V.T. Mohanan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943 WP(C) NO. 19044 OF 2021** ## **PETITIONER:** **V.T.MOHANAN AGED 58 YEARS S/O. V.J THANKAPPAN, T.C 14/908(1), CHETHANA, KUMARAPURAM, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM 695 011** **BY ADVS. G.BIJU** **S.JAYAPRAKASH (MADAVOOR) V.A.VINOD AMBADI MURALI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 SECRETARY GOVERNMENT OF KERALA, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **3 THE SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **4 THE DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU, VIGILANCE HEAD OFFICE, PMG, THIRUVNANTHAPURAM, PIN 695 033** - **5 DHARMARAJ RASALAM S/O. ALBERT, BISHOP HOUSE, LMS COMPOUND, PALAYAM P.O, THIRUVANANTHAPURAM 695 033 (CHAIRMAN, DR. SMCSI MEDICAL COLLEGE, KARAKONAM. BY ADV SMT.REKHA S, SR.PP, SMT.SYLAJA, PP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON 02.11.2021 DELIVERED THE FOLLOWING:** W.P.(C) No.19044/2021 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J ************************ W.P.(C) No.19044 of 2021 ------------------------------------Dated this the 2[nd] day of November, 2021 ------------------------------------------- ## **J U D G M E N T** When a preliminary inquiry, as contemplated in **Lalita Kumari v. Government of U.P : AIR 2014 SC 187** , is conducted by a police officer, is it mandatory that the inquiry shall be completed within a period of seven days? 2. The petitioner is said to be a member of the Church of South India, a religious body of the holding company by name Church of South India Trust Association. He made Ext.P6 complaint to the fourth respondent, the Director of Vigilance and Anti-Corruption Bureau (VACB), alleging commission of corrupt practices and criminal misconduct in connection with the admission of students to MBBS course in the Dr.Somervell Memorial Medical College at Karakonam in Thiruvananthapuram W.P.(C) No.19044/2021 3 District. 3. The grievance of the petitioner is that, the VACB has not conducted any preliminary enquiry inspite of the Government passing an order in that regard and that no F.I.R has also been registered against the persons concerned. Therefore, the petitioner has filed this writ petition under Article 226 of the Constitution of India, praying that a writ of mandamus may be issued to the Director, VACB, directing him to complete the verification of Ext.P6 complaint and to register F.I.R on that complaint forthwith. 4. Learned Government Pleader/Public Prosecutor has appeared for respondents 1 to 4. No notice was ordered to be issued to the fifth respondent. 5. Heard learned counsel for the petitioner and the learned Public Prosecutor. 6. The Deputy Superintendent of Police, VACB, Southern Range has filed a statement with regard to the matters mentioned in the writ petition. It is mentioned in this statement W.P.(C) No.19044/2021 4 that the first petition filed by the petitioner was received on 15.02.2020. This statement is factually incorrect. Ext.P7 letter dated 19.10.2019 sent by the Director, VACB to the Additional Chief Secretary, Vigilance Department would clearly show that the petitioner had made Ext.P6 complaint dated 08.10.2019 to the Director, VACB and it was received without any delay in his office. 7. As per Ext.P8 letter, the VACB had informed the petitioner that the Government had ordered vigilance enquiry on the complaint made by him but no F.I.R has been registered. 8. In the statement dated 22.09.2021 filed by the Dy.S.P, Southern Range, it is mentioned that he has completed the enquiry and prepared a tentative report which has to be scrutinised by his superior officers. 9. Ext.P6 complaint is dated 08.10.2019. Ext.P7 letter dated 19.10.2019 would show that the Director, VACB had received Ext.P6 complaint in his office immediately after the date 08.10.2019. The information given to the petitioner by the VACB W.P.(C) No.19044/2021 5 as per Ext.P8 letter would show that the Government had ordered vigilance enquiry on the complaint made by the petitioner. Even after the lapse of two years, the police officer concerned has not taken any decision on the complaint. 10. In **Lalita Kumari** (supra), the Constitution Bench of the Supreme Court had made the following conclusions/directions: ## “In view of the aforesaid discussion, we hold: (i) 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. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in W.P.(C) No.19044/2021 6 brief for closing the complaint and not proceeding further. (iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) xxxxxxxxxxxxxxxxxx. (vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. (viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above”. W.P.(C) No.19044/2021 7 11. The direction given as item (vii) above in **Lalita Kumari** (supra) gives an unmistakable impression that preliminary inquiry should be completed within a period of seven days. However, very recently, in **State of Jammu & Kashmir v. Dr. Saleem Ur Rehman** (Judgment dated 29.10.2021 in Criminal Appeal No.1170 of 2021), the Supreme Court did not accept the contention that preliminary inquiry, in all cases, shall be completed within a period of seven days. In that case, Rule 3.16 of the Jammu & Kashmir Vigilance Manual, 2008 came up for consideration before the Apex Court. This Rule provided that, when a complaint or information discloses adequate material indicating misconduct on the part of public servant which needs a detailed verification prior to registration of a case under Section 154 Cr.P.C, a preliminary inquiry can be ordered and that the preliminary inquiry should normally be completed in a period of six months. The Apex Court held that this Rule can be said to be in consonance with the observations and the law laid down in the case of **Lalita Kumari** (supra). The Apex Court has explained the W.P.(C) No.19044/2021 8 ## position as follows: “12. On a close reading of Rule/Clause 3.16, it can be seen that even the same can be said to be in the interest of the accused and/or a person against whom the allegations are made and to safeguard the accused against frivolous complaints. As per Clause 3.16 only after the Preliminary Enquiry is conducted and there is a prima facie case found, an FIR is required to be registered. Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3.16 that a PE should be completed normally within a period of six months. It is the case on behalf of the respondent and even as observed and held by the High Court in the impugned judgment and order as per the law laid down by this Court in the case of Lalita Kumari (supra), a detailed investigation into the allegations on merits is not required by holding Preliminary Enquiry and that such enquiry is to be completed within a period of 7 days is concerned, it is to be noted that in the case of Lalita Kumari (supra), it is not held that if the Preliminary Enquiry is not completed within a period of 7 days, the entire criminal proceedings would be void and the same are to be quashed. W.P.(C) No.19044/2021 9 13. So far as the submission on behalf of the respondent that in the present case by conducting a Preliminary Enquiry, detailed investigation has been made and only thereafter the FIR is registered and that at the time of Preliminary Enquiry, investigation is not permissible since the FIR is lodged is concerned, the aforesaid submission seems to be attractive but has no substance. While holding a Preliminary Enquiry under Clause 3.16, whatever is conducted will be in the form of enquiry into the allegations to consider whether any prima facie case is made out or not which requires further investigation after registering the FIR or not. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only. Whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the code of criminal procedure which can only be after registration of the FIR. Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which, as observed W.P.(C) No.19044/2021 10 hereinabove, can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed. There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires”. 12. The above decision of the Supreme Court in **Dr. Saleem Ur Rehman** (supra) gives the indication that it is not mandatory in all cases to complete the preliminary inquiry within a period of seven days. 13. In the present case, the statement filed by the Dy.S.P, Southern Range, VACB discloses that he has completed the enquiry and he has also prepared a tentative report of enquiry but it needs approval by his superior officers. Therefore, it is W.P.(C) No.19044/2021 11 only proper to give a direction to the Director of the VACB to take appropriate steps to obtain the report from the Dy.S.P immediately and take a decision thereon within a period of one month from today and to communicate the decision to the petitioner. 14. Consequently, the Director of the VACB (the fourth respondent) is directed to obtain the report of enquiry from the Dy.S.P, Southern Range, VACB immediately and to take a decision thereon within a period of one month from today. He shall also intimate the decision taken on the report of enquiry to the petitioner within a period of fourteen days from the date of taking the decision. The writ petition is disposed of with the above directions. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(C) No.19044/2021 12 ## **APPENDIX OF WP(C) 19044/2021** ## **PETITIONER'S EXHIBITS** **Exhibit P1** **TRUE COPY OF THE REQUEST SUBMITTED BY THE 4TH RESPONDENT BEFORE THE GOVERNMENT DATED 17-06-2018** **Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF ORDER APPROVING THE SEAT MATRIX ISSUED BY THE 2ND RESPONDENT DATED 23-06-2018** **Exhibit P3 TRUE COPY OF THE REQUEST SUBMITTED BY THE 4TH RESPONDENT TO THE HON'BLE CHIEF MINISTER OF KERALA DATED 25-06-2018 Exhibit P4 TRUE COPY OF THE FILE MOVEMENT REGISTER ISSUED TO THE PETITIONER UNDER RIGHT TO INFORMATION ACT FROM THE HEALTH AND FAMILY WELFARE DEPARTMENT** **Exhibit P5 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 25-06-2018 Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 8-102019 SUBMITTED BY PETITIONER BEFORE THE 3RD RESPONDENT.** **Exhibit P7 TRUE COPY OF LETTER DATED 19-10-2019 ISSUED BY THE 3RD RESPONDENT. Exhibit P8 TRUE COPY OF LETTER DATED 22-07-2021 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL** ## **TRUE COPY** **P.S.TO JUDGE**