IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 15034 of 2003(M)
1. P.MARYKUTTY, REVENUE DIVISIONAL
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF VIGILANCE AND
3. THE CHIEF ELECTORAL OFFICER,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
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Dated 9th November 2009
JUDGMENT
Special Judge, Vigilance, Thrissur received
an unsigned and undated petition from unidentifiable
“employees standing against corruption in civil
service” alleging that they had sent a letter
addressed to Deputy Superintendent of Police,
Vigilance and Anti Corruption Bureau wherein
several instances of corruption were pointed out
involving the officers connected with General
election, claiming expenses for engaging in the
election work, and contending that the Deputy
Superintendent of police is not taking appropriate
action and therefore, a direction to conduct
immediate enquiry is to be given to the Deputy
Superintendent of Police. From the records called for
from the concerned Vigilance court, it is seen that
the learned Special Judge on receipt of the complaint
called for a report from District Collector, Thrissur
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
2
on the allegations. A report is seen received by the
Vigilance Judge from the District Collector dated
29/3/2003 stating that on examination several bills
produced appeared to be bogus. On receipt of the report
from the District Collector, Vigilance Judge passed an
order dated 31/3/2003 directing forwarding of the
materials before the Special Judge to the Director of
Vigilance and Anti Corruption Bureau, Thiruvananthapuram
under Section 156(3) of Code of Criminal Procedure for
registration of a crime in each instances against
public servants disclosed by the records, making it
clear that the criminal matters involving the public
servants functioning under the State Election
Commission who were under deputation or directly, could
be investigated by the Vigilance. The Vigilance and Anti
Corruption Bureau was permitted to seize and peruse
the records for the purpose of investigation. Based on
this order, crime No.10/2003 of Vigilance and Anti
Corruption Bureau, Thrissur was registered. These
petitions are filed by the respective accused to quash
the order passed by the Special Judge directing
investigation.
2. Petitioners would contend that the very
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
3
procedure adopted by the Special Judge is illegal and
erroneous. It is pointed out that the petition based on
which Special Judge has taken action, is an anonymous
petition and names of the office bearers of the members
of the association is not disclosed in the complaint and
such a complaint should not have been accepted by the
learned Special Judge and as it is not a complaint as
provided under Code of Criminal Procedure, learned
Special Judge should not have acted on the said
petition. It was also contended that by the impugned
order Special Judge has found prima facie that
allegations are true and when a complaint is sent for
investigation under Section 156(3), learned Special
Judge cannot give his opinion on the merits or otherwise
of the complaint. It was pointed out that once
cognizance is taken on the complaint under Section 200
of the Code, there cannot be a direction for
investigation under Section 156(3) of the Code, though
investigation could be ordered as provided under Sub
Section 1 of Section 202 of Code of Criminal Procedure.
It is pointed out that the impugned order is for
directing investigation under Section 156(3) and not
an investigation under Section 202(1) of Code of
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
4
Criminal Procedure. It is also pointed out that the
Special Judge cannot give his opinion on the prima facie
case when investigation is ordered under Section 156(3)
and if cognizance is to be taken as provided under
Section 200, it is mandatory that complainant and his
witness present should be examined and then only Special
Judge can proceed under Section 202 of Code of Criminal
Procedure. It is therefore, argued that the very
procedure adopted is illegal and has to be quashed.
3. Learned Public Prosecutor submitted that
even if for the illegal procedure adopted by the Special
Judge, the order is quashed liberty is to be granted to
the State to proceed against the corrupt officials.
4. There is force in the submission made on
behalf of the petitioners. If cognizance on a complaint
is taken by the learned Special Judge, he has to conduct
enquiry as provided under Section 200 or 202. If
cognizance is taken thereafter learned Magistrate or
Special Judge cannot direct the investigation under
Section 156(3) of Code of Criminal Procedure by
reverting to the pre-cognizance stage. True, as provided
under Sub Section 1 of Section 202 the Special Judge can
direct an the investigation to be made by the Police
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
5
officer but that investigation is not an investigation
under Section 156(3) which can end only on filing a
final report under Section 173(2) but an investigation
limited as provided under Sub Section 1 of Section 202.
If Special Judge finds that the complaint is to be sent
for investigation under Section 156(3), which is a pre-
cognizance stage he cannot proceed with the complaint
under Section 200 or Section 202 and instead has to send
it for investigation under Section 156(3) before
considering merit of the complaint. As provided under
Section 200 Special Judge on receipt of the complaint
without examining the complainant and the witness if any
present provided under Section 200, cannot call for a
report from the District Collector. Special Judge can
call for the report in that petition, only if he is
taking cognizance on the complaint, though he can decide
later after conducting inquiry under Section 202 whether
cognizance of the offence is to be taken and summons is
to be issued under Section 204 or complaint is to be
dismissed under Section 203. But once he has acted upon
the complaint and finds a prima facie case, it is taking
cognizance of the complaint, in which case he
necessarily has to follow the procedure provided under
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
6
Section 200 or 202 of the Code. The order of the Special
Judge shows that after getting the report from the
District Collector, Special Judge heard the legal
advisor of the vigilance Anti Corruption Bureau and
thereafter passed a detailed order regarding a prima
facie case on the allegations raised and also lack of
bonafides on the part of the persons against whom
allegations are raised and then directed an
investigation under Section 156(3) of the Code. Special
Judge could not have legally proceeded thereafter
reverting to the pre-cognizance stage by directing
investigation under Section 156(3). The legal position
is settled by the Apex court in D.Laxminarayan v.
