A.K. Sreekumar v. Director, Vigilance & Anti-Corruption Bureau, State of Kerala & SRI A RAJESH SPL PP VACB

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943 WP(C) NO. 6650 OF 2021** ## **PETITIONER:** A.K. SREEKUMAR AGED 43 YEARS S/O. LATE KARUNAKARAN NAIR, AGED 43 YEARS, EDAPPALLYKURATH HOUSE, PUTHUPPALLY P.O, KOTTAYAM, PRESENTLY RESIDING AT KANDATHIL TOURIST HOME COMPLEX, SASTHRI ROAD, KOTTAYAM-1. BY ADVS. SOORAJ T.ELENJICKAL SRI.P.A.MOHAMMED SHAH SRI.K.ARJUN VENUGOPAL SHRI.ASWIN KUMAR M J SMT.HELEN P.A. SRI.SHAHIR SHOWKATH ALI ## **RESPONDENTS:** 1 THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, VIGILANCE DIRECTORATE, PMG VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033 2 STATE OF KERALA, THE SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 SRI A RAJESH SPL PP VACB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON 01.09.2021 DELIVERED THE FOLLOWING: W.P.(C) No.6650/2021 2 ## **R.NARAYANA PISHARADI, J ************************ W.P.(C) No.6650 of 2021 ------------------------------------Dated this the 1[st] day of September, 2021 ------------------------------------------- ## **J U D G M E N T** The petitioner is said to be a social worker. He had made Ext.P1 complaint dated 27.11.2020 to the Director, Vigilance and Anti-Corruption Bureau (VACB), who is the first respondent in this writ petition, alleging corrupt practices in relation to the affairs of Nazareth Ashramam, a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and the educational institutions conducted by that Society. 2. Since no action was taken by the first respondent on Ext.P1 complaint, the petitioner filed Ext.P2 complaint in the matter, against nine persons, in the Court of the Enquiry Commissioner and Special Judge (Vigilance), Kottayam. W.P.(C) No.6650/2021 3 3. When Ext.P2 complaint was taken up for hearing on 19.02.2021, the following order was passed by the Special Court. _“Hearing advanced. Additional Legal Adviser submitted that a permission sought for to conduct a verification. Hence call for report from Vigilance and Anti-Corruption Bureau and call on to 20.04.2021.”_ 4. Thereafter, on making enquiries, the petitioner came to know that the verification process was not commenced by the VACB. Therefore, the petitioner made Ext.P4 representation dated 27.02.2021 to the first respondent, praying that enquiry may be conducted immediately on his pending petition without any delay. 5. Alleging that the first respondent has not even commenced an enquiry in the matter, the petitioner has filed this writ petition, seeking the following reliefs: _“(i) To issue a Writ of Mandamus commanding the 1[st] respondent to conduct quick verification upon Exhibit-P2 complaint immediately and submit report to the Enquiry Commissioner & Special Judge, Kottayam without delay and within a stipulated time period._ W.P.(C) No.6650/2021 4 _(ii) To direct the 1[st] respondent to act upon Exhibit-P4 representation without delay. And_ _(iii) To issue such further orders as this Honourable Court may deem fit on the facts and circumstances of the case.”_ 6. The Deputy Superintendent of Police, Unit-II, VACB, Eastern Range has filed a report dated 28.07.2021 in this writ petition. What is stated in this report is that, a verification of Ext.P1 complaint filed before the Director, VACB has been done and a verification report has been submitted on 19.04.2021 with a recommendation to conduct a preliminary enquiry into the matter, after obtaining prior approval from the competent authority under Section 17A of the Prevention of Corruption Act, 1988 (for short 'the Act'). 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. 8. The report filed by the Dy.S.P, VACB in the writ petition shows that verification of Ext.P1 complaint was completed and a report has been submitted with a W.P.(C) No.6650/2021 5 recommendation to conduct a preliminary enquiry into the matters stated in Ext.P1 complaint. Learned Public Prosecutor has submitted that the “verification” referred to in the above report, which is stated to have been completed, is only an administrative verification and it was not a preliminary enquiry or quick verification conducted to ascertain whether Ext.P1 complaint revealed commission of any cognizable offence. 9. When information with regard to the commission of cognizable offence is laid with the police but no action in that behalf is taken, the complainant/aggrieved person has right under Section 190 read with Section 200 of the Code of Criminal Procedure to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence (See **All India Institute of Medical Sciences Employees Union v. Union of India: (1996) 11 SCC 582, Aleque Padamsee v. Union of India:(2007) 6 SCC 171, Sakiri Vasu v. State of U.P : AIR 2008 SC 907, Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage : (2016) 6 SCC 277** and **M. Subramaniam** W.P.(C) No.6650/2021 6 **v. S. Janaki : (2020) 16 SCC 728** ). Therefore, when no action was taken on Ext.P1 complaint made by him to the first respondent, the petitioner had rightly filed Ext.P2 complaint in the competent court. 