the Director, Vigilance and Anti Corruption Bureau, who was directed for Quick Verification report is likely to send the report to the Government, who has shown inclination to protect the fourth respondent and such action will be against the rule of law. It is submitted that the Quick Verification is being prolonged and delayed to save the fourth respondent. Learned counsel for the petitioners has relied on a Constitution Bench decision of the Apex Court reported in Lalitha Kumari v. Government of Uttar Pradesh and others [(2014)2 SCC 1]. Other judgments of the Apex Court which are relied on shall be referred later if necessary for considering the submissions.

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The learned Advocate General appearing for the State has defended the action of the Director, Vigilance

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WP(C).29856 & 32302/14 7

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and Anti Corruption Bureau. He submits that the letter dated 1.11.2014 only contains certain allegations, which were made by another person, i.e., the fifth respondent before media. He submits that present is a case where unfounded allegations are made against a Cabinet Minister, hence, it was a case where Quick Verification was required before taking further action in the matter. He submits that the Vigilance Department has been constituted by the State since 1964 and it's powers are regulated by circulars as well as Government orders issued from time to time. He has referred to the statement filed in the Writ Petition, wherein certain relevant Government orders have been brought on record. He submits that even the Constitution Bench of the Apex Court in Lalita Kumari's case (supra) has also carved out certain exceptions and has approved ordering preliminary enquiry before registering FIR. He submits that one of the exceptional cases, which has been carved out by the Apex court is a case where allegations of corruption are made. He submits that in the present case, allegations are being made

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against a sitting Cabinet Minister of the State, hence, looking into the nature of allegations, the Director has rightly exercised his discretion in directing for conducting a preliminary enquiry. He further submits that the initial direction in the judgment in Lalita Kumari's case (supra) for completing the preliminary enquiry within seven days had been subsequently modified by the Apex Court. This is a case wherein due to exceptional circumstances six weeks time can be allowed for completing the preliminary enquiry. He submits that the order of the Director permitting enquiry to be conducted within 42 days is in accordance with the law laid down by the Apex court in Lalita Kumari's case (supra) , hence, no exception can be taken to the decision of the Director for completion of the preliminary enquiry. He submits that the preliminary enquiry will be completed and final report will be submitted within one week.

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Sri.Gopala Krishna Kurup, learned Senior Advocate appearing for the petitioner in W.P(C).No.32302 of 2014

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WP(C).29856 & 32302/14 9

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has also, in addition to the submissions, which have been made by learned Senior Counsel appearing for the petitioners in W.P.No. 29856 of 2014, prayed that present is a case where this Court should monitor the investigation looking into the nature of allegations and the position of the fourth respondent, who is a Cabinet Minister in the State of Kerala. He placed reliance on some judgments of the Apex Court, where direction has been issued to monitor the investigation by the High Court/Supreme Court.

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We have considered the submissions of the learned counsel for the parties and perused the records.

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Before we proceed to examine the rival contentions, it is relevant to refer to letter dated 1.11.2014, which was sent by the Leader of Opposition to the Director, Vigilance and Anti Corruption Bureau. It is useful to quote the English translation of the said letter, which is to the following effect:

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“The details of corruption amounting to crores of rupees in relation to the liquor policy

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of the State, is now in open. The details of bribe given to Minister by the bar hotel owners is revealed in the background of the criticism of the liquor policy of the State government and stay order passed by the Hon'ble High Court. The Chief whip of the State Government has also ratified the allegations. Dr.Biju Ramesh who is an abkari contractor has alleged that he had paid rupees 1 crore in two installments to the Finance Minister Sri.K.M. Mani for withdrawing the abkari policy and prohibition of bars. This is ratified by the Hon'ble Chief whip P.C. George. He further alleged that the congress party ministers and other top leaders had accepted the bribe. I am sure that the allegation now made is of very serious nature against the government. You may be also aware of the allegations and statement as aforesaid which has come in the media. I request that, being the Director of Vigilance and Anti Corruption Bureau and a senior police officer, these allegations which came under the purview of Prevention of Corruption Act should be investigated after registering FIR and culprits should be punished.”

