P REGHUTHAMAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938** **WP(C).No. 21809 of 2004 (U) ---------------------------** **PETITIONER(S): -------------** **P REGHUTHAMAN, (DEPUTY CHIEF ENGINEER, RETIRED), 'ATHIRA', VENGERI POST, KOZHIKODE.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.P.K.VIJAYAMOHANAN** **RESPONDENT(S): --------------** **1. STATE OF KERALA THE COMMISSIONER & SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT, GOVERNMENT OF KERALA, TRIVANDRUM.** **2. K.VELAYUDHAN S/O. KUTTAPPAN, KORAKKATH HOUSE, CHELAVOOR POST, KOZHIKODE.** **3. THE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL CELL, KOZHIKODE, (CRIME NO.V.C.1/1999), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 & R3 BY PUBLIC PROSECUTOR SMT.MAYA R2 BY ADV. SRI.T.G.RAJENDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 21809 of 2004 (U) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: -----------------------EXHIBIT P1 TRUE COPY OF PETITION DTD.22.4.1994 FROM P.JAYARAJAN BEFORE THE GOVERNMENT OF KERALA. EXHIBIT P2 TRUE COPY OF G.O.(RT) NO.846/2000/PWD DTD.29.8.2000. EXHIBIT P3 TRUE COPY OF THE COMPLAINT DTD.28.1.1999 BY THE 2ND RESPONDENT BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, VIGILANCE, KOZHIKODE. EXHIBIT P4 A TRUE COPY OF THE F.I.R. IN V.C. NO.1/99 DTD.1.3.1999 OF THE VIGILANCE AND ANTI CORRUPTION BUREAU, SPECIAL CELL, KOZHIKODE. EXHIBIT P5 A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE - I, KOZHIKODE AND THE ORDER DTD.29.6.1996 THEREON IN C.MP.NO.5224/1994. EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION NO.31802/G1/94/PW & D DTD.9.11.1994 FROM THE COMMISSIONER AND SECRETARY TO GOVERNMENT TO THE CHIEF ENGINEER,P.W.D. EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION NO.B2 SPL. CELL KKD P & D 14/94/18006/94 DTD.31.10.1995 FROM THE DIRECTOR OF VIGILANCE INVESTIGATION TO THE COMMISSIONER AND SECRETARY TO GOVERNMENT, VIGILANCE DEPARTMENT. EXHIBIT P8 TRUE COPY OF THE ABSOLUTE NON LIABILITY CERTIFICATE NO.EB (1)/429/04 DTD.16.6.2004. IA.NO.15352/2004 IN WP(C) 21809/2004 -----------------------------------EXHIBIT P9 TRUE COPY OF THE SUMMONS ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE KOZHIKODE DTD.13.10.2004 TO THIS DEPONENT. EXHIBIT P9 TRUE COPY OF THE SUMMONS ISSUED FROM THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOZHIKODE IN CC.NO.41/2004 TO THE PETITIONER.** **Msv/** **-2-** **-2-** **WP(C).No. 21809 of 2004 (U) ---------------------------** **EXHIBIT P10 TRUE COPY OF THE CHARGE SHEET DTD.24.9.2004 ALONG WITH THE COMPUTATION STATEMENT FILED BY THE 3RD RESPONDENT BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE.** **EXHIBIT P11 TRUE COPY OF THE CASH FLOW STATEMENT OF THE PETITIONER FOR THE PERIOD FROM 1968-70 TO 1998-99. EXHIBIT P12 TRUE COPY OF THE CIRCULAR NO.10/97 ISSUED BY THE STATE GOVERNMENT DTD.14.3.1997.** **RESPONDENT(S)' EXHIBITS:** **------------------------** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` W.P.(C) No.21809 of 2004 ````````````````````````````````````````````````````````````` _Dated this the 18[th ] day of July, 2016_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ By challenging the FIR in VC No.1/1999 of the Vigilance and Anti-Corruption Bureau, Special Cell, Kozhikode, the petitioner has approached this Court through this writ petition. During the pendency of the writ petition, the investigation was over and final report has been filed. The court below has taken cognizance of the offences, and issued process. Subsequently, the petitioner has amended the writ petition for getting the final report and further proceedings in the matter quashed. 2. The petitioner has already been retired from WPC.21809/2004 : 2 : service as Deputy Chief Engineer, Public Works Department. The allegations were raised against him through Ext.P1 complaint as well as Ext.P3 complaint for the period in which he was working as Executive Engineer, Roads Division, Kozhikode. 