Moideen Kunhi v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943** ## **WP(C) NO. 24388 OF 2020** ## **PETITIONER:** MOIDEEN KUNHI AGED 55 YEARS S/O.SOOPI, RESIDING AT MARKAZ MANZIL, RAILWAY STATION ROAD, UPPALA (P.O.), KASARAGOD DISTRICT, PIN-671322. BY ADVS. JAWAHAR JOSE SRI.K.A.LALAN ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN695001. 2 THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU, P.M.G., VIKAS BHAVAN (P.O.), THIRUVANANTHAPURAM, PIN695033. 3 THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, NORTHERN RANGE, THONDAYAD (P.O.), KOZHIKODE, PIN-673017. 4 THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, KASARAGOD UNIT, VIDYANAGAR KASARAGOD, PIN-671123. SMT.S.L.SYLAJA, PUBLIC PROSECUTOR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON 03.09.2021 DELIVERED THE FOLLOWING: W.P.(C) No.24388/2020 2 ## **R.NARAYANA PISHARADI, J ************************ W.P.(C).No.24388 of 2020 ------------------------------------Dated this the 3[rd] day of September, 2021 ------------------------------------------- ## **J U D G M E N T** The reliefs sought in this writ petition are as follows: _“i. Call for the records leading to Exhibit-P1 and issue a writ in the nature of certiorari, quashing Exhibit-P1, to the extent it recommended for the dropping of further proceedings._ _ii. Issue a writ in the nature of mandamus, directing the respondents 1 and 2, to further proceed with the investigation, by registering F.I.R under Section 154 of the Criminal Procedure Code, based on Exhibit-P1 report._ _iii. Declare that the investigation conducted by the Inspector of the Vigilance and Anti-Corruption Bureau is tainted with malafides, in so far as it recommends for the dropping of further proceedings._ _iv. Grant such other order or direction as this Hon'ble Court may deem fit and necessary, in the facts and circumstance of the case.”_ W.P.(C) No.24388/2020 3 2. The averments in the writ petition, on the basis of which the above reliefs are sought, are the following: The petitioner made a complaint to the Vigilance and Anti-Corruption Bureau (VACB) alleging that the owner of his neighbouring property constructed a commercial building without obtaining the required building permit and it curtailed the right of enjoyment of his property by the petitioner. The VACB conducted a detailed enquiry on the complaint made by the petitioner. In the enquiry, it was found that the building was constructed by the owner of the neighbouring property not in accordance with the approved plan and permit. It was also found that the officers of Mangalpadi Grama Panchayat together with the Divisional Officer of the Fire and Rescue Department were responsible for the illegal construction of the building. However, the Inspector who conducted the enquiry recommended dropping the proceedings for the reason that a writ petition (W.P.(C) No.27202/2016) filed by the petitioner was pending in this Court. W.P.(C) No.24388/2020 4 3. The respondents have not filed any counter statement/counter affidavit. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor. 5 **.** The petitioner has not cared to produce in the writ petition copy of the complaint made by him to the VACB. The very basis of the writ petition is therefore shaken and the writ petition is liable to be dismissed for this reason alone. 6. Ext.P1 is the copy of the report filed by the Inspector of Police, VACB after conducting a surprise check. It is stated in the writ petition that the Inspector of Police recommended dropping the proceedings in view of the pendency of W.P.(C) No.27202/2016 before this Court. This statement made in the writ petition is not correct. What is stated in Ext.P1 report is that, though irregularities have been found out in the construction of the building, no recommendation is made for taking action against any officer since writ petition was pending before this Court with regard to such irregularities and further W.P.(C) No.24388/2020 5 proceedings could be taken after the disposal of the writ petition by this Court. 7. As rightly pointed out by the learned Public Prosecutor, the action taken by the VACB on the complaint made by the petitioner was not to conduct a preliminary enquiry or quick verification but only to conduct a surprise check. No preliminary enquiry as such was conducted as stated in the writ petition. 8. Learned counsel for the petitioner submitted that corrupt practices have been committed by the officers concerned in the matter of issuing completion certificate to the building constructed in the neighbouring property of the petitioner but no action has been taken by the VACB on the complaint made by the petitioner in that regard. 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 a 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? W.P.(C) No.24388/2020 6 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 Procedure to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence. 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 W.P.(C) No.24388/2020 7 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 to ascertain whether the information or the complaint received reveals commission of such an offence. 12. **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 question has been discussed and answered by this Court in **Jude Joseph v. Director General of Police** ( **2021 (3) KHC 441** ). 14. In **Michael Varghese v. Pinarayi Vijayan : 2020 SCC OnLine Ker 2794** , a Division Bench of this Court has held as follows: _“However intricate the magnitude and the nature of the offences alleged, the Code of Criminal_ W.P.(C) No.24388/2020 8 _Procedure has envisaged a procedure to be followed and, therefore, the same cannot be given a go-by, and a writ petition is not the proper remedy”._ 15. In **Subramaniam** (supra), the Apex Court observed as follows: _“In these circumstances, we would allow the present appeal and set aside the direction of the High Court for registration of the FIR and investigation into the matter by the police. At the same time, our order would not be an impediment in the way of the first respondent filing documents and papers with the police pursuant to the complaint dated 18/09/2008 and the police on being satisfied that a criminal offence is made out would have liberty to register an FIR. It is also open to the first respondent to approach the court of the metropolitan magistrate if deemed appropriate and necessary”._ 16. The discussion above would show that none of the reliefs sought in this writ petition can be granted. 17. Consequently, the writ petition is dismissed. The petitioner is at liberty to pursue appropriate remedies under the Code of Criminal Procedure with regard to his grievance, if any, W.P.(C) No.24388/2020 9 on the commission of any cognizable offence committed by any person in relation to the construction of the building which is referred to in the writ petition. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.24388/2020 10 ## **APPENDIX OF WP(C) 24388/2020** PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE REPORT DATED 17.1.2017 WHICH THE PETITIONER OBTAINED UNDER THE RIGHT TO INFORMATION ACT, AS PER COMMUNICATION DATED 4.11.2019. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 30.11.2017 IN W.P.(C) NO.27202/2016. RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE