Binu N.E. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 WP(C) NO. 17418 OF 2020** ## **PETITIONER:** **BINU.N.E AGED 30 YEARS S/O. ELDHOSE N.P., NEELANGAL HOUSE, VALAYANCHIRANGARA P.O., VENGOLA, PERUMBAVOOR, ERNAKULAM DISTRICT,PIN-683 556** **BY ADVS. K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT SRI.M.A.AHAMMAD SAHEER SMT.SANDHYA JOY** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REP BY SECRETARY, TO THE LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM-685 001** - **2 VIGILANCE AND ANTI CORRUPTION BUREAU, CBI ROAD, KATHRIKKADAVU, KALOOR,ERNAKULAM-682 017, REP BY DEPUTY SUPERINTENDENT OF POLICE.** - **3 ASSISTANT ENGINEER, LSGD SECTION, VENGOLA GRAMA PANCHAYATH,VENGOLA, ERNAKULAM DISTRICT-683 556** - **4 VENGOLA GRAMA PANCHAYATH VENGOLA P.O., ERNAKULAM DISTRICT,PIN-683 556,REP BY ITS SECRETARY** - **5 THE SECRETARY, VENGOLA GRAMA PANCHAYATH, VENGOLA P.O., ERNAKULAM DISTRICT,PIN-683 556** W.P.(C) No.17418/2020 2 **6 SREEKUMAR.M.D. AGED 46 YEARS MADATHETHUKUDI HOUSE, PULLUVAZHY P.O., PERUMBAVOOR, ERNAKULAM DISTRICT,PIN-683 541** **R1 TO R3 SMT S L SYLAJA-PP** **R4 & R5 BY SRI C.A. NAVAS, SC, VENGOLA GRAMA PANCHAYATH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.08.2021, THE COURT ON 02.09.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.17418/2020 3 ## **R.NARAYANA PISHARADI, J** ## ************************** W.P.(C).No.17418 of 2020 ------------------------------------Dated this the 2[nd] day of September, 2021 ------------------------------------------- ## **J U D G M E N T** ## The prayers made in this writ petition read as follows: _“i) Issue a writ of mandamus or any other writ or direction commanding the 4[th] and 5[th] respondents to take immediate action to complete the road paving project of Tankcity-Varikkad Road, 14[th] ward of Vengola Grama Panchayath in a time frame._ _ii) Direct the 2[nd] respondent to take immediate criminal action on the basis of Exhibit P5 complaint under the Code of Criminal Procedure and the Prevention of Corruption Act._ _iii) Direct the 1[st] respondent to conduct a department level enquiry and take appropriate disciplinary action and to recover the amount released from the Treasury from the accused._ _iv) To pass any order or direction as this Court deems fit and proper while considering this Writ Petition.”_ W.P.(C) No.17418/2020 4 2. The averments in the writ petition, on the basis of which the above reliefs are sought, are as follows: The 4[th] respondent Panchayat sanctioned a project on 18.04.2018 for paving concrete tiles in Tankcity-Varikkad Road. A detailed estimate was prepared by the 3[rd] respondent. The amount estimated was Rs.8,95,000/-. As per the estimate, the 4[th] respondent Panchayat entered into an agreement with the 6[th] respondent and order for commencement of the work was given on 26.11.2018. However, no action was taken by the contractor. He has not executed the work. On 21.01.2019, an amount of Rs.8,28,552/- was paid to the contractor by the 4[th] respondent Panchayat. The petitioner and another person filed Ext.P5 complaint to the Director of Vigilance and Anti-Corruption Bureau (VACB) in the matter. However, the VACB has not taken any action on Ext.P5 complaint. The 6[th] respondent and the members of the 4[th] respondent Panchayat have jointly and severally committed the offence of criminal misconduct and also other offences which are punishable under the Prevention of Corruption Act, 1988. 3. The Inspector of Police, VACB, Central Range, Ernakulam has filed a statement in the writ petition on behalf of the second respondent. W.P.(C) No.17418/2020 5 4. Heard learned counsel for the petitioner and the learned Public Prosecutor/Special Government Pleader (Vigilance) and also the learned Standing Counsel for the 4[th] respondent Panchayat. 5. The learned Standing Counsel for the 4[th] respondent Panchayat submitted that the work relating to the road mentioned in the writ petition was executed in accordance with the agreement entered into by the Panchayat and the 6[th] respondent. However, the learned counsel for the petitioner disputed the correctness of the above submission made by the learned Standing Counsel for the 4[th] respondent Panchayat. Learned counsel for the petitioner would submit that the work was executed not in respect of the road mentioned in the writ petition but in respect of some other road. 6. In the statement filed on behalf of the VACB, it is mentioned that the amount was paid to the contractor after completion of work but the paving work was done on some other area of the same road and it was against the decision taken by the Panchayat. W.P.