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WP(C).29856 & 32302/14 11

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The said letter highlights the allegations of Dr.Biju Ramesh, who is an abkari contractor. The letter uses the word 'allegations' in several sentences. It has been stated in the letter that “Dr.Biju Ramesh who is an abkari contractor has alleged that he had paid rupees 1 crore in two instalments to the Finance Minister Sri.K.M.Mani for withdrawing the abkari policy and prohibition of bars”. The letter further refers that “he further alleged that the congress party ministers and other top leaders had accepted the bribe”. Again it has been stated that “I am sure that the allegation now made is of very serious nature against the government”. It has been further stated that “you may be also aware of the allegations and statement as aforesaid which has come in the media”. The letter, thus, informed about the allegations made by Dr.Biju Ramesh against the Cabinet Minister.

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Section 154 of Chapter XII of the Code of Criminal Procedure deals with information to the Police and their powers to investigate. It is relevant to note that the

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Directorate of Vigilance and Anti Corruption Bureau has already been notified as the Police Station vide notification No.10058/C1/2000/Vig dated 4.12.2000 as has been stated in paragraph 21 of the statement filed in W.P (C).No.29856 of 2014. Thus, letter dated 1.11.2014, which has been given is to be treated as the information given to the Director as Station House Officer.

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The learned Advocate General has referred to circulars, which have been produced along with the statement constituting the Vigilance Cell, namely, circulars dated 10.3.1966, 5.4.1997, 16.8.2008 and 5.9.2008. Circular dated 5.9.2008 has been produced as Annexure R1(f), which deals with reference from Courts and by the Government. The said circular deals with conducting of elaborate vigilance enquiry into the references endorsed by Courts and Government.

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Present is a case where there is neither any direction from the Court or from the Government to conduct any investigation or enquiry. Present is a case

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WP(C).29856 & 32302/14

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where information has been sent to the Director, which information has to be treated as information to Police Station within the meaning of Section 154 Cr.P.C.

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The crucial question, which is to be examined and answered is as to whether the Director committed any error in directing for Quick Verification by order dated 4.11.2014 and not immediately registering an FIR on receipt of the letter. The question regarding filing of FIR, its registration, investigation and consequent action has been engaging the attention of this Court and Apex Court in large number of cases. Learned counsel on both sides have placed reliance on the Constitution Bench judgment in Lalita Kumari's case (supra) . According to the petitioners, the Constitution Bench has now unequivocally laid down that if the information given to a Police Station discloses cognizable offence, he has no option, except to register an FIR and investigate the matter. On the other hand, the learned Advocate General submits that the judgment itself has carved out various exceptions where it

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is not mandatory to register an FIR and there is a discretion given to Station House Officer to direct for preliminary enquiry before registering an FIR. He submits that corruption case is one of the exceptions where preliminary enquiry is to be directed.

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Before we proceed further, it is relevant to extract the directions issued by the Apex Court in Lalita Kumari's case (supra) . The conclusion/directions have been contained in paragraph 120 of the judgment, which is quoted as under:

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“120. In view of the aforesaid discussion, we hold:

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120.1. The 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.

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120.2. 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.

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120.3. 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

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WP(C).29856 & 32302/14

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the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

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120.4. 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 information received by him discloses a cognizable offence.

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120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

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120.6. 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:

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(a) Matrimonial disputes/ family disputes

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(b) Commercial offences

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(c) Medical negligence cases

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(d) Corruption cases

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(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.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

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120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry

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WP(C).29856 & 32302/14

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should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

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120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

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The learned Advocate General has referred to paragraphs 115 and 117 also, which are to the following effect:

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“115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. Once such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.

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WP(C).29856 & 32302/14

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xx xx xx

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117. In the context of offences relating to corruption, this Court in P.Sirajuddin expressed the need for a preliminary inquiry before proceeding against public servants.”