3. Initially, Ext.P1 complaint dated 22.04.1994 was preferred before the Governor of Kerala by one P.Jayarajan alleging criminal misconduct and amassment of wealth disproportionate to the known sources of income of the petitioner. The said complaint was referred to the VACB. The VACB conducted a quick verification and submitted Ext.P7 quick verification report before the government. Through Ext.P7, it was reported that the enquiry disclosed that the allegation of amassment of wealth was unsubstantiated. The government has accepted Ext.P7 through Ext.P2 order. In Ext.P2 order, it has been stated as follows:- WPC.21809/2004 : 3 : _“Though the charges relating to the purchase and selling of a second hand car has been fully substantiated in evidence, taking into account the fact that he had retired from service on 30.11.1999, Government taking a lenient view in the case have decided not to proceed further against him”._ In the said circumstances, the government has decided to drop the disciplinary action initiated against the petitioner. 4. Thereafter, Ext.P3 complaint was filed by the 2[nd] respondent herein as complainant before the court below, levelling almost the same allegations and by forwarding some other allegations also, against the petitioner. On getting Ext.P3 complaint, the court below forwarded the complaint to the VACB under Section 156(3) Cr.P.C. On getting the complaint forwarded under Section 156(3) Cr.P.C., the VACB registered Ext.P4 FIR on 01.03.1999. Thereafter, the petitioner retired from service on 30.11.1999. WPC.21809/2004 : 4 : Subsequently, the matter was investigated into and finally, Ext.P10 final report was filed in the matter on 23.09.2004. Presently, the registration of Ext.P4 FIR as well as Ext.P10 final report, and Ext.P9 summons issued by the court below, are under challenge. 5. Heard learned Senior Counsel Sri.M.K.Damodaran for the petitioner, learned counsel Sri.T.G.Rajendran for the 2[nd] respondent and learned Public Prosecutor for the State. 6. Some pertinent questions of law are raised by the learned Senior Counsel for the petitioner in the matter. This is a case wherein initially, Ext.P4 FIR was challenged by the very same petitioner before this Court through Crl.M.C. No.1668/1999. In that proceedings, the petitioner had challenged the very act of the court below in forwarding Ext.P3 complaint under Section 156(3) Cr.P.C. by taking up an argument that instead of forwarding the complaint WPC.21809/2004 : 5 : directly for investigation under Section 156(3) Cr.P.C., the court below ought to have ordered a preliminary enquiry which was mandatory. In the said Crl.M.C., it seems that this Court had approved the action of the court below in forwarding the complaint under Section 156(3) Cr.P.C., and found that even without a preliminary enquiry, FIR can be registered on getting the complaint referred under Section 156(3) Cr.P.C. The said decision is reported as _**Raghunathan v. State of Kerala** [2001 (3) KLT 444]._ 7. This Court, while entertaining the matter, had raised a doubt whether the decision rendered by this Court in _**Raghunathan** (supra)_ will operate as _res judicata_ or _constructive res judicata_ as far as the present writ petition is concerned. The learned Senior Counsel by relying on the decision in _**Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and Others** [AIR 1975 SC 1002]_ followed in _**Devendra and Others v. State**_ WPC.21809/2004 : 6 : _**of Uttar Pradesh and Another** [(2009) 7 SCC 495]_ , emphatically argued that when change of circumstance is there, the earlier decision in the Crl.M.C. will not operate as _res judicata_ in the present matter, since much waters have flown under the bridge after the decision in the Crl.M.C. It has also been argued on the basis of _**Devendra** (supra)_ that the principles of _res judicata_ have no application in a criminal proceeding and that the principles of _res judicata as_ adumbrated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this nature. 8. This Court respectfully disagree with the aforesaid argument highlighted by the learned Senior Counsel. This Court had occasion to consider the said question while dealing with Crl.R.P. No.1512/2015 of this Court. The said question relating to application of principles of _res judicata_ and _constructive res judicata_ was considered WPC.21809/2004 : 7 : elaborately by the Apex Court in _**Bhagat Ram and another v. State of Rajasthan and another** [(1972) 2 SCC 466],_ which was followed by His Lordship Justice H.R.Khanna in _**State of Rajasthan v. Tarachand Jain** [AIR 1973 SC 2131]_ . It was repeatedly held that principles of _res judicata_ and _constructive res judicata_ are squarely applicable to criminal proceedings also. The decisions in _**Bhagat Ram** (supra)_ and _**Tarachand Jain** (supra)_ were clearly approved by the Constitution Bench of the Apex Court in _**A.R.Antulay v. R.S.Nayak and another** [AIR 1988 SC 1531]_ . When the said position was clearly approved by the Constitution Bench of the Apex Court, it is no more open for any further debate. 9. It seems that the very same questions involved in this matter were mooted before this Court by the petitioner through Crl.M.C. No.1668/1999. The same were found against. It is true that the investigation continued in the WPC.21809/2004 : 8 : matter and it took time till 2004 to file the final report in the matter. What are the changes of circumstances happened in the meantime have not been referred to by the petitioner. Of course, in the course of time, some other new circumstances might have arisen; but in the absence of specific pleadings regarding those change of circumstances, it cannot be said that the decision in _**Superintendent and Remembrancer of Legal Affairs** (supra)_ can be attracted to the facts of the present case. 10. When the decision in Crl.M.C. No.1668/1999 through _**Raghunathan v. State of Kerala** [2001 (3) KLT 444]_ was rendered by another learned Single Judge of this Court, this Court is of the view that in case there is something to distinguish the said decision, such an attempt can be made by this Court. 11. The learned Senior Counsel for the petitioner is placing heavy reliance on _**Anil Kumar v. Aiyappa** [(2013)_ WPC.21809/2004 : 9 : _10 SCC 705]_ , which was followed by the three Judges' Bench of the Apex Court in _**Ramdev Food Products Private Limited v. State of Gujarat** [(2015) 6 SCC 439]_ . It seems that in _**Anil Kumar** (supra)_ , the Apex Court had made an endevour to deal with the application of mind by a Magistrate to invoke the power under Section 156(3) Cr.P.C. as well as Section 200 Cr.P.C. 12. This Court is of the view that the scope of application of mind while exercising the power under Section 156(3) Cr.P.C. and while exercising the power of inquiry under Section 200 Cr.P.C. is totally different. The application of mind under Section 156(3) Cr.P.C. has to be made by a Magistrate, who is empowered to take cognizance of the offence under Section 190(1)(a) Cr.P.C. At the same time, the application of mind required to take cognizance under Section 190(1)(a) Cr.P.C. and the application of mind for invoking the power under Section 156(3) Cr.P.C. are totally WPC.21809/2004 : 10 : different. Under Section 156(3) Cr.P.C., any Magistrate empowered under Section 190 Cr.P.C. may order such an investigation as mentioned in the earlier provisions. Then, on going through Section 190(1)(a) Cr.P.C., it is evident that a Judicial First Class Magistrate may take cognizance of any offence upon receiving a “complaint of facts which constitute such offence”. For taking cognizance of an offence under Section 190(1)(a) Cr.P.C., the complaint should be one which sets forth facts which constitute such offence. Such a satisfaction is required for taking cognizance of the offence on receiving a complaint. At the same time, when applying the mind to invoke the power under Section 156(3) Cr.P.C., the Magistrate is not taking cognizance of offence. Section 200 Cr.P.C. comes only on the application of mind by the Magistrate under Section 190(1)(a) Cr.P.C. and while taking cognizance of the offences. Section 200 Cr.P.C. is, in fact, an exercise of inquiry by the Magistrate. Therefore, the WPC.21809/2004 : 11 : application of mind for invoking the power under Section 200 Cr.P.C. and Section 156(3) Cr.P.C. are totally different. 