IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35012 of 2009(Y)
1. VIJU P.V., AGED 33 YEARS,
... Petitioner
Vs
1. CENTRAL BUREAU OF INVESTIGATION,
... Respondent
2. SUPERINTENDENT OF POLICE,
3. MRS.S.SHYNI IPS,
4. MR.S.SREEJITH IPS,
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :23/03/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P.(C).No. 35012 of 2009 V
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Dated this the 23rd day of March, 2010
JUDGMENT
Joseph Francis, J.
This Writ Petition is filed seeking the following reliefs:
“1) To issue a writ of certiorari or any other
writs, directions or orders calling for all the
records leading upto Ext.P1 and quash all further
investigation against the petitioner by the 2nd
respondent pursuant to Ext.P1.
2) To issue a writ of mandamus or any other
appropriate writ, direction or order directing the 1st
respondent to entrust the investigation, if any,
against the petitioner pursuant to ext.P1, by any
other unit of the Central Bureau of Investigation in
the State of Kerala other than the unit headed by
the 3rd respondent.
W.P.(C).No. 35012 of 2009
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3) To issue a writ of mandamus or any other
appropriate writ or direction directing the 1st respondent
to see that the petitioner is not harassed in any manner
by any officials under the 1st respondent in connection
with the alleged investigation, if any, pursuant to
Ext.P1.”
2. The case of the petitioner briefly is as follows. The above
Writ Petition is filed against police harassment. The 4th respondent
herein is now working as the Commissioner of Police, Kozhikode
City. There are number of cases between the petitioner and the 4th
respondent in his personal capacity. He had harassed the petitioner
using his official power and influence. The petitioner was
unnecessarily taken into police custody and detained in the police
station. At that stage, the petitioner had approached this Court against
police harassment, by filing W.P.C. No. 18058 of 2007. As per
W.P.(C).No. 35012 of 2009
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Ext.P3 judgment in that Writ Petition, a Division Bench of this Court
found that the 4th respondent had harassed the petitioner. Hence this
Court directed the D.G.P. to conduct an enquiry against the 4th
respondent and other police officials, who had harassed the petitioner.
This Court had also directed the 4th respondent to pay an amount of
Rs.25,000/- to the petitioner towards cost.
3. Now the third respondent in this Writ Petition, who is a close
family friend and well wisher of the 4th respondent, had taken charge
as Superintendent of Police, C.B.I., Cochin unit. The third respondent
was a journalist at Kozhikode and thereafter she had undergone
coaching for I.P.S. under the 4th respondent . When the 3rd respondent
assumed charge as the S.P., C.B.I., Cochin unit, the petitioner
anticipated the interference by the fourth respondent and therefore had
given Ext.P4 complaint before the first respondent.
W.P.(C).No. 35012 of 2009
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4. On 1.12.2009, officers under the third respondent from
Cochin Unit had conducted a raid in the residence and factory of the
petitioner from 7 a.m. to 7 p.m. They had seized various documents,
which were related to the disputes between the petitioner and the 4th
respondent. Ext.P1 is the search list dt. 1.12.2009 for having seized
documents from the residence of the petitioner. Ext.P2 is the search
list dt. 1.12.2009 for having seized documents from the factory of the
petitioner. The petitioner alleges that the above said raid was
conducted by the third respondent without any complaint whatsoever
from any authorities, except if any from the 4th respondent. The
petitioner was being harassed by the third respondent and her officers.
The petitioner apprehends that he will not get justice, if the
investigation is to be conducted by the third respondent. Hence this
Writ Petition was filed.
W.P.(C).No. 35012 of 2009
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5. Respondents 1 to 3 filed detailed counter affidavit.
6. Heard the learned senior counsel for the petitioner and the
learned counsel for the respondents.
7. Learned counsel for the petitioner submitted that the
petitioner had already faced severe harassments in the hands of the
senior police officials in Cochin City at the instance of the 4th
respondent and that the present raid and alleged investigation against
the petitioner by the third respondent is upon the influence, instigation
and instruction of the 4th respondent. Learned counsel for the
petitioner submitted that there was no complaint from any person or
authorities in which the petitioner had transactions, asking an enquiry
by the second respondent. The learned counsel for the petitioner
submitted that the fact that the officers under the third respondent had
visited the Canara Bank on 27.10.2009 and sought for the documents
relating to the disputes between the petitioner and the 4th respondent
W.P.(C).No. 35012 of 2009
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would ipso facto prove that the enquiry, if any, under the third
respondent is nothing but to help and favour the 4th respondent.
Learned counsel submits that the petitioner strongly believes that if the
investigation, if any, is conducted by respondent No. 2 or by
respondent No.3, the petitioner will not get justice.
8. In paragraphs 3, 4 and 5 of the counter affidavit filed on
behalf of respondents 1 and 2, it is stated as follows:
“3. On 19.11.2009, ACB, Cochin registered a
criminal case vide RC 14(A)/2009 u/s. 120B r/w. 420
and 13(2) r/w 13(1)(d) of PC Act, 1988 against Sri.K.R.
Ramakrishnan (A1), the then Branch Manager, Canara
Bank, Overseas Branch, Ernakulam, Shri,. P.K.R.
Nambiar (A2), the then Branch Manager, Canara Bank,
Overseas Branch Ernakaulam, Shri.S. Sathisan (A3), the
then Branch Manager, Canara Bank, Overseas Branch,
Ernakulam and Shri.P.V. Viju (A4), Proprietor, M/s.
W.P.(C).No. 35012 of 2009
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Marine Ventures, 22/1491, Cochin -6. The gist of the
case as per the FIR is that Shri.K.R. Ramakrishnan (A1),
the then Brnach Manager, Canara Bank, Overseas Branch,
Ernakulam, entered into a criminal conspiracy with Shri.
P.V. Viju (A4), Proprietor, M/s. Marine Ventures,
22/1491, Cochin -6, engaged in the processing and
export of Marine Products, to cheat the Bank and in
pursuance of the said conspiracy, during 2000 to 2004,
dishonestly and with intention to cause undue pecuniary
benefit to A4, processed, recommended and got
sanctioned a packing credit facility of Rs. 40 Lakhs and
foreign bill discounting facility limit of Rs. 55 Lakhs, in
December, 2000. In these processes A1 knowingly
suppressed the fact that A4 was the guarantor for the
loans availed by M/s. Bell Foods, owned by his mother
Smt.P.Usha Devi, which had already become non-
performing and outstanding in the same bank. It is
further informed that A4 did not maintain sufficient stock
or had business turnover as projected to the Bank. In this
background, A1 dishonestly recommended for enhancing
W.P.(C).No. 35012 of 2009
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the packing credit limit to Rs.50 Lakhs, without verifying
the credit worthiness of A4 and by giving a false report
that the account is satisfactory. On the basis of this
recommendation, the limit was enhanced to Rs. 50 Lakhs.
In May, 2001, Shri. P.K.R. Nambiar (A2), the Branch
Manager, who succeeded A1, also entered into this
conspiracy and dishonestly sanctioned a term loan of Rs.4
Lakhs to A4 in October, 2002. Further, Sri.S. Sathisan
(A3), the Branch Manager, who succeeded A2, as the
Branch In charge, joined the said criminal conspiracy, in
pursuance of which he dishonestly recommended and got
sanctioned an additional packing credit limit of Rs. 35
Lakhs and enhanced the foreign bill discounting facility
to Rs.67 Lakhs, in June, 2003 without any additional
security or proper credit assessment. A4 cheated the
Bank, in pursuance of the said conspiracy and obtained
wrongful gain to the tune of about Rs.1.95 Crores. The
loan amount so obtained was not utilised for the purpose
for which it was sanctioned and it has become NPA.
W.P.(C).No. 35012 of 2009
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4. As part of the investigation into the above case,
the CBI conducted searches at M/s. Marine Ventrues,
22/1491, Cochin-6 and M/s. Bell Foods, Pallichal Road,
Thoppumpady, Cochin -5 on 1.12.2009. A total of 11
documents were seized from the premises of M/s. Marine
Ventures and 17 documents were seized from the
premises of M/s. Bell Foods. The firm M/s. Bell Foods,
was found to be run by the petitioner Shri. Viju P.V. It is
to submit that he is also the guarantor for the loan
sanctioned to M/s. Bell Foods, which is in the name of his
mother Smt.P. Usha Devi in which a total amount of
Rs.6.52 Crores is outstanding in the same bank i.e. Canara
Bank, Overseas Branch, Ernakulam. The outstanding
amount in the loan sanctioned to Marine Ventures, owned
by the petitioner is Rs.1.95 Crores. It is to further submit
that as succeeding Branch Managers enhanced the
packing credit facility to M/s. Bell Foods without taking
sufficient collateral securities, the Bank is unable to
recover the outstanding dues.
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5. The averments in para 1 to 3 are not correct as
RC 14(A)/2009 was registered on the basis of a source
information in the normal course. CBI is competent to
register cases against public servants and private persons
for conspiracy or abetment of the offences under
Prevention of Corruption Act, 1988 where Govt. of India
revenue interests are involved. The cases where public
servants conspire with private persons to cheat the
government, both the public servants and private parties
are mutual beneficiaries and therefore, it is a normal
practice in CBI to initiate cases on its own, based on the
credible information, received by its own officers. The
CBI is not aware of any civil dispute between the
petitioner Shri,. Viju P.V. and the 4th respondent Shri.S.
Sreejith I.P.S. and these disputes don’t have a bearing on
criminal cases which are investigated purely on merits
and professional consideration. A copy of the F.I.R. is
produced and marked as Ext.R2(A).”
W.P.(C).No. 35012 of 2009
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9. In view of the facts mentioned in the above paragraphs in the
counter affidavit, we are of the view that the allegation of the petitioner
that the above raids were conducted without any basis cannot be
accepted.
10. Learned counsel for the petitioner submitted that
respondents 1 to 3 did not conduct any preliminary enquiry before
registering the crime. In the decision reported in Nirmal Singh
Kahlon v. State of Punjab & ors. ((2009) 1 SCC 441) it was held
that lodging of an F.I.R. by the C.B.I. is governed by a manual. It may
hold a preliminary enquiry. It has been given the said power in
Chapter VI of C.B.I. Manual. A prima facie case may be held to have
been established on completion of a preliminary enquiry. The relevant
portion of para 1 of Chapter IX of C.B.I. (Crime) Manual, 2005
regarding preliminary enquiries reads as follows:
W.P.(C).No. 35012 of 2009
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“When information available is adequate to
indicate commission of cognizable offence or its
discreet verification leads to similar conclusion, a
Regular Case must be registered instead of a
Preliminary Enquiry. It is, therefore, necessary that
the SP must carefully analyse the material available at
the time of evaluating the verification report
submitted by the Verifying Officer, so that
registration of PE is not resorted to where a Regular
Case can be registered.”
Therefore it is clear that preliminary enquiry before registration of
F.I.R. is not mandatory. Exts.P1 and P2 search lists would show that at
the time of conducting those searches a crime was registered by the
C.B.I. as R.C.14-A/2009.
11. In paragraph 5 of the counter affidavit filed by respondents
1 and 2, it is stated that the crime was registered on the basis of a
W.P.(C).No. 35012 of 2009
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source of information in the normal course and that the C.B.I. is
competent to register a case against public servants and private persons
for conspiracy or abetment of offence under the Prevention of
Corruption Act, 1988, where the Government of India revenue interests
are involved and that it is a normal practice in the C.B.I. to initiate
case on its own based on credible information received by its own
officers.
12. Learned counsel for respondents 1 and 2 submitted that the
searches were conducted as per Section 165 Cr.P.C. on 1.12.2009
during the course of investigation into the case and due intimation
regarding the search was sent to the Special Judge-I, C.B.I.,
Ernakulam on 2.12.2009. If the search was conducted as per Section
165 of Cr.P.C., the first prayer in the Writ Petition to quash all further
investigation against the petitioner by the second respondent pursuant
to Ext.P1 cannot be allowed.
W.P.(C).No. 35012 of 2009
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13. Learned counsel for the petitioner invited our attention to the
decision in Nirmal Singh Kahlon (supra), in which it was held in
paragraph 28 as follows:
“28. An accused is entitled to a fair
investigation. Fair investigation and fair trial are
concomitant to preservation of fundamental right of an
accused under Article 21 of the Constitution of India.
But the State has a larger obligation i.e. to maintain law
and order, public order and preservation of peace and
harmony in the society. A victim of a crime, thus, is
equally entitled to a fair investigation.”
14. Learned counsel for the petitioner invited our attention to
the decision reported in S.N. Sharma v. Bipen Kumar Tiwari &
ors. (1970 (1) SCC 653), in which it was held:
W.P.(C).No. 35012 of 2009
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“Though the Code of Criminal Procedure gives to
the police unfettered power to investigate all cases
where they suspect that a cognizable offence has been
committed, in appropriate cases an aggrieved person can
always seek a remedy by invoking the power of the
High Court under Article 226 of the Constitution under
which, if the High Court could be convinced that the
power of investigation has been exercised by a police
officer mala fide, the High Court can always issue a writ
of mandamus restraining the police officer from
misusing his legal powers. The fact that the Code does
not contain any other provision giving power to a
Magistrate to stop investigation by the police cannot be
a ground for holding that such a power must be read in
Section 159 of the Code.”
15. Learned counsel for the third respondent invited our
attention to the decision reported in Central Bureau of Investigation
W.P.(C).No. 35012 of 2009
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v. Rajesh Gandhi (AIR 1997 SC 93), in which it was held that the
accused cannot have a say in who should investigate the offence he is
charged with. In the decision reported in Divine Retreat Centre v.
State of Kerala (2008 (1) KLT 1042 (SC), in which it was held that:
“The High Court in exercise of its inherent
jurisdiction cannot change investigating officer in
midstream and appoint any agency of its own choice to
investigate into a crime on whatsoever basis and more
particularly on basis of complaints or anonymous
petitions addressed to a named Judge.”
16. Learned counsel for the third respondent submitted that the
other accused have no complaint against the investigation of the case
by the C.B.I. unit headed by the third respondent. Learned counsel
further submitted that the crime is registered on the basis of bank
W.P.(C).No. 35012 of 2009
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documents, which would reveal the involvement of the petitioner in the
crime. The learned counsel for the third respondent submitted that the
third respondent has to give report regarding investigation of the case
to the superior officers in every month.
17. The main allegation of the petitioner against the
investigation by the third respondent is stated in paragraph 7 of the
Writ Petition, which reads as follows:
“The 3rd respondent/S.P., CBI, Cochin Unit is a
close associate of 4th respondent S. Sreejith IPS. The 3rd
respondent was originally a Journalist based in
Kozhikode. The 3rd respondent was trained for IPS
coaching under the 4th respondent/S.Sreejith IPCSA while
he was residing at Rarichan road at Kozhikode. The 3rd
respondent is the best family friend of the 4th
respondent/S.Sreejith IPS and the 3rd respondent is a
frequent personal visitor of the 4th respondent while he
W.P.(C).No. 35012 of 2009
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was serving as Superintendent of Police at Kasarcode,
Kolla, Kottayam and Kozhikode.”
In reply to that allegation, the third respondent filed counter affidavit
and in paragraphs 9 and 10 of the counter, the allegations are denied.
Paragraphs 9 and 10 of the counter affidavit of the third respondent
reads as follows:
“9. The averments in para 7 of the writ petition are
false and hence denied. It is incorrect to state that I am a
close associate of 4th respondent. I never worked as a
journalist as alleged. I took my P.G. Diploma in Mass
Communication and Journalism from Institute of
Communication and Journalism, Calicut in the year 1998.
The averment that the 4th respondent trained me for IPS
examination is absolutely false and hence denied. I
attended the coaching for Civil Services Examination
W.P.(C).No. 35012 of 2009
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conducted by the Institute of Management, Trivandrum,
which was headed then by an IG of Police.
10. Many IAS and IPS officers, including Shri.
Sreejith IPS and other academicians took classes for the
coaching. The averment that I am the best family friend
of 4th respondent and a frequent visitor while serving as
Superintendent of Police, Kasargode, Kollam, Kottayam
and Kozhikode is absolutely false and hence denied.
After training in Police Academy in 2001, I was allotted
Orissa cadre and since then I had been working in Orissa.
Even though I hail from Alleppey, I could not visit my
home land even once in an year. It is only after my
deputation to CBI and joining the cochin unit that I have
been continuously staying in Kerala. I submit that I have
no personal intimacy with the 4th respondent.”
18. The petitioner could not substantiate his allegations against
the third respondent by producing any evidence. In the rejoinder filed
W.P.(C).No. 35012 of 2009
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by the third respondent it is stated that she had contact with the 4th
respondent through mobile phone. The 4th respondent had also
contacted her through mobile phone. It is a fact that respondents 3
and 4 are IPS officers. The mere fact that the 4th respondent contacted
the third respondent over mobile phone or the third respondent
contacted the 4th respondent through mobile phone is not a sufficient
factor to vitiate the investigation. Therefore, we are of the view that
the second prayer in the Writ Petition also cannot be allowed.
19. At the time of argument, learned counsel for the petitioner
has no case that the officers of the first respondent are harassing the
petitioner in connection with the crime registered against him.
Therefore, we are of the view that this Writ Petition is liable to be
dismissed as it is without any merit.
20. Accordingly this Writ Petition is dismissed. It is made clear
that dismissal of this Writ Petition is not a bar for the first respondent
W.P.(C).No. 35012 of 2009
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to entrust the investigation against the petitioner to any other unit other
than a unit headed by the third respondent. We must not be taken to
have expressed any opinion on merits of the matter.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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