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The Constitution Bench has laid down that registration of FIR is mandatory under Section 154 Cr.P.C when cognizable offence is disclosed and no preliminary enquiry is permissible in such situation. However, in paragraph 120.6 it has been laid down by the Constitution Bench that on what type and in which case preliminary enquiry is to be conducted depending on the facts and circumstances of each case. Some category of cases in which preliminary enquiry may be made have been enumerated in such paragraph, which include 'corruption cases'. There is no dispute between the parties that allegations, if taken on face value, relate to allegations in the realm of corruption.

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We have already extracted the letter dated 1.11.2014. The said letter communicates the information of allegations made by the fifth respondent, which was

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disclosed in the media. There cannot be any doubt that information of offence can be given by any person whether he has seen the commission of offence or not. It cannot also be disputed that even Police authorities themselves can, after coming to note about some offences, register a case and proceed with the investigation, but in what cases instead of registering an FIR preliminary enquiry can be directed is a question which needs careful consideration. There is a very thin line of demarcation and it is to be examined and a decision is to be taken by the Station House Officer. However, that decision or discretion is not to be exercised in a manner so as to defeat the very purpose and object of Section 154 Cr.P.C.

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But, looking into the nature of allegations, which are contained in the letter dated 1.11.2014 and the Director, Vigilance and Anti Corruption Bureau having taken a decision to conduct a Quick Verification/preliminary enquiry, we are of the view that

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the said decision cannot be held to be palpably wrong, looking into the nature of the allegations and the fact that the allegations are made against a sitting Cabinet Minister. Ministers of the Government, public officials, including public servants have to work under lot of constraints. They have to take policy decisions, which are likely to be opposed by someone, therefore, looking into the nature of allegations, the preliminary enquiry cannot be interfered by this Court in exercise of power under Article 226 of the Constitution. We are further of the view that the preliminary enquiry, which has been directed to be conducted, as stated by the learned Advocate General, will be completed within one week hence. As soon as the Quick Verification Report is received, it is the Director, who has to take a decision. Present is a case where the Director has received information as Station House Officer under Section 154 Cr.P.C. Present is not a case where vigilance enquiry has been directed by the Government or the said report has to be sent to the Government. The

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decision to register FIR cannot be left to the discretion of the Government.

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In the circumstances of the present case, where allegations have been made against a Cabinet Minister of the State of Kerala, we are of the view that the report, which is in any case, has to be submitted within 42 days as directed, should be examined by the Director and a decision be taken looking into the report for registering an FIR or not registering an FIR by the Director himself. The said decision shall be taken immediately after receipt of the report, which report has to be mandatorily submitted to the Director within one week. In view of the fact that the preliminary enquiry is under process and looking into the submissions of learned counsel for the parties, including as to whether the information discloses a cognizable offence or not, since more than one month has already elapsed, the report, as submitted by the learned Advocate General, is to be submitted within a week, let a decision be taken by the Director in accordance with the provisions of the Code of Criminal Procedure. We further observe that the provisions

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of the Vigilance Manual and the circulars thereunder are not

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to be interpreted in a manner so as to act contrary to the statutory provisions as already laid down by the Apex Court in Lalita Kumari's case (supra) .

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The last submission, which has been made by Sri.Gopala Krishna Kurup, learned Senior Counsel appearing for the petitioner in W.P(C).No.32302 of 2014 is that this Court should monitor the investigation.

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In view of the fact that till date the stage is of a preliminary enquiry and appropriate decision is yet to be taken, it is premature at this stage for us to take a decision to monitor the said investigation, if any. Thus, in our view, the said prayer cannot be granted. It is declined.

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We dispose of the Writ Petitions with the above direction.

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ASHOK BHUSHAN ACTING CHIEF JUSTICE

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A.M.SHAFFIQUE JUDGE

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vgs3/12/14

V.S.Sunilkumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

V.S.Sunilkumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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