V.Narayana (AIR 1976 SC 1672) as follows.
"16. The position under
the Code of 1898 with regard to the
diction to send a complaint
disclosing a cognizable offence--
whether or not triable exclusively
by the Court of Session– to the
Police for investigation under
Section 156(3), remains unchanged
under the Code of 1973. The
distinction between a police
investigation ordered under Section
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
7
156(3) and the one directed under
Section 202, has also been
maintained under the new Code; but a
rider has been clamped by the 1st
proviso to Sec.202(1) that if it
appears to the Magistrate that an
offence triable exclusively by the
Court of Session has been committed,
he shall not make any direction for
investigation.
17. Section 156(3) occurs
in Chapter XII, under the caption:
“Information to the Police and their
powers to investigate”; while
Section 202 is in Chapter XV which
bears the heading “Of complaints to
Magistrate”. The power to order
police investigation under Section
156(3) is different from the power
to direct investigation conferred by
Sec.202(1). The two operate in
distinct spheres at different
stages. The first is exercisable at
the pre-cognizance stage, the second
at the post-cognizable stage when
the Magistrate is in seisin of the
case. That is to say in the case of
a complaint regarding the
commission of a cognizable offence,
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
8
the power under Sec.156(3) can be
invoked by the Magistrate before the
takes cognizance of the offence
under Section 190(1)(a). But if he
once takes such cognizance and
embarks upon the procedure embodied
in Chapter XV, he is not competent
to switch back to the pre-cognizance
stage and avail of Section 156(3).
It may be noted further that an
order made under sub-section (3) of
Section 156, is in the nature of a
peremptory reminder or intimation
to the police to exercise their
plenary powers of investigation
under Section 156(1). Such an
investigation embraces the entire
continuous process which begins
with the collection of evidence
under Section 156 and ends with a
report or charge sheet under Section
173. On the other hand, Section
202 comes in at a stage when some
evidence has been collected by the
Magistrate in proceedings under
Chapter XV, but the same is deemed
insufficient to take a decision as
to the next step in the prescribed
procedure. In such a situation, the
Magistrate is empowered under
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
9
Section 202 to direct, within the
limits circumscribed by that
section, an investigation “for the
purpose of deciding whether or not
there is sufficient ground for
proceeding”. Thus the object of an
investigation under Section 202 is
not to initiate a fresh case on
police report but to assist the
Magistrate in completing
proceedings already instituted upon
a complaint before him.
5. As rightly pointed out by the learned
counsel appearing for the petitioners, complaint
received by the learned Special Judge and acted upon is
not signed by any person. Name of the person who sent
the petition is also not disclosed. Though it is
purportedly sent by “the employees standing against
corruption in civil service” its office bearers are not
disclosed and it is not a defined body or group.
This petition can only be treated as an anonymous
petition.
6. Complaint is defined under clause (d) of
Section 2 of Code of Criminal Procedure means any
allegations made orally or in writing, to a
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
10
Magistrate with a view to his taking action under the
Code that some person, whether known or unknown, has
committed an offence, but does not include a police
report. Section 200 provides that a Magistrate taking
cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses, if any
present and the substance of such examination shall be
reduced to writing and shall be signed by the
complainant and the witnesses and also by the
Magistrate. Therefore, to take cognizance of a
complaint, there should be a complainant whose identity
could be ascertained and who can be examined by the
Magistrate, as provided under Section 200 of Code of
Criminal Procedure. Therefore, an anonymous petition
cannot be treated as a complaint which can be taken
cognizance by the Magistrate under Section 200 of the
Code.
7. As stated earlier records of the Special
Judge shows that Magistrate had acted upon the anonymous
petition and called for a report and thereafter passed
the order, without making any attempt to comply with
the procedure provided under Section 200 of the Code.
Learned Special Judge acted illegally and entered a
O.P.NO.15034/2003, W.P.C.NOs.18262/2003
and W.P.C.No.7100/2007
11
finding of prima facie case, without following the
procedure provided under Section 200 or 202 of the Code
and then illegally sent the petition and the records to
the police for investigation under Section 156(3) of the
Code. Even though the learned Special Judge passed the
impugned order, after getting a report, the order
passed for investigation under Section 156(3) is not
on the report submitted by the District Collector but on
the anonymous petition. In such circumstances, the order
passed by the Special Judge is clearly illegal and can
only be quashed.
8. All the petitions are allowed and the
order passed by Special Judge, Vigilance, Thrissur dated
31/3/2003, directing registration of a case and its
investigation and registration of the case in
compliance with the order are quashed. It is also made
clear that quashing of the order will not affect the
right of the State to proceed against the corrupt
officials in accordance with law.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.