13. When the Magistrate is not deciding to take cognizance of the offence at the stage of Section 156(3) Cr.P.C., the application of mind is only limited to certain aspects like whether it is a complaint within the meaning of Section 2(d) Cr.P.C. and that whether the complaint deals with an offence, or whether the complaint is in anyway barred, or technically defective etc. The degree of application of mind to invoke the power under Section 156 (3) Cr.P.C. is much lesser than the degree of application of mind require to invoke the power under Sections 190(1)(a) Cr.P.C., 200 Cr.P.C., etc. If a cognizable offence comes to the notice of the Magistrate while applying his mind on it, instead of forwarding the matter under Section 156(3) Cr.P.C., the Magistrate is empowered to take cognizance directly under Section 190(1)(a) Cr.P.C., by proceeding to WPC.21809/2004 : 12 : _Chapter XV_ Cr.P.C. 14. In paragraph 120.1 of the decision in _**Lalita Kumari v. Government of Uttar Pradesh and Others** [(2014) 2 SCC 1],_ the Apex Court held that 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. At the same time, the Apex Court has held that in some types of offences, a preliminary inquiry has to be conducted. Some illustrations are given in paragraph 120.6 as matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, cases where there is abnormal delay/latches in initiating criminal prosecution, etc. The Apex Court has made it clear that the aforesaid are only illustrative and not exhaustive. 15. In the matter of corruption cases, presently, it is incumbent that, instead of registering a FIR, a preliminary WPC.21809/2004 : 13 : inquiry has to be conducted. The findings entered by the Apex Court in paragraph 120.4 of _**Lalita Kumari** (supra)_ clearly show that the police officer cannot avoid his duty of registering a FIR, if cognizable offence is disclosed. It goes without saying that in the matter of a corruption case, when a preliminary inquiry is ordered and the same is conducted by a police officer, he cannot avoid his duty of registering the FIR in case a cognizable offence is revealed. Such police officer conducting a quick verification or preliminary inquiry, as the case may be, need not wait for further orders from the concerned court for the registration of the FIR. Even in the course of a quick verification or preliminary inquiry, if it comes to the notice of the concerned police officer that a cognizable offence is revealed, he shall straight away register the FIR. 16. Even in cases wherein cognizable offences have been revealed, the Magistrate can have recourse to two WPC.21809/2004 : 14 : courses of action. Either the Magistrate can forward the matter for investigation under Section 156(3) Cr.P.C., or he can apply his mind and to take cognizance of the offence under Section 190(1)(a) Cr.P.C. by proceeding to _Chapter XV_ Cr.P.C. In corruption cases, wherein the sanction under Section 19 of the Prevention of Corruption Act, or in other cases wherein the sanction under Section 197 Cr.P.C. is required for taking cognizance of the offences, the second course is not possible. Therefore, in those cases, it is not possible for a court to take cognizance of the offence by applying its mind under Section 190(1)(a) Cr.P.C. by proceeding to _Chapter XV_ Cr.P.C. In those cases, necessarily, such Magistrate or Special Court has to forward the complaint for investigation under Section 156(3) Cr.P.C., and presently, as per the guidelines of the Apex Court, necessarily, such Special Court has to order a quick verification or preliminary inquiry. WPC.21809/2004 : 15 : 17. The learned Senior Counsel has pointed out that in this particular case, without ordering a quick verification or preliminary inquiry, the court below had straight away directed the registration of a FIR under Section 156(3) Cr.P.C. and the investigation. It is argued that in the light of the decision of the Apex Court in _**P.Sirajuddin etc. v. State of Madras etc.** [AIR 1971 SC 520]_ , the court below ought to have ordered a quick verification or preliminary inquiry. The decision in _**P.Sirajuddin** (supra_ ) has been approved by the Constitution Bench in _**Lalita Kumari**_ (s _upra_ ). 