Rajeev Lal Chunaapuzhayil v. Travancore Devaswom Board and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR MONDAY, THE 1ST DAY OF DECEMBER 2014/10TH AGRAHAYANA, 1936 WP(C).No. 6014 of 2014 (B) --------------------------- PETITIONER: ------------------ RAJEEV LAL CHUNAAPUZHAYIL, KALLAR P.O., PIN:685 552. BY ADVS.SRI.D.AJITHKUMAR SRI.D.JEEVAN RESPONDENTS: ---------------------- 1. THE TRAVANCORE DEWASWOM BOARD NANTHANCODE, REPRESENTED BY ITS SECRETARY THIRUVANANTHAPURAM, PIN:695 003. 2. THE SECRETARY TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM, PIN:695 003. ## 3. DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM, PIN:695 003. 4. V.S.JAYAKUMAR FINANCE AND ACCOUNTS OFFICER TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM, PIN:695 003. 5. FINANCE AND ACCOUNTS OFFICER TRAVANCORE DEVASWOM BOARD, NANTHANCODE THIRUVANANTHAPURAM, PIN:695 003. 6. EXECUTIVE OFFICER TRAVANCORE DEVASWOM BOARD, SABARIMALA-685533. 7. DIRECTOR VIGILANCE AND ANTI CORRUPTION BUREAU THIRUVANANTHAPURAM-695 003. 8. DY. SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU PATHANAMTHITTA-689 645. R8,R7 BY SR. GOVERNMENT PLEADER SRI.C.S.MANILAL R BY SRI.KRISHNA MENON, SC, TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-122014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6014 of 2014 (B) --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1: TRUE COPY OF THE RELEVANT PORTION OF THE VIGILANCE REPORT DATED 27.4.2006. EXHIBIT P2: TRUE COPY OF THE ORDER DATED 30.5.2006 OF THIS HON'BLE COURT IN THE MATTER OF INTERIM REPORT ON AUDIT OF ACCOUNTS OF SABARIMALA DEVASWOM-1167 ME. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 23.10.2008 IN DBAR NO.1/1993 A/W REPORT NO.74 OF THIS HON'BLE COURT. EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 24.1.2014 SUBMITTED BY PETITIONER BEFORE THE FIRST RESPONDENT. RESPONDENT(S)' EXHIBITS --------------------------------------- NIL /TRUE COPY/ VPS PS TO JUDGE ## **P.N.RAVINDRAN & P.B.SURESH KUMAR, JJ.** **--------------------------W.P.(C) No.6014 of 2014 -------------------------Dated this the 1[st] day of December, 2014** ## **J U D G M E N T** ## _**P.N.Ravindran, J.**_ The prayer in this writ petition is to issue a writ in the nature of mandamus commanding respondents 1 to 3, 7 and 8 to take further action pursuant to Ext.P1 Vigilance Enquiry Report and Ext.P2 order of this Court, against the 4[th] respondent. It is alleged that though after taking note of Ext.P1 Vigilance Enquiry Report wherein the Investigating Officer had recommended that the allegation against the fourth respondent could not be probed during the course of the vigilance enquiry on account of the fact that the Travancore Devaswom Board had not produced the Devaswom Mess Register of Pamba for the year 2003-2004 (1179ME) this Court had by Ext.P2 order passed on 30.5.2006 directed the Director of Vigilance or other appropriate officer to register a crime and commence investigation in accordance with law, nothing further has been done to probe into the allegations levelled against the fourth respondent, the former Administrative Officer of Pamba during the year 2003-2004 (1179ME). The petitioner has alleged that notwithstanding the statement in the vigilance enquiry report that the Mess Register was not made available by the Travancore Devaswom Board, the Board has not taken steps to recover the Mess Register and the Vigilance and Anti Corruption Bureau has not taken steps W.P.(C) No.6014/2014 2 to search and seize the Mess Register. 2. The Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, who is the 8[th] respondent in the writ petition has sworn to a counter affidavit dated 8.7.2014. In paragraph 7 thereof he has stated that the allegation against the fourth respondent was not probed in the enquiry since the concerned mess register was missing. Thereafter, the Superintendent of Police, Vigilance and Security, Travancore Devaswom Board has sworn to an affidavit dated 21.10.2014. Paragraphs 2 and 3 thereof, which are relevant for the purpose of this case, are extracted below for easy reference. _2. This additional affidavit is filed in addition to and in amplification of the counter affidavit already filed by the 8[th] respondent Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau. The writ petition was filed with a solitary prayer directing the respondents to take further action against the 4[th] respondent based on Exhibits P1 and P2. The petitioner produced Exhibit P1 Vigilance Enquiry Report and also Exhibit P2 order of this Court on the issue in question. It is submitted that at the relevant time when the Vigilance Enquiry was ordered and commenced it was I who conducted the Enquiry ad submitted Exhibit P1 report. The enquiry was conducted based on the direction earlier issued by this Court and the same was meticulously and very honestly done with the minutest details ranging from statement of witness from Witness No.1 to 37 and procured document 1 to 40. The recommendations after the enquiry report, as per the order of this Court was directed to be submitted directly to the Court instead of submitting it to Director of vigilance as it is usually done. In view of the peremptory direction of this Court I have submitted the report in a sealed cover before this Court and the findings and recommendation were in toto accepted by this Court. As far as allegations as against the 4[th] respondent is concerned, further actions could not be taken in so far as there are no concrete materials or evidence surfacing prima facie commission of any offence. It is submitted that even though in my recommendation vide item No.4 I have suggested to_ W.P.