(C) No.17418/2020 6 7. This writ petition is filed not as a public interest litigation. Therefore, the first and the third reliefs sought in the writ petition cannot be considered. 8. The main grievance of the petitioner is that the VACB has not taken any action on Ext.P5 complaint. However, the report filed by the VACB indicates that a verification with regard to the allegations in Ext.P5 complaint was done and for conducting a detailed enquiry, approval under Section 17A of the Prevention of Corruption Act has been sought from the Government. 9. What is the remedy of a person on inaction on the part of the police on the information given by him regarding the commission of any cognizable offence? Is it his remedy to rush to the High Court and to file a writ petition seeking action on the complaint given by him to the police?. 10. When information with regard to the commission of any 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 W.P.(C) No.17418/2020 7 Procedure to file a complaint before the Magistrate having jurisdiction to take cognizance of the offence/offences alleged. Instead of adopting or availing that procedure, he is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct investigation into the complaint filed by him before the police (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 v. S.Janaki: (2020) 16 SCC 728** ). 11. The Constitution Bench of the Supreme Court in **Lalita Kumari v. Government of U.P : (2014) 2 SCC 1** has held that, when information regarding a cognizable offence is received by the police officer concerned, he is bound to register a first information report. It has also been held that, in cases where there is doubt as to whether there has been commission of any cognizable offence, a preliminary enquiry shall be conducted only W.P.(C) No.17418/2020 8 to ascertain whether the information or the complaint received reveals commission of such an offence. 12. However, **Lalita Kumari** (supra) does not hold that a person aggrieved by the inaction of the police can take a straight recourse to judicial review, without availing the remedies under the Code of Criminal Procedure (See **Fr. Sebastian Vadakkumpadan v. Shine Varghese (2018 (3) KHC 590** ). 13. The entire law on the above question has been discussed and answered by this Court in **Jude Joseph v. Director General of Police (2021 (3) KHC 441).** 14. In the present case, the report filed by the Inspector of the VACB indicates that the VACB has acted upon Ext.P5 complaint filed by the petitioner. If the petitioner is not satisfied with regard to such action taken by the VACB, his remedy is to file complaint against the persons concerned in the competent jurisdictional court. If the petitioner has got any grievance against the authorities competent to grant previous approval under Section 17A of the PC Act for enquiry or investigation in the matter, he may seek appropriate reliefs against such W.P.(C) No.17418/2020 9 authorities concerned in appropriate proceedings. 15. In the above circumstances, the petitioner is not entitled to get any of the reliefs sought in this writ petition. Consequently, the writ petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.17418/2020 10 ## **APPENDIX OF WP(C) 17418/2020** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE DETAILED ESTIMATE DATED NIL PREPARED BY THE 3RD RESPONDENT** - **EXHIBIT P2 THE TRUE COPY OF THE SKETCH PLAN OF TANKCITY-VARRIKKAD ROAD DATED NIL** - **EXHIBIT P3 THE TRUE COPY OF THE RUNNING ACCOUNT BILL DATED NIL IN KPW FORM 28 ISSUED BY THE 3RD RESPONDENT** - **EXHIBIT P4 THE TRUE COPY OF THE COMPUTER EXTRACT OF THE PAYMENT DETAILS DATED NIL OF THE TANKCITY-VARIKKAD ROAD PAVING PROJECT** - **EXHIBIT P5 THE TRUE COPY OF THE COMPLAINT DATED 06.08.2019 FILED BY THE PETITIONER AND ANOTHER BEFORE THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU** - **EXHIBIT P6 THE TRUE PHOTOGRAPHS OF THE TANKLCITYVARRIKKAD ROAD DATED NIL** ## **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **P.S TO JUDGE**