18. It is true that such a course of action was not resorted to by the court below and the court below, without taking note of _**P.Sirajuddin** (supra_ ), had directed for the registration of the FIR and the investigation, by having recourse to Section 156(3) Cr.P.C. The learned counsel for the 2[nd] respondent has pointed out that in the earlier circumstance, when the government was dealing with WPC.21809/2004 : 16 : Ext.P7 report on Ext.P1, the government was dealing with the question of disciplinary actions against the petitioner. At that time, what was in the contemplation of the government was only with regard to the departmental action by way of disciplinary proceedings and nothing more. 19. When Ext.P7 report did not invite judicial scrutiny by the court below, the complainant in Ext.P1 did not get an opportunity to prefer an objection to Ext.P7 or a protest complaint in the matter for inviting the interference by the court below to have an order under Section 156(3) Cr.P.C. In this particular case, the investigation was over and final report was filed on 23.09.2004. The court below has applied its mind on the final report filed under Section 173(2) Cr.P.C., and has taken cognizance of the offences, including the offence under the Prevention of Corruption Act. Now, at this stage, this Court cannot go back to the stage of the FIR and to say that the FIR has to be quashed for want of a WPC.21809/2004 : 17 : quick verification or preliminary inquiry, even when the investigating officer has completed the investigation and found that charges are liable to be levelled against the petitioner, and whereby he has chosen to file the final report. 20. Apart from the above, not only that the final report has been filed in the matter; but also the court below has taken cognizance of the offences involved, as is evident from Ext.P9. Ext.P9 is the summons issued to the petitioner. Ext.P9 is also under challenge here. It may be possible for the petitioner at this stage to challenge Ext.P9 on other grounds, if any available, and not on the ground of the want of a quick verification or preliminary inquiry. The challenge against Ext.P9 is on the ground that the court below was not authorised or empowered by law to take cognizance of the offences in the absence of a quick verification or preliminary inquiry as mandated by the Apex Court, which according to the petitioner, has allegedly WPC.21809/2004 : 18 : rendered the final report illegal. 21. In case of the above challenge against Ext.P9, at the most, the same could only be an irregularity, which does not vitiate the proceedings within the meaning of Section 460(e) Cr.P.C. As per Section 460(e) Cr.P.C., if any Magistrate is empowered by law to take cognizance of the offence under Clause(a) or Clause(b) of Sub-section (1) of Section 190, it could only be an irregularity, which does not vitiate the proceedings. Here, the court below has applied its mind and has taken cognizance of the offence under Section 190(1)(b) Cr.P.C. on a police report filed under Section 173(2) Cr.P.C. In such case, at the most, it could only be an irregularity, which does not vitiate the proceedings. 22. The learned Senior Counsel for the petitioner has pointed out that item No.11 in the verification of wealth made by the investigating officer is not correct, and even though WPC.21809/2004 : 19 : the said amount is accounted in the name of the petitioner, the said Flat was purchased by the daughter and son-in-law of the petitioner in their name with the funds raised by them from their sweat and earnings and the same could not have been accounted in the name of the petitioner. It has been pointed out that in case the said item is properly avoided, there cannot be a charge for amassment of wealth as against the petitioner. Of course, in such case, those aspects can be pointed out before the court below at the stage of Section 239 Cr.P.C. for seeking a discharge, in case, he is entitled to. This Court has not made any observations regarding the merits of the allegations. Such matters are entirely left to the court below. 23. This Court is satisfied that, with liberty to the petitioner to take up all his claims and challenges on the final report or the documents sent along with it, except the challenge on the ground of absence of quick verification or WPC.21809/2004 : 20 : preliminary inquiry prior to the registration of the FIR, at the stage of Section 239 Cr.P.C., or at appropriate stage, the writ petition has to be dismissed. In the result, this Writ Petition (Civil) is dismissed with liberty to the petitioner to move the court below under Section 239 Cr.P.C., or at appropriate stage of the case. In case of a petition under Section 239 Cr.P.C., the court below shall consider those aspects on merits, and pass appropriate orders in accordance with law. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/dsv/19/07 _// True Copy //_ _PA to Judge_