(C) No.6014/2014 3 _tag on the case of the 4[th] respondent at the time when the other connected cases are being investigated. It appears that despite the fact that the above exercise was undertaken, no further materials are forthcoming obviously thereby the investigator was justified in not proceeding against the 4[th] respondent. Therefore, as already indicated materials are scanty for a prima facie case disclosing any offence during enquiry and that the state of affairs is still continues to be so._ _3. It is submitted that the petitioner was not entitled in approaching this Court in these proceedings to get the criminal law in motion against the 4[th] respondent. When the vigilance enquiry is over followed by a report, submitted by the Enquiry Officer, that too in the case where no material are surfaced to justify further proceedings and in under such a case, the remedy of the petitioner is either to file a private complaint under Section 200 of the Cr.P.C. or can take the conventional remedy of approaching the Court for further investigation if any, as required under section 173(8) of the Code of Criminal Procedure. The Honourable Apex Court in_ _**Sakiri Vasu v. State of U.P.** in 2008 (1) KLT 724 (SC) it was succinctly declared that the Magistrate has all the necessary powers for ensuring proper investigation including power to order registration of FIR. It was also further held that ordering of proper investigation is a matter which exclusively comes within the domain of the Magistrate and the said power is very wide and includes all such incidental powers as are necessary for ensuring proper investigation. A writ petition under Article 226 therefore is not a substituted remedy for the petitioner to vindicate his so called rights. The petitioner is also having the alternative remedy of approaching either the Magistrate for further investigation or he can directly approach the concerned Court for taking cognizance directly on the basis of the complaint. That being the legal position the present writ remedy itself is totally misconceived and sans merit. Therefore, this writ petition is liable to be dismissed. Prayed accordingly._ 3. The deponent has averred that when the vigilance enquiry was conducted by him, the mess register in question was not available and that he had in his report recommended that the complaint against the fourth respondent can be enquired into when investigation of the crimes to be W.P.(C) No.6014/2014 4 registered in respect of the other allegations against other officers is in progress. He has also stated that despite the fact that the above exercise was undertaken, no further materials are forthcoming and that the materials are scanty and prima facie do not disclose the commission of any offence by the fourth respondent. It is also averred that as the vigilance enquiry is over and a report has been submitted by the enquiry officer, if the petitioner is aggrieved his remedy lies in moving the criminal court as held by the Apex Court in **Sakiri Vasu v. State of U.P.** (2008 (1) KLT 724 (SC). 4. We heard Sri.D.Ajith Kumar, learned counsel appearing for the petitioner, Sri.V.Krishna Menon, learned standing counsel appearing for the Travancore Devaswom Board and Sri.C.S.Manilal, learned Senior Government Pleader appearing for the State of Kerala. We have also gone through the pleadings and the materials on record. The contention of the petitioner is that though this Court had by Ext.P2 order directed a crime to be registered and investigation to be conducted, the investigating agency has not taken steps in the matter. It is evident from Ext.P1 Vigilance Enquiry Report as also Ext.P2 order of this Court that in respect of allegation No.4, with which allegation we are concerned, the investigating officer had only recommended that sanction may be granted to conduct investigation along with the investigation to be registered against suspect officers 1, 2 and 3 in respect of the allegations 1, 2 and 3 respectively and this Court had not directed the registration of crime against the fourth respondent. The deponent of the affidavit dated 21.10.2014 has averred that though a crime was registered in 5 W.P.(C) No.6014/2014 respect of allegations 1 to 3 against suspect officers 1 to 3 and an investigation was also undertaken in respect of the aforesaid crime, no materials were forth coming to implicate the fourth respondent. In such circumstances, we are of the opinion that if the petitioner is aggrieved by the vigilance enquiry and the result thereof, his remedy lies in moving the competent criminal court as held by the Apex Court in **Sakiri Vasu v. State of U.P.** (supra) **.** We therefore find no good grounds to entertain the writ petition to grant the reliefs prayed for. The writ petition fails and is accordingly dismissed with the observation that dismissal of the writ petition will not stand in the way of the petitioner from moving the competent criminal court as held by the Apex Court in **Sakiri Vasu v. State of U.P.** (supra). ## **P.N.RAVINDRAN,** ## **(JUDGE)** **P.B.SURESH KUMAR, (JUDGE)** vps W.P.(C) No.6014/2014 6 W.P.(C) No.6014/2014 7 W.P.(C) No.6014/2014 8 W.P.(C) No.6014/2014 9