10. The first relief sought in this writ petition is to issue a direction to the first respondent to conduct quick verification upon Ext.P2 complaint and submit a report to the Special Court. No such relief can be granted in favour of the petitioner for the simple reason that the Special Court has not either forwarded Ext.P2 complaint to the first respondent or directed the first respondent to conduct any quick verification or preliminary enquiry into the matters stated in Ext.P2 complaint. 11. The second relief sought in this writ petition is to direct the first respondent to act upon Ext.P4 representation made by the petitioner. The prayer in Ext.P4 representation made by the petitioner to the first respondent is that “immediate enquiry may be conducted on my pending petition without any delay”. The “pending petition” referred to above can only be W.P.(C) No.6650/2021 7 Ext.P1 complaint and not Ext.P2 complaint. As noticed earlier, Ext.P2 complaint was not forwarded from the Special Court to the VACB and it was not pending before the first respondent. Moreover, when Ext.P2 complaint was pending in the competent court, the petitioner could not have directly made any representation to the first respondent to conduct enquiry into the matters stated in that complaint. 12. Since the petitioner has already filed Ext.P2 complaint in the competent court, he has to pursue his remedies in that complaint and not on Ext.P1 complaint. The appropriate action to be taken on Ext.P2 complaint is to be decided by the Special Court. The order dated 19.02.2021 passed by the Special Court does not show that the Special Court had directed conducting of preliminary enquiry or quick verification into the matters stated in Ext.P2 complaint. It appears that the submission made by the Additional Legal Advisor before the Special Court on 19.02.2021 is with regard to the verification being conducted on Ext.P1 complaint made by the petitioner before the first respondent. W.P.(C) No.6650/2021 8 13. On receipt of a complaint, a Magistrate (in the present case the Special Judge), has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200 of the Code of Criminal Procedure, 1973 (for short 'the Code'). After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203 of the Code. On the other hand, if in his opinion, there is sufficient ground for proceeding, he may issue process under Section 204 of the Code. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, under Section 202 of the Code, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient W.P.(C) No.6650/2021 9 ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202 of the Code, he may order an investigation to be made by the police under Section 156(3) of the Code. When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2) of the Code (See **India Carat Pvt. Ltd v. State of Karnataka : AIR 1989 SC 885** ). 14. Of course, if the complaint is made alleging offences under the Act against a public servant, after amendment of the provisions of the Act as per Act 16 of 2018, the question of obtaining sanction for prosecution may arise at various stages. 15. In the present case, the Special Court has not taken any action or decision on Ext.P2 complaint filed by the petitioner. The Special Court has not adopted any of the courses mentioned above. The Special Court has not even ordered the VACB to conduct a preliminary enquiry into the matters stated in Ext.P2 complaint. In such circumstances, it is for the petitioner to move W.P.(C) No.6650/2021 10 that court seeking appropriate reliefs. If the petitioner had got a grievance that the Special Court has not taken any action on Ext.P2 complaint, he should have sought appropriate reliefs from this Court by invoking Article 227 of the Constitution of India. He has not chosen to do so. 16. In the above circumstances, in view of the fact that the petitioner has already filed Ext.P2 complaint in the Special Court in respect of the matters stated in Ext.P1 complaint, the reliefs sought in this writ petition cannot be granted. The writ petition is liable to be dismissed. 17. Consequently, the writ petition is dismissed. The petitioner is at liberty to move the Special Court concerned seeking appropriate action on Ext.P2 complaint filed by him in that court. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr 11 W.P.(C) No.6650/2021 ## **APPENDIX IN W.P.(C) NO.6650 OF 2021** ## PETITIONER'S EXHIBITS: EXHIBIT-P1: TRUE COPY OF THE PETITION DATED 27.11.2020 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT-P2: TRUE COPY OF THE COMPLAINT CMP.NO.60/2021 DATED 29.01.2021 ON THE FILES OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM. EXHIBIT-P3: TRUE COPY OF THE ORDER SHEET/PROCEEDINGS PAPER IN CMP.NO.60/2021 ON THE FILES OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM. EXHIBIT-P4: TRUE COPY OF THE REPRESENTATION DATED 27.02.2021 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. ## RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE