{"id":259652,"date":"2008-03-11T00:00:00","date_gmt":"2008-03-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/divine-retreat-centre-vs-state-of-kerala-ors-on-11-march-2008"},"modified":"2015-03-11T16:40:50","modified_gmt":"2015-03-11T11:10:50","slug":"divine-retreat-centre-vs-state-of-kerala-ors-on-11-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/divine-retreat-centre-vs-state-of-kerala-ors-on-11-march-2008","title":{"rendered":"Divine Retreat Centre vs State Of Kerala & Ors on 11 March, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Divine Retreat Centre vs State Of Kerala & Ors on 11 March, 2008<\/div>\n
Author: B S Reddy<\/div>\n
Bench: S.H. Kapadia, B. Sudershan Reddy<\/div>\n
           CASE NO.:\nAppeal (crl.)  472 of 2008\n\nPETITIONER:\nDivine Retreat Centre\n\nRESPONDENT:\nState of Kerala & Ors.\n\nDATE OF JUDGMENT: 11\/03\/2008\n\nBENCH:\nS.H. KAPADIA & B. SUDERSHAN REDDY\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT
\n(Arising out of S.L.P. (Crl.) No. 2234 of 2007)
\nB. SUDERSHAN REDDY, J.\n<\/p>\n
1.\t\tLeave granted.\n<\/p>\n
2.\t\tWhat is the scope, content and ambit of the
\ninherent power conferred on the High Court under Section 482<\/a>
\nof the Code of Criminal Procedure, 1973 (for short, the Code)
\nis the central question that falls for our consideration in this
\nappeal.\n<\/p>\n
3.\t\tThe relevant facts, giving rise to this appeal, have
\nbeen set out  in the impugned judgment of the High Court but
\nthey have to be recapitulated in order to enable us to give our
\nreasons for the findings which we will be arriving at on the
\ninterpretation.\n<\/p>\n
4.\t\tThis appeal by grant of special leave is directed by
\nDivine Retreat Centre assailing the judgment and order dated
\n10.3.2006 of the High Court of Kerala rendered in Criminal
\nM.C. No. 405 of 2006, directing investigation of Crime No. 381
\nof 2005 of Koratty Police Station to be taken away from the
\nInvestigating Officer and entrusting the same to a Special
\nInvestigation Team headed by Vinson M. Paul, I.P.S. Inspector
\nGeneral of Police, presently working as Managing Director of
\nKerala Police Housing Construction Corporation,
\nThiruvananthapuram.  The High Court also directed the same
\nauthority to investigate\/inquire into various other allegations
\nleveled in an anonymous petition filed against Divine Retreat
\nCentre.  The impugned judgment and order arises out of the
\nproceedings suo motu initiated by the Court on the basis of
\nanonymous petition addressed to Justice Padmanabhan Nair.\n<\/p>\n
5.\t\tThe tell-tale facts disclosed from the record may
\nhave to be noted in some detail.  One Mini Varghese, a female
\nremand prisoner, sent a petition to the District Judge,
\nKozhikode, inter alia, alleging that while she was taking
\nshelter in Divine Retreat Centre she had been subjected to
\nmolestation and exploitation and became pregnant from
\nFather Jose Thadathil (later identified as Father Mathew
\nThadathil).  When she came out of Centre  to attend her
\nsisters marriage she was implicated in a false theft case and
\nlodged in the jail.\n<\/p>\n
6. \tThe District Judge having received the petition on
\n28.7.2005 forwarded the same to the concerned Magistrate on
\n9.8.2005 to do the needful.  The Judicial Magistrate First
\nClass, Koyilandi recorded the statement of the victim on
\n11.8.2005 and thereafter the matter was transferred to the
\nJudicial Magistrate First Class, Chalakuddy.  The learned
\nMagistrate having received the records ordered investigation.
\nA case was registered in Crime No. 381 of 2005 under Section
\n376(g)<\/a> I.P.C. at Koratty Police Station.\n<\/p>\n
7.\tFor whatever reasons, the District Judge sent a copy of
\nthe petition received by him to the  Registrar of Kerala High
\nCourt which was placed before Thankappan, J.  who in turn
\ndirected complaint to be forwarded to the Superintendent of
\nPolice, Thrissur to cause an inquiry and if necessary to
\nregister a case and report to the Court.  The Superintendent of
\nPolice as well as the Circle Inspector of Police (Investigating
\nOfficer) submitted their reports duly informing the Registry
\nthat a case has already been registered and was being
\ninvestigated.\n<\/p>\n
8.\tOn 28.10.2005, District Judge, Kozhikode, addressed a
\nletter to the Registrar General, High Court of Kerala enclosing
\nanonymous Petition dated 26.10.2005 received by him
\naddressed to Justice K. Padmanabhan Nair.  The Petition was
\naccompanied by photocopies of certain press reports and three
\nVideo C.Ds.  In his covering letter, the District Judge referred
\nto the facts leading to the registration of Crime No. 381 of
\n2005 on the file of Koratty Police Station on 31.8.2005 under
\nSection 376(g)<\/a> I.P.C. and further stated:
\nIn the meantime, Smt. Mini Varghese
\ndelivered.  The Local Police, while arresting her
\nin connection with a theft case had seized a
\nmobile phone from her.  The police produced
\nthat mobile phone in the J.F.M.C., Koyilandy.
\nThat mobile phone was forwarded to the J.F.M.
\nChalakuddy for investigation as the concerned
\npriest was said to have made several calls to
\nthe lady in that mobile phone.  Later, I
\nhappened to see some press reports (I am
\nenclosed the 3rd page of the N.I.E. dt. 13.10.05
\nwhich carried a report, DNA Test? Oh No) to
\nthe effect that the police is not properly
\ninvestigating the case and instead, are more
\ninterested in tracing her antecedents and
\nalleged bad character.  They did not reportedly
\ncollect the details of calls to the mobile phone
\nseized from the lady, which would have given
\nsome clue regarding the alleged connection.
\nNor did they attempt a DNA test.  The lady had
\ncomplained to me that she is afraid to come
\nout of the jail on bail as she is under threat.  I
\ndo not know what is the present stage of the
\ninvestigation.<\/p>\n
9.\t\tThe matter was accordingly placed before
\nPadmanabhan Nair, J. by the Registry who in turn directed
\nthe matter to be placed before the Registrar General for
\nnecessary action by his endorsement dated 21.12.2005.\n<\/p>\n
10.\t\tThe matter was accordingly placed before
\nPadmanabhan Nair, J. on 24.1.2006 by the Registry in the
\nfollowing manner:\n<\/p>\n
Shri Thomas P. Joseph, District Judge,
\nKozhikode has sent a communication dated
\n28.10.2005, enclosing a complaint addressed
\nto the Honble Mr. Justice K. Padmanabhan
\nNair.  The communication of the learned
\nDistrict Judge and the complaint are self-
\nexplanatory.\n<\/p>\n
If any steps are to be taken with regard to the
\nmatter may kindly be indicated.<\/p>\n
The learned judge on the same day made the following
\nendorsement:\n<\/p>\n
Please verify and report whether the FPR Mini
\nVarghese had sent any petition to this Court
\nand if so what action was taken on that
\npetition?<\/p>\n
Thereafter the Registry re-submitted the whole file before
\nPadmanabhan Nair, J as under:\n<\/p>\n
     It appears that Smt. Mini Varghese, FRP
\n287, District Jail, Kozhikode had sent a
\ncomplaint to the Honble High Court, narrating
\nher agonies.  The matter was placed before the
\nHonble Mr. Justice K. Thankappan, since His
\nLordship was dealing with the petitions sent
\nfrom jail.  As per the order of the Honble
\nJudge, the petition was sent to the
\nSuperintendent of Police, Thrissur for an
\nenquiry and if found necessary, to register a
\ncase. It was also directed that the
\nSuperintendent of Police would file a report
\nbefore this Court within a reasonable time.\n<\/p>\n
     Presumably, in pursuance of the said
\ndirection, it appears that Crime No. 381\/2005
\nunder Sec. 376(g) of the IPC<\/a> was registered in
\nthe Koratty Police Station on 31.08.2005.\n<\/p>\n
     When the above matter was reported to
\nthis Court, the Honble Judge, as per His
\nLordships order dated 22.12.2005 directed
\nthat the matter be closed.\n<\/p>\n
\t\t\tThe entire file is submitted.<\/p>\n
On re-submission of the file, the learned judge passed the
\nfollowing order on 8.2.2006 thus:\n<\/p>\n
     I have carefully gone through
\nAnonymous petition and the documents
\nendorsed along with.  One of the documents
\nenclosed alongwith the petition is a petition
\nsubmitted by FPR 287, Mini Varghese raising
\nan allegation of rape against the head of the
\nDivine Centre Muringoor  Rw. Fr. Mathew
\nThadathil.  Of course in the petition she had
\ngiven the name as Jose Thadthil but there is
\nno room for any doubt regarding the identity of
\nthe person.\n<\/p>\n
It is seen that this court had forwarded the
\npetition received from Smt. Mini Varghese to
\nthe Suptd. Of Police TCR for necessary action
\non 7-9-05.  The Suptd. Of Police had filed a
\nstatement on 5-11-05 to the effect that a
\nCrime as Case No.381 of 2005 at Koratthy
\nPolice Station u\/s 376(g) of I.P. Code is
\nregistered and the same is being investigated
\nby the C I of Police Chalakkudy. The CI of
\nChalakkudy had also submitted a similar
\nstatement on 31-10-05.\n<\/p>\n
It is seen that on 8-11-05 the report of the CI
\nwas brought to the notice of the Honble Judge
\nwho was dealing with the petition received
\nfrom jail.  He passed an order on 22-12-05 to
\nclose the file.\n<\/p>\n
In the meanwhile another petition is seen
\nreceived from the FPR 287.  That petition was
\nforwarded to this court on 11-11-05 and
\nreceived in this court only on 21-11-05.  The
\nRegistry had noted  that the file was  already
\nput up to KT(J) and the petition was to be
\nincorporated in the file.\n<\/p>\n
In the above said the FPR 287 had raised
\nserious allegation regarding the investigation.
\nIt is  stated that two police men went to the jail
\nbut they did not make enquiry regarding her
\nallegation of rape alleged against the priest.
\nEven though there is an order to close the file
\nCrl.PP 57929\/05.  I am of the view that
\nsubsequent petition  ought to have treated a
\nseparate petition praying for an order for
\nproper investigation and separate action taken.
\nI am of the view that petition can also be
\nclubbed with the anonymous petition.\n<\/p>\n
A perusal of the anonymous petition dated 26-
\n10-05 shows it contains serious allegation.  So
\nit is only just and proper the matter is taken
\non the judicial side especially in view of the
\nallegation of involvement of senior IAS and IPS
\nofficers.\n<\/p>\n
So there will be direction to the Registry to
\ntreat the anonymous petition alongwith
\npetition of FPR 287 received in the court on
\n21-11-05  as petitions praying for an order for
\nproper investigation and Register as a suo
\nmotu Crl. Misc. Case.  Serve a copy of the
\nabove stated petition to the Director General of
\nProsecution.  The copies of the documents
\nexcept the CDs may also be given to him.\n<\/p>\n
Keep the CD under safe custody for the time
\nbeing till a decision is taken in the matter.\n<\/p>\n
Register the Crl. Misc. Case and post for
\nadmission.               <\/p>\n
11.\t\tBe it noted that the complaint\/Petition dated
\n27.10.2005 received from Mini Varghese  by the Registry on
\n21.11.2005 was placed in the same file based on which
\nThankappan, J initially ordered an inquiry.  Thereafter the
\nentire matter was placed before Thankappan, J on 22.12.2005
\nitself and the learned Judge directed the closure of the matter
\nthus:  \tNo further probe is necessary.  Close the file. This
\nfact was also brought to the notice of Padmanabhan Nair, J.\n<\/p>\n
12.\t\tHowever, the learned Judge was of the view that the
\nsubsequent petition sent by Mini Varghese  dated 27.10.2005
\nought to have been treated as a separate petition praying for
\nan order for proper investigation.  The learned Judge was  also
\nof the view that the said petition  was required to be clubbed
\nwith the anonymous petition.\n<\/p>\n
13.\t\tThe Registry in compliance with the directions so
\nissued by the learned judge promptly registered a case in
\nCriminal M.C. No. 405 of 2006 under Section 482<\/a> of the Code
\nin which the persons against whom accusations were made
\nhave been duly impleaded as the respondents. The matter was
\nlisted for admission in the court on 10.2.2006 and was
\nadjourned to 15.2.2006 for serving a notice upon the learned
\nDirector General of Prosecution (Public Prosecutor). The
\nlearned Judge heard the matter and reserved the case for
\norder. The impugned order was passed on 10.3.2006.\n<\/p>\n
SUBMISSIONS:\n<\/p>\n
14.\t\tThe validity of  the said order is impugned in this
\nappeal on various grounds.  Shri Anil B. Divan, learned Senior
\nCounsel appearing on behalf of the appellant submitted   that
\nthe whole procedure adopted to entertain and initiate
\nproceedings culminating in passing the impugned order
\nsuffers from incurable procedural and substantive infirmities
\nrendering the order void. It was further contended  that the
\nimpugned order suffers from lack of jurisdiction.  The
\njurisdiction of the High Court under Section 482<\/a> of the Code is
\nnot available to order investigation into any case by the police.
\nThe learned senior counsel  proceeded to contend that the
\ndirections issued by the High Court could not have been
\nissued even in a public interest litigation  under Article 226<\/a> of
\nthe Constitution of India.  On merits, the learned senior
\ncounsel submitted that neither the complaint of the victim nor
\nthe anonymous petition discloses any irregularity in the
\nmatter of investigation.   The directions issued by the learned
\nJudge are inquisitorial in nature and sweeping in their width
\nand amplitude directing the Special Investigation Team (SIT) to
\nfind out as to whether the appellant committed any crime and
\nif so to investigate into such crime. Such a course is
\nimpermissible in law.\n<\/p>\n
15.\t\tShri P.P. Rao, learned senior counsel  appearing on
\nbehalf of the respondents supported the impugned order.  It
\nwas submitted that there are no limits imposed in the matter
\nof exercise of jurisdiction under Section 482<\/a> of the Code so
\nlong as the directions do not run counter to statutory
\nprovisions.  It was alternatively contended that if for any
\nreason the impugned order is not traceable to Section 482<\/a> of
\nthe Code the same could be considered as the one passed by
\nthe High Court under Article 226<\/a> of the Constitution of India.
\nIt was also submitted that the appellant has no locus to
\nchallenge the impugned order inasmuch as it is not an
\naccused in any criminal case.  It was also contended that even
\nthe accused in a criminal case has no right of hearing until
\nfiling of a report under Section 173<\/a> of the Code.\n<\/p>\n
NATURE OF JURISDICTION UNDER SECTION 482 OF
\nCODE  QUA THE REGISTRATION OF A CRIME  AND
\nINVESTIGATION:\n<\/p>\n
16.\t\tThe well defined and demarcated functions in the
\nfield of crime detection by the police and its subsequent
\nadjudication  by the Courts   is so well known and had been
\nrecognized way back in Emperor Vs. Khwaja Nazir Ahmad .
\nThe Privy Council observed that just as it is essential that
\nevery one accused of a crime should have free access to a
\nCourt of justice so that he may be duly acquitted if found not
\nguilty of the offence with which he is charged, so it is of the
\nutmost importance that the judiciary should not interfere with
\nthe police in matters which are within their province and into
\nwhich the law imposes upon them the duty of enquiry.   It is
\nheld:\n<\/p>\n
In India as has been shown there is a
\nstatutory right on the part of the police to
\ninvestigate the circumstances of an alleged
\ncognizable crime without requiring any
\nauthority from the judicial authorities, and it
\nwould, as their Lordships think, be an
\nunfortunate result if it should be held possible
\nto interfere with those statutory rights by an
\nexercise of the inherent jurisdiction of the Court.
\nThe functions of the judiciary and the police are
\ncomplementary not overlapping and the
\ncombination of individual liberty with a due
\nobservance of law and order is only to be
\nobtained by leaving each to exercise its own
\nfunction, always, of course, subject to the right
\nof the Court to intervene in an appropriate case
\nwhen moved under S. 491<\/a>, Criminal P.C., to
\ngive directions in the nature of habeas corpus.
\nIn such a case as the present, however, the
\nCourts functions begin when a charge is
\npreferred before it and not until then.  It has
\nsometimes been thought that S. 561A<\/a> has given
\nincreased powers to the Court which it did not
\npossess before that section was enacted.  But
\nthis is not so.  The section gives no new powers,
\nit only provides that those which the Court
\nalready inherently possess shall be preserved
\nand is inserted, as their Lordships think, lest it
\nshould be considered that the only powers
\npossessed by the Court are those expressly
\nconferred by the Criminal Procedure Code<\/a>, and
\nthat no inherent power had survived the
\npassing of that Act. (emphasis supplied)<\/p>\n
17.\t\tIn S.N. Sharma Vs. Bipen Kumar Tiwari & ors. ,
\nthis Court took the view that there is no mention of any power
\nto stop an investigation by the police.  The power of the police
\nto investigate any cognizable offence is uncontrolled by the
\nMagistrate, and it is only in cases where the police decide not
\nto investigate the case, the Magistrate can intervene and either
\ndirect an investigation, or, in the alternative, himself proceed
\nor depute a Magistrate subordinate to him to proceed to
\nenquire into the case.  The power of the police to investigate
\nhas been made independent of any control by the Magistrate.
\nIt is further held:\n<\/p>\n
though the Code<\/a> of Criminal Procedure gives to
\nthe police unfettered power to investigate all
\ncases where they suspect that a cognizable
\noffence has been committed, in appropriate
\ncases an aggrieved person can always seek a
\nremedy by invoking the power of the High Court
\nunder Article 226<\/a> of the Constitution under
\nwhich, if the High Court could be convinced that
\nthe power of investigation has been exercised
\nby a police officer mala fide, the High Court can
\nalways issue a writ of mandamus restraining
\nthe police officer from misusing his legal
\npowers.<\/p>\n
This position has been made further clear by this Court in its
\nauthoritative pronouncement in State of Bihar & anr. Vs.
\nJ.A.C. Saldanha & ors.  thus:\n<\/p>\n
25. There is a clear-cut and well demarcated
\nsphere of activity in the field of crime detection
\nand crime punishment. Investigation of an
\noffence is the field exclusively reserved for the
\nexecutive through the police department the
\nsuperintendence over which vests in the State
\nGovernment. The executive which is charged
\nwith a duty to keep vigilance over law and
\norder situation is obliged to prevent crime and if
\nan offence is alleged to have been committed it
\nis its bounden duty to investigate into the
\noffence and bring the offender to book. Once it
\ninvestigates and finds an offence having been
\ncommitted it is its duty to collect evidence for
\nthe purpose of proving the offence. Once that is
\ncompleted and the investigating officer submits
\nreport to the Court requesting the Court to take
\ncognizance of the offence under Section 190<\/a> of
\nthe Code its duty comes to an end. On a
\ncognizance of the offence being taken by the
\nCourt the police function of investigation comes
\nto an end subject to the provision contained in
\nSection 173(8)<\/a>, there commences the
\nadjudicatory function of the judiciary to
\ndetermine whether an offence has been
\ncommitted and if so, whether by the person or
\npersons charged with the crime by the police in
\nits report to the Court, and to award adequate
\npunishment according to law for the offence
\nproved to the satisfaction of the Court. There is
\nthus a well defined and well demarcated
\nfunction in the field of crime detection and its
\nsubsequent adjudication between the police and
\nthe Magistrate. This has been recognised way
\nback in King Emperor v. Khwaja Nazir
\nAhmad <\/p>\n
pp26. This view of the Judicial Committee
\nclearly demarcates the functions of the
\nexecutive and the judiciary in the field of
\ndetection of crime and its subsequent trial and
\nit would appear that the power of the police to
\ninvestigate into a cognizable offence is
\nordinarily not to be interfered with by the
\njudiciary. (emphasis is of ours)<\/p>\n
18.\t\tThe observations of this Court in M.C. Abraham &
\nAnr.Vs. State of Maharashtra & ors.  in this regard deserve
\nto be noticed.  In the said case it was held:\n<\/p>\n
The principle, therefore, is well settled that it is
\nfor the investigating agency to submit a report
\nto the Magistrate after full and complete
\ninvestigation. The Investigating agency may
\nsubmit a report finding the allegations
\nsubstantiated. It is also open to the
\ninvestigating agency to submit a report finding
\nno material to support the allegations made in
\nthe first information report. It is open to the
\nMagistrate concerned to accept the report or to
\norder further enquiry. But what is clear is that
\nthe Magistrate cannot direct the investigating
\nagency to submit a report that is in accord with
\nhis views. Even in a case where a report is
\nsubmitted by the investigating agency finding
\nthat no case is made out for prosecution, it is
\nopen to the Magistrate to disagree with the
\nreport and to take cognizance, but what he
\ncannot do is to direct the investigating agency to
\nsubmit a report to the effect that the allegations
\nhave been supported by the material collected
\nduring the course of investigation.<\/p>\n
19.\t\tIn State of West Bengal Vs. S.N. Basak , this
\nCourt reiterated the principle that the police has statutory
\nright to investigate into the circumstances of any alleged
\ncognizable offence without authority from a Magistrate and
\nthat power of the police to investigate cannot be interfered
\nwith by the exercise of power under the inherent power of the
\nHigh Court.  In Hazari Lal Gupta Vs. Rameshwar Prasad &
\nAnr. Etc. , this Court while explaining the nature and purport
\nof the inherent jurisdiction of the High Court observed that in
\nexercising jurisdiction under Section 561-A<\/a> of the Criminal
\nProcedure Code, 1898, the High Court can quash proceedings
\nif there is no legal evidence or if there is any impediment to the
\ninstitution or continuance of proceedings but the High Court
\ndoes not ordinarily enquire as to whether the evidence is
\nreliable or not.  Where again, investigation into the
\ncircumstances of an alleged cognizable offence is carried on
\nunder the provisions of the Criminal Procedure Code<\/a> the High
\nCourt dos not interfere with such investigation because it
\nwould then be the impeding investigation and jurisdiction of
\nstatutory authorities to exercise power in accordance with the
\nprovisions of the Code<\/a> of Criminal Procedure.\n<\/p>\n
20.\t\tIn Nirmaljit Singh Hoon Vs. The State of West
\nBengal & Anr.  this Court held that:\n<\/p>\n
The police authorities have under Sections 154<\/a>
\nand 156<\/a> of the Code a statutory right to
\ninvestigate into a cognizable offence without
\nrequiring any sanction from a judicial authority
\nand even the High Court has no inherent power
\nunder Section 561-A<\/a> of the Code to interfere
\nwith the exercise of that statutory power.<\/p>\n
21.\t\tIn  State of W.B. & Ors. Vs. Sujit Kumar Rana [
\n2004) 4 SCC 129],  this Court while dealing with the nature
\nof inherent powers of the High Court held that the inherent
\npower of the High Court is saved only where an order has been
\npassed by the Criminal Court which is required to be set aside
\nto secure the ends of justice or where the proceedings pending
\nbefore a court amounts to abuse of the process of Court.  The
\npower under Section 482<\/a> of the Code can be exercised by the
\nHigh Court in relation to a matter pending before a criminal
\ncourt or where a power is exercised by the Court under the
\nCode<\/a> of Criminal Procedure.\n<\/p>\n
22.\t\tIn our view, there is nothing like unlimited arbitrary
\njurisdiction conferred on the High Court under Section 482<\/a> of
\nthe Code.  The power has to be exercised sparingly, carefully
\nand with caution only where such exercise is justified by the
\ntests laid down in the Section itself.  It is well settled that
\nSection 482<\/a> does not confer any new power on the High Court
\nbut only saves the inherent power  which the court possessed
\nbefore the enactment of the Code<\/a>. There are three
\ncircumstances under which the inherent jurisdiction may be
\nexercised, namely (i) to give effect to an order under the Code<\/a>,\n<\/p>\n
(ii) to prevent abuse of the process of Court, and (iii) to
\notherwise secure the ends of justice.\n<\/p>\n
23.\t\tChandrachud, J. (as His Lordship then was), in
\nKurukshetra University Vs. State of Haryana  while
\nconsidering the nature of jurisdiction conferred upon the High
\nCourt under Section 482<\/a> of the Code observed:
\nIt ought to be realised that inherent powers do
\nnot confer an arbitrary jurisdiction on the High
\nCourt to act according to whim or caprice. That
\nstatutory power has to be exercised sparingly,
\nwith circumspection and in the rarest of rare
\ncases.<\/p>\n
24.\t\tShri P.P. Rao, learned Senior Counsel contended
\nthat in the instant case the High Court properly exercised its
\ninherent power in entertaining the grievance of  victim alleging
\nbias on the part of the Investigating Officer  which is also one
\nof the allegations made in the anonymous complaint.   The
\nsubmission was that the power available to the High Court
\nunder Section 482<\/a> of the Code is so wide and cannot be
\nsubjected to any limitation, except in cases where there is a
\nspecific provision in the Code<\/a> to provide adequate remedies to
\nthe aggrieved person.  The inherent power is co-extensive with
\nthe text of the Code<\/a> and it can be exercised in respect of any of
\nthe matters covered by the Code<\/a>, be it investigation, inquiry or
\ntrial.  The learned counsel in support of the submissions relied
\nupon the decisions of this Court in State of Karnataka Vs.
\nL. Muniswamy & Ors. ,     Central Bureau of Investigation
\nVs. Ravi Shankar Srivastava, IAS & Anr.   & Popular
\nMuthiah Vs. State Represented by Inspector of Police .\n<\/p>\n
25.\t\tIn Muniswamy (supra) the learned Sessions Judge
\nrefused to discharge the accused therein and proceeded for
\nframing specific charges as made out from the material on
\nrecord against the accused persons.  The High Court of
\nKarnataka in the exercise of its inherent power quashed the
\nproceedings initiated by the State of Karnataka and
\naccordingly discharged the accused.  The High Court as well
\nas this Court found that there was no material on the record
\non which any court could reasonably convict the accused for
\nany offence. It is under those circumstances this Court came
\nto the conclusion that it would be a sheer waste of public time
\nand money to permit the proceedings to continue against the
\naccused. In that regard this Court observed:\n<\/p>\n
The saving of the High Courts inherent
\npowers, both in civil and criminal matters, is
\ndesigned to achieve a salutary public purpose
\nwhich is that a court proceeding ought not to be
\npermitted to degenerate into a weapon of
\nharassment or persecution.<\/p>\n
26.\t \tIn  Central Bureau of Investigation  (supra) this
\nCourt cautioned that the inherent power should not be
\nexercised to stifle a legitimate prosecution and the High Court
\nshould refrain from giving a prima facie decision in a case
\nwhere the entire facts are incomplete  and hazy, more so when
\nthe evidence has not been collected and produced before the
\nCourt.\n<\/p>\n
27.\t\tIn Popular Muthiah (supra) this Court summarized
\nthe law as to when the High Court can exercise its inherent
\njurisdiction irrespective of the nature of the proceedings. The
\nlaw was stated in the following manner:\n<\/p>\n
(i)\tPower can be exercised suo motu in
\nthe interest of justice.  If such a power is
\nnot conceded, it may even lead to
\ninjustice to an accused.\n<\/p>\n
(ii)\tSuch a power can be exercised
\nconcurrently with the appellate or
\nrevisional jurisdiction and no formal
\napplication is required to be filed therefor.\n<\/p>\n
(iii)\tHowever, the power under Section
\n482<\/a> Cr.P.C. is not unlimited.  It can inter
\nalia be exercised where the Code<\/a> is silent,
\nwhere the power of the court is not
\ntreated as exhaustive, or there is a
\nspecific provision in the Code<\/a>; or the
\nstatute does not fall within the purview of
\nthe Code<\/a> because it involves application
\nof a special law.  It acts ex debito
\njustitiae.  It can, thus, do real and
\nsubstantial justice for which alone it
\nexists.<\/p>\n
28.\t\tIn our view, none of the decisions upon which
\nreliance has been placed lend any support to the submissions
\nmade by the learned counsel on behalf of the respondents.  On
\nthe other hand, in Popular Muthiah (supra)  this Court  held
\nthat the High Court  was not correct in issuing direction to
\ntake advice of the State Public Prosecutor as to under what
\nsection the appellant  therein has to be charged and tried  and
\ndirecting CB,CID to take up the matter and reinvestigate and
\nprosecute the appellant therein. Such a power does not come
\nwithin the purview of Section 482<\/a> of the Code of Criminal
\nProcedure. Investigation of an offence is a statutory power of
\nthe police.  The State in its discretion may get the investigation
\ndone by any agency unless there exists an extraordinary
\nsituation.   This  Court further held that the High Court
\ncannot issue directions to investigate the case from a
\nparticular angle or by a particular agency.\n<\/p>\n
29.\t\tThe question that arises for our consideration is
\nwhether the contents of the petition submitted by the victim
\nand as well as the allegations made in the anonymous
\ncomplaint reveal any cause for issuing directions relieving the
\nInvestigating Officer of his statutory power and duty to
\ninvestigate Crime No. 381 of 2005 under Section 376(g)<\/a> of the
\nIndian Penal Code?\n<\/p>\n
30.\t\tThe allegations in the anonymous complaint are in
\ntwo parts.  The first part relates to Crime No. 381 of 2005
\nwherein it is alleged that investigation in crime has been put
\nto cold storage due to influence exerted at high places.  This is
\nrequired to be considered along with the petition sent by the
\nvictim herself making certain allegations against the police in
\ngeneral.    The allegations are against two police constables
\nthat they have tortured her mentally in connection with the
\ninvestigation of the case.  She complained that truth will never
\ncome out if the case is entrusted to the police for investigation.
\nShe prayed for a confidential investigation.   Neither the
\nanonymous petition nor the complaint made by the victim has
\nbeen directed against the  Investigating Officer  complaining of
\nany bias or any attempt on his part to destroy the available
\nevidence.\n<\/p>\n
31.\t\tBe it noted that Thankappan, J.  vide order dated
\n22.12.2005 having perused the file including the petition
\nsubmitted by the victim  directed the matter   to be closed  as
\nit required no further probe.\n<\/p>\n
32.\t\tBe that as it may, Crime No. 381 of 2005 itself was
\nregistered pursuant to the order of the Magistrate under
\nSection 156<\/a> (3) of the Code<\/a>.  We are unable to appreciate as to
\nhow the learned Judge could have ordered investigation by
\nSpecial Investigation Team constituted by himself on the
\nstrength of such wild, imaginary and vague allegations.  It is
\ndifficult to discern the basis for arriving at the conclusion that
\nthe entire attempt of the Investigating Officer was to exonerate
\nthe accused and make the complainant as accused.  The
\ninvestigation was in progress as is evident from the case diary.
\nThe Special Investigation Team also proceeded on the same
\nlines as that of the Investigating Officer and similar
\nobservations as the one made by the Investigating Officer are
\nto be found in the report of the Special Investigation Team
\nsubmitted to this Court.  The facts gathered by the
\nInvestigating Officer about the victim were part of the result of
\nthe investigation.   This Court in M.C. Mehta Vs. Union of
\nIndia  [(2007) 1 SCC 110]   upon analysis of the relevant
\nprovisions of the Code<\/a>  held that after completion of the
\ninvestigation if it appears to the Investigating Officer that there
\nis no sufficient evidence, he may decide to release the
\nsuspected accused.  If, it appears to him that there is
\nsufficient evidence or reasonable ground to place the accused
\non trial, he has to take necessary steps under Section 170<\/a> of
\nthe Code. In either case, on completion of the investigation  he
\nhas to submit a report to the Magistrate under Section 173<\/a> of
\nthe Code in the prescribed form who is required to consider
\nthe report judicially for taking appropriate action thereof.  We
\ndo not propose to deal with the options available in law to the
\nMagistrate and even to a victim or informant as the case may
\nbe.\n<\/p>\n
33.\t\tThe sum and substance of the above deliberation
\nand analysis of the law cited leads us to an irresistible
\nconclusion that the investigation of an offence is the field
\nexclusively reserved for the police officers whose powers in
\nthat field are unfettered so long as the power to investigate
\ninto the cognizable offences is legitimately exercised in strict
\ncompliance with the provisions under Chapter XII of the Code.
\nHowever, we may hasten to add that unfettered discretion
\ndoes not mean any unaccountable or unlimited discretion and
\nact according to ones own choice.   The power to investigate
\nmust be exercised strictly on the condition of which that power
\nis granted by the Code<\/a> itself.\n<\/p>\n
34.\t\tIn our view, the High Court in exercise of its
\ninherent jurisdiction cannot change the Investigating Officer in
\nthe midstream   and appoint any agency of its own choice to
\ninvestigate into a crime on whatsoever basis and more
\nparticularly on the basis of complaints or anonymous petitions
\naddressed to a named Judge. Such communications cannot be
\nconverted into suo motu proceedings for setting the law in
\nmotion. Neither the accused nor the complainant or informant
\nare entitled to choose their own investigating agency to
\ninvestigate a crime in which they may be interested.\n<\/p>\n
35.\t\tIt is altogether a different matter that the High
\nCourt in exercise of its power under Article 226<\/a> of the
\nConstitution of India can always issue appropriate directions
\nat the instance of an aggrieved person if the High Court is
\nconvinced that the power of investigation has been exercised
\nby an Investigating Officer mala fide.  That power is to be
\nexercised in rarest of the rare cases where a clear case of
\nabuse of power and non-compliance with the provisions falling
\nunder Chapter XII of the Code is clearly made out requiring
\nthe interference of the High Court.  But even in such cases,
\nthe High Court cannot direct the police as to how the
\ninvestigation is to be conducted but can always insist for the
\nobservance of process as provided for in the Code<\/a>.\n<\/p>\n
36\t\tEven in cases where no action is taken by the police
\non the information given to them, the informants remedy lies
\nunder Sections 190<\/a>, 200<\/a> Cr. P.C., but a Writ Petition in such a
\ncase is not to be entertained.  This Court in Gangadhar
\nJanardan Mhatre Vs. State of Maharashtra & ors.   held:\n<\/p>\n
When the information is laid with the police,
\nbut no action in that behalf is taken, the
\ncomplainant is given power under Section 190<\/a>
\nread with Section 200<\/a> of the Code to lay the
\ncomplaint before the Magistrate having
\njurisdiction to take cognizance of the offence
\nand the Magistrate is required to enquire into
\nthe complaint as provided in Chapter XV of the
\nCode.  In case the Magistrate after recording
\nevidence finds a prima facie case, instead of
\nissuing process to the accused, he is
\nempowered to direct the police concerned to
\ninvestigate into offence under Chapter XII of the
\nCode and to submit a report.  If he finds that
\nthe complaint does not disclose any offence to
\ntake further action, he is empowered to dismiss
\nthe complaint under Section 203<\/a> of the Code.  In
\ncase he finds that the complaint\/evidence
\nrecorded prima facie discloses an offence, he is
\nempowered to take cognizance of the offence
\nand would issue process to the accused.  These
\naspects have been highlighted by this Court in
\nAll India Institute of Medical Sciences
\nEmployees Union (Regd.) V. Union of India<\/a> .  It
\nwas specifically observed that a writ petition in
\nsuch cases is not to be entertained.<\/p>\n
WHETHER THE HIGH COURT WAS JUSTIFIED IN
\nENTERTAINING ANONYMOUS PETITION?\n<\/p>\n
37.\t\tThe second part of the anonymous letter relates to
\nallegations that: (a) in the past two years number of
\nunidentified dead bodies were found on the National Highway
\nand the railway track situated near to the Retreat Centre; (b)
\nthere is a practice of burying the dead bodies in the public
\nburial ground without following any procedure; (c) recently the
\ndead body of a lady aged about 30 years was entrusted with
\none Karyavelu  for burying the dead body in the burial ground.
\nWhen the dead body was taken for burial, Karyavelu noticed
\nnumber of injuries on that dead body.  He is alleged to have
\ninformed the Priest of the Divine Centre that henceforth he will
\nnot undertake any burial of such bodies. It is alleged that
\nKaryavelu himself died in the suspicious circumstances and a
\ncase was registered under the caption unnatural death; (d)
\nthere is a gang in the retreat centre and one  Sr. Teresa and
\ntwo helpers were helping the gang to carry on anti-social
\nactivities.  It is alleged that the leader of the gang is Rev.
\nFather Mathew Thadathil.  Sibi   was his right hand person
\nwho also died under  the mysterious circumstances.\n<\/p>\n
38.\t\tOne of the documents enclosed to the anonymous
\npetition is a magazine by name Divine Voice published by the
\nappellant.  In one of the volumes published in June, 2005 the
\nnames of senior I.A.S and I.P.S officers were mentioned as the
\nmembers of the Advisory Board; one such named officer is
\nstated to have decided some matter in favour of the appellant.
\nThe High Court in writ petition (c) No. 22543\/05 made some
\nobservations to the effect that the said officer was really
\nassociated with the appellant centre, the order passed by that
\nofficer in favour of the appellant is a nullity.  Thereafter the
\nname of that officer was deleted from the names of persons of
\nthe Advisory Board. Based on such vague and indefinite
\nallegations the High Court gave the following directions
\nwithout even issuing notice to the appellant:\n<\/p>\n
(i)\tGovernment shall issue notification under
\nSection 17<\/a> of the Prevention of Corruption Act
\nconferring power to the Special Investigation
\nTeam constituted by the court to investigate
\nthe offences under the Prevention of
\nCorruption Act<\/a>;\n<\/p>\n
(ii)\tThe Special Investigation Team shall also
\ninquire into the allegations of foreign exchange
\nviolation;\n<\/p>\n
(iii)\tThe Special Investigation Team shall also
\ninquire into the allegations of unnatural
\ndeaths stated in the petition.\n<\/p>\n
39.\t\tThe Special Investigation Team was entrusted with
\npower to investigate into any other cognizable offence in case
\nthe Team gets information about the commission of any such
\ncognizable offence. The learned Judge accordingly issued
\nappropriate directions to the Government, the Director
\nGeneral of Police and all other departments of the Government
\nto cooperate and render necessary assistance to the Special
\nInvestigation Team.\n<\/p>\n
40.\t\tOn a careful perusal of the order passed by the
\nlearned Judge, we find that the learned Judge initiated suo
\nmotu proceedings without even examining as to whether the
\ncontents of the anonymous letter and material sent along with
\nit disclosed any prima facie case for ordering an investigation.
\nThe question is:  can investigation be ordered by the High
\nCourt in exercise of its inherent jurisdiction under Section 482<\/a>
\nof the Code based on such vague and indefinite allegations
\nmade in unsigned petition without even arriving at any prima
\nfacie conclusion that the contents thereof reveal commission of
\nany cognizable offence? Whether such directions could have
\nbeen issued by the High Court even in exercise of its
\njurisdiction under Article 226<\/a> of the Constitution of India?\n<\/p>\n
41.\tIn Secretary, Minor Irrigation & Rural Engineering
\nServices, U.P. and Ors. Vs. Sahngoo Ram Arya and Anr.  ,
\nthis Court took the view that a decision to direct an enquiry
\nagainst a person can only be done if the High Court after
\nconsidering the material on record comes to a conclusion that
\nsuch material does disclose a prima facie case calling for an
\ninvestigation by an Investigating Agency, and the same cannot
\nbe done as a matter of routine or merely because a party
\nmakes some such allegations.  This Court relying upon its
\nearlier decision in Common Cause, A Registered Society Vs.
\nUnion of India & ors.    held that a direction for
\ninvestigation can be given only if an offence is, prima facie,
\nfound to have been committed or a persons involvement is
\nprima facie established, but a direction to investigate whether
\nany person has committed an offence or not cannot be legally
\ngiven.\n<\/p>\n
42.\t\tJust to point out that there is no prima facie finding
\nby the High Court while directing an investigation by the
\nimpugned order, we would like to quote the following few
\nsentences:\n<\/p>\n
7. \tAs I have already stated there are various
\nother allegations leveled against the Retreat
\nCentre.  One of the documents produced in a
\nmagazine the front page of a publication by
\nname Divine Voice published by the Divine
\nRetreat Centre at Muringoor.  It is captioned as
\na spiritual congregation of the Government
\nOfficials.  In the 9th volume published in June
\n2005, the names of a Senior I.A.S. Officer and a
\nSenior I.P.S. Officer, were stated as the
\nmembers of the Advisory Board.  It is seen that
\na Writ Petition was filed against the Retreat
\nCentre by an orphanage as W.P.(C) No. 22543
\nof 2005 before this Court in which a specific
\nallegation of bias was raised against that I.A.S.
\nOfficer.  It was alleged that she was associated
\nwith the running of the Divine Retreat Centre.
\nThis Court held that if she is really associated
\nwith the Retreat Centre, the order passed by
\nthe appellate authority in that case is nullity.
\nStrangely enough from the next month onwards,
\nthe name of that officer was deleted from the
\nlist of names of persons in the Advisory Board.
\nBut still the name of a Senior I.P.S. Officer is
\nstated as the member of the Advisory Board. It
\nis necessary to investigate the role of
\nGovernment Officials in the running of the
\nCentre and whether any of such public servants
\nhave committed the offences punishable under
\nthe provisions of the P.C. Act<\/a> and take
\nappropriate action taken.  Along with the
\ncomplaint a number of documents and three
\nCDs are enclosed.  In the paper cuttings
\nappended in the petition, it is alleged that a
\nnumber of deaths took place under mysterious
\ncircumstances in and around the Retreat
\nCentre.  There is allegation of receipt of foreign
\nmoney without proper authority.  It is also
\nnecessary to enquire into the allegation that the
\nCentre is getting foreign aid in violation of
\nForeign Exchange Law and take appropriate
\naction in accordance with law if any violation is
\nestablished.  In view of the allegation that
\nSenior I.A.S. and I.P.S. Officers, are associated
\nwith the functioning of the Retreat Centre, and
\nbecause of the allegations leveled against the
\nInvestigating Officer, I am of the view that it is
\nonly just and proper that the investigation of
\nCrime No. 381 of 2005 is taken away from the
\npresent Investigation Officer which is entrusted
\nwith a Senior Police Officer below the rank of
\nInspector General of Police.  It is also necessary
\nto see that the person who is appointed is
\nhaving some knowledge about the working of
\nthe Retreat Centre.\n<\/p>\n
10.\tThe Special Investigation Team shall also
\nenquire into the allegation of unnatural deaths
\nstated in the petition.  The team shall enquire
\nas to whether a person by name Karyavelu
\nworked in the burial ground and whether he
\ndied under mysterious circumstances.  In any
\ncase was registered in connection with the
\ndeath of Karyavelu the present stage of that
\ninvestigation shall be verified and appropriate
\naction taken.  The Team shall also enquire
\nwhether there was a person by name Raju
\nattached to the Retreat Centre and whether he
\ndied under suspicious circumstances.  In case
\nthe team gets information regarding any
\ncognizable offences, those matters shall also be
\ninvestigated in accordance with law.<\/p>\n
From the above, we find that the High Court has merely
\nquoted certain allegations made against the appellant and
\nothers and proceeded on the basis of  those allegations made
\nin the anonymous petition without forming  any prima facie
\nopinion  with regard to those allegations.\n<\/p>\n
43.\t\tIt is evident from Sections 154<\/a>, 156<\/a> and 157<\/a> of the
\nCode that even a police officer can act on the basis of
\ninformation received or otherwise and proceed to investigate
\nprovided he has reason to suspect the commission of a
\ncognizable offence which he is empowered to investigate under
\nSection 156<\/a> Cr.P.C.  If the essential requirements of the penal
\nprovisions are not prima facie disclosed by a First Information
\nReport and the police officer has no reason to suspect the
\ncommission of a cognizable offence, no investigation can be
\nundertaken by him based on the information received or
\notherwise.  Can the High Court  set the law in motion against
\nthe named and unnamed individuals based on the information
\nreceived by it without recording the reasons that the
\ninformation received by it prima facie disclosed the
\ncommission of a cognizable offence.  Setting Criminal Law in
\nmotion is fraught with serious consequences, which cannot
\nlightly be undertaken by the High Court even in exercise of its
\njurisdiction under Article 226<\/a> of the Constitution of India.  In
\nour view, the High Court in exercise of its whatsoever
\njurisdiction cannot direct investigation by constituting a
\nSpecial Investigation Team on the strength of anonymous
\npetitions.  The High Courts cannot be converted into Station
\nHouses.\n<\/p>\n
PRINCIPLES OF NATURAL JUSTICE: WHETHER THE
\nAPPELLANT HAS NO LOCUS?\n<\/p>\n
44.\t\tThe order directing the investigation on the basis of
\nsuch vague and indefinite allegations undoubtedly is in the
\nteeth of principles of natural justice.   It was, however,
\nsubmitted that accused gets a right of hearing only after
\nsubmission of the charge-sheet, before a charge is framed or
\nthe accused is discharged vide Sections 227<\/a> & 228<\/a> and 239<\/a>
\nand 240<\/a> Cr.P.C.  The appellant is not an accused and,
\ntherefore,  it was not entitled for any notice from the High
\nCourt before passing of the impugned order.  We are
\nconcerned with the question as to whether the High Court
\ncould have  passed a judicial order directing investigation
\nagainst the appellant and its activities without providing an
\nopportunity of being heard to it.   The case on hand is a case
\nwhere the criminal law is directed to be set in motion on the
\nbasis of the allegations made in anonymous petition filed in
\nthe High Court.  No judicial order can ever be passed by any
\ncourt  without providing a reasonable opportunity of being
\nheard to the person likely to be affected by such order and
\nparticularly  when such order results in drastic consequences
\nof affecting ones own reputation.   In our view, the impugned
\norder of the High Court  directing enquiry and investigation
\ninto allegations in respect of which not even any
\ncomplaint\/information has been lodged   with the police is
\nviolative of principles of natural justice.\n<\/p>\n
45.\t\tIt is unnecessary to go into the question as to
\nwhether Divine Retreat Centre is not a person contemplated
\nby Article 21<\/a> of the Constitution and express any opinion as to
\nwhether any right guaranteed by Article 21<\/a> of the Constitution
\nhas been infringed.  Suffice it to note that, the Director of the
\nappellant  institution has been impleaded as a party
\nrespondent in the criminal petition and the whole of the
\nallegations in the anonymous petition are leveled against the
\nappellant and in such a situation it was imperative for the
\nHigh Court to put the appellant on notice before passing the
\nimpugned order.\n<\/p>\n
\t\tThe appellant undoubtedly is aggrieved by the
\nimpugned order and, therefore, entitled to invoke the
\njurisdiction of this Court under Article 136<\/a> of the Constitution
\nof India.   The decisions in  Janata Dal Vs. H.S. Chowdhary
\n(supra) and Union of India & Anr. Vs.W.N. Chadha  laying
\ndown the law that hearing to the accused is provided by the
\nCode<\/a> under specified circumstances are not relevant to decide
\nthe issue of locus in cases where challenge is to a judicial
\norder under which institutions and\/or persons connected
\ntherewith are subjected to inquiry and investigation.\n<\/p>\n
46.\t\t Here is a case where no information has been given
\nto the police by any informant alleging commission of any
\ncognizable offence by the appellant and the persons associated
\nwith the appellant  institution.  It is a peculiar case of its own
\nkind where an anonymous petition is sent directly in the name
\nof a learned judge of the Kerala High Court, which was suo
\nmotu taken up as a proceeding under Section 482<\/a> of the Code.
\nThe High Court ought not to have entertained such a petition
\nfor taking the same on file under Section 482<\/a> of the Code.\n<\/p>\n
47.\t\t  It was contended that nomenclature of the petition
\nis not decisive.  The High Court can exercise power suo motu
\neither under Article 226<\/a> or under Section 482<\/a> Cr. P.C. or
\nunder both.  It was submitted that if for any reason the
\npetition entertained by the High Court is held not
\nmaintainable under Section 482<\/a> of the Code, the same can
\nalways be treated as the one filed under Article 226<\/a> of the
\nConstitution of India.  Reliance was placed upon the
\nobservations made by this Court in Pepsi Foods Vs. Special
\nJudicial Magistrate .   The decision in Pepsi Foods
\n(supra) is an authority for the proposition that nomenclature
\nunder which petition is filed is not quite relevant and that does
\nnot debar the court from exercising its jurisdiction which
\notherwise it possesses unless there is special procedure
\nprescribed which procedure is mandatory.  This Court took
\nthe view that if the court finds that the appellant could not
\ninvoke its jurisdiction under Article 226<\/a>, the court can
\ncertainly treat the petition as one under Article 227<\/a> or Section
\n482<\/a> of the Code.  The observations were made in the context of
\ncorrecting grave errors that might be committed by the
\nsubordinate courts.  The decision does not lay down any law
\nthat the High Court in exercise of its power under Section 482<\/a>
\nof the Code or Article 227<\/a> may be resorted to constitute any
\nspecial Investigating Agency to investigate into allegations
\nmade for the first time in an anonymous petition.\n<\/p>\n
48.\tIn our view, the whole of public law remedies
\navailable under Article 226<\/a> of the Constitution of
\nIndia  and the constituent power to issue writs in
\nthe natu\n<\/p>\n
49.\tpp\n<\/p>\n
50.\tpre of mandamus, certiorari, prohibition and co-
\nwarranto are neither echoed nor transplanted
\ninto Section 482<\/a>.  May be both the powers to
\nissue writs and pass appropriate orders under
\nSection 482<\/a> of the Code are conferred upon the
\nHigh Court but they undoubtedly operate in
\ndifferent fields.\n<\/p>\n
WHETHER THE ANONYMOUS PETITION IS TO BE
\nTREATED AS PUBLIC INTEREST LITIGATION ?\n<\/p>\n
49.\t\t The question that falls for our consideration is
\nwhether the anonymous letter sent in the name of a Judge can
\nbe entertained as Public Interest Litigation?  It is well settled
\nthat a public interest litigation can be entertained by the
\nConstitutional Courts only at the instance of a bona fide
\nlitigant.  The author of the letter in this case is anonymous,
\nthere is no way to verify his bonafides and in fact no effort was
\nmade by the Court to verify about the authenticity, truth or
\notherwise of the contents of the petition.     It is not the case of
\nthe appellant that no Writ Petition under Article 226<\/a> of the
\nConstitution of India can be entertained on the strength of a
\nletter addressed by a bona fide litigant to the High Court.  This
\nCourt in Sunil Batra (II) Vs. Delhi Administration  has
\naccepted a letter written to the Supreme Court by one Sunil
\nBatra, a prisoner from Tihar Jail, Delhi complaining of
\ninhuman torture in the jail.   In Dr. Upendra Baxi (I) Vs.
\nState of U.P. , this Court entertained letter sent by the two
\nProfessors of Delhi University seeking enforcement of the
\nconstitutional right of the inmates in a Protective Home, at
\nAgra who were living in inhuman and degrading conditions.  In
\nMiss Veena Sethi V. State of Bihar , this Court treated
\nletter addressed to a Judge of this Court by the Free Legal Aid
\nCommittee at Hazaribagh, Bihar as a writ petition.   In
\nCitizens for Democracy through its President Vs. State of
\nAssam & ors.  upon which reliance has been placed by Shri
\nP.P. Rao,  this Court  entertained a letter addressed by Shri
\nKuldip Nayar, an eminent journalist, in his capacity as
\nPresident of Citizens for Democracy to one of the judges of
\nthis Court complaining of human rights violations of TADA
\ndetenues and the same was treated as a petition under Article
\n32<\/a> of the Constitution of the India.    But in none of these
\ncases, the Court entertained anonymous petition and
\nconverted the same into a Public Interest Litigation.  We do not
\npropose to burden this judgment with various authoritative
\npronouncements of this Court laying down the parameters of
\nPublic Interest Litigation.  Suffice it to recapitulate that this
\nCourt uniformly and consistently held that the individual who
\nmoves the court for judicial redress in cases of Public Interest
\nLitigation must be acting bone fide with a view to vindicating
\nthe cause of justice and not for any personal gain or private
\nprofit or of the political motivation or other oblique
\nconsideration.  The Court should not allow itself to be
\nactivised at the instance of such person and must reject his
\napplication at the threshold, whether it be in the form of a
\nletter addressed to the court or even in the form of a regular
\npetition filed in Court.  In S.P. Gupta & ors. Vs. President of
\nIndia & ors.  , this Court in clear and unequivocal terms
\nobserved that it would be prudent for the constitutional courts
\nto confine this strategic exercise of jurisdiction to cases where
\nlegal wrong or legal injury is caused to a determinate class or
\ngroup of persons or the constitutional or legal right of such
\ndeterminate class or group of persons is violated and as far as
\npossible, not entertain cases of individual wrong or injury at
\nthe instance of a third party, where there is an effective legal-
\naid organization which can take care of such cases. <\/p>\n
50.\t\tThe law in this regard is summarized in Janata
\nDal Vs. H.S. Chowdhary  thus:\n<\/p>\n
It is thus clear that only a person acting bona
\nfide and having sufficient interest in the
\nproceeding of PIL will alone have a locus standi
\nand can approach the Court to wipe out the
\ntears of the poor and needy, suffering from
\nviolation of their fundamental rights, but not a
\nperson for personal gain or private profit or
\npolitical motive or any oblique consideration.
\nSimilarly, a vexatious petition under the colour
\nof PIL brought before the Court for vindicating
\nany personal grievance, deserves rejection at
\nthe threshold.<\/p>\n
51.\t\tIn Dattaraj Nathuji Thaware Vs. State of
\nMaharashtra & ors.  this Court observed:\n<\/p>\n
The attractive brand name of public interest
\nlitigation should not be used for suspicious
\nproducts of mischief.  It should be aimed at
\nredressal of genuine public wrong or public
\ninjury and not be publicity-oriented or founded
\non personal vendetta.  As indicated above, court
\nmust be careful to see that a body of persons or
\nmember of the public, who approaches the court
\nis
\n acting bona fide and not for personal gain or
\nprivate motive or political motivation or other
\noblique considerations.  The Court must not
\nallow its process to be abused for oblique
\nconsiderations by masked phantoms who
\nmonitor at times from behind.  Some persons
\nwith vested interest indulge in the pastime of
\nmeddling with judicial process either by force of
\nhabit or from improper motives, and try to
\nbargain for a good deal as well as to enrich
\nthemselves.  Often they are actuated by a
\ndesire to win notoriety or cheap popularity.  The
\npetitions of such busybodies deserve to be
\nthrown out by rejection at the threshold, and in
\nappropriate cases with exemplary costs.<\/p>\n
52.\t\tIn State of West Bengal & ors. Vs. Sampat Lal &
\nOrs. , this Court administered a caution stating when
\ncommunications complaining of violation of rights of the
\ndeprived and vulnerable sections of the community are sent to
\nthe court, care and caution should be adopted to ensure that
\nthe process of the court is not abused or misused.  The Court
\nshould be prima facie satisfied that the information laid before
\nit is of such a nature that it calls for examination and this
\nprima facie satisfaction may be derived from the credentials of
\nthe informant, namely, what is the character or standing of
\nthe informant or from the nature of the information given by
\nhim, namely, whether it is vague and indefinite or contains
\nspecific allegations as a result of survey or investigation or
\nfrom the gravity or seriousness of the complaint set out in the
\ninformation or from any other circumstance or circumstances
\nappearing from the communication addressed to the court or
\nto a Judge of the court on behalf of the court.  <\/p>\n
53.\t\tHow to verify the credentials,  character or standing
\nof the informant who does not disclose his identity?  In the
\ninstant case, there is no whisper in the order passed by the
\nHigh Court about any attempts made to verify the credentials,
\ncharacter or standing of the informant. Obviously, the High
\nCourt could not have verified  the same since the petition
\nreceived by it is an unsigned one.\n<\/p>\n
54.\t\tIn Bandhua Mukti Morcha Vs. Union of India &
\nors. (supra), this Court visualized grave danger inherent in a
\npractice where a mere letter is entertained as a petition from a
\nperson whose antecedents and status are unknown or so
\nuncertain that no sense of responsibility can, without
\nanything more, be attributed to the communication.  It has
\nbeen observed that the document petitioning the court for
\nrelief should be supported by satisfactory verification. This
\nrequirement is all the greater where petitions are received by
\nthe Court through the post.  It is never beyond the bound of
\npossibility that an unverified communication received through
\nthe post by the Court may in fact have been employed mala
\nfide, as an instrument of coercion or blackmail or other
\noblique motive against a person named therein who holds a
\nposition of honour and respect in society.  The Court must be
\never vigilant against the abuse of its process.  It cannot do that
\nbetter in the matter than insisting at the earliest stage, and
\nbefore issuing notice to the respondent, that an appropriate
\nverification of the allegations be supplied.\n<\/p>\n
55.\t\tIn our view, the Public Interest Litigant must
\ndisclose his identity so as to enable the court to decide that
\nthe informant is not a wayfarer or officious intervener without
\nany interest or concern.\n<\/p>\n
56.\t\tIn such view of the matter the suo motu action
\ninitiated cannot be treated as the one in public interest
\nlitigation.\n<\/p>\n
THE IMPORTANCE OF ROSTER:\n<\/p>\n
57.\t\t It is clear from the record that the learned Judge
\nwas not dealing with any public interest litigation cases as on
\nthe date of entertaining anonymous petition.\tIt is beyond
\npale of any doubt and controversy that the administrative
\ncontrol of the High Court vests in the Chief Justice of the High
\nCourt alone and it is his prerogative to distribute business of
\nthe High Court both judicial and administrative; that the Chief
\njustice is the master of the roster.  He alone has the
\nprerogative to constitute benches of the court and allocate
\ncases to the benches so constituted; and the puisne judges
\ncan only do that work as is allotted to them by the Chief
\nJustice or under his directions; that the puisne judges cannot
\npick and choose any case pending in the High Court and
\nassign the same to himself or themselves for disposal without
\nappropriate orders of the Chief Justice.  (See State of
\nRajasthan Vs. Prakash Chand & Ors. )<\/p>\n
58.\t\tThis Court in more than one case expressed its
\nreservation about individual judges entertaining the
\ncommunications and petitions addressed to them to pass
\norders on judicial side. In Bandhua Mukti Morcha Vs. Union
\nof India & ors. ,  the Court in clear and unequivocal terms
\ndeclared that communications and petitions addressed to a
\nparticular judge are improper and violate the institutional
\npersonality of the court.  They also embarrass the Judge to
\nwhom they are personally addressed.  The fundamental
\nconception of the Court must be respected, that it is a single
\nindivisible institution, of united purpose and existing solely for
\nthe high constitutional functions for which it has been
\ncreated.  The conception of the Court as a loose aggregate of
\nindividual Judges, to one or more of whom judicial access may
\nbe particularly had, undermines its very existence and
\nendangers its proper and effective functioning.  <\/p>\n
59.\t\tIn our view, the learned judge ought not to have
\nentertained the anonymous petition, contents of which remain
\nunverified and made it basis for setting the law in motion as
\nagainst the appellant as he was not entrusted with the judicial
\nduty of disposing of PIL matters.\n<\/p>\n
60.\t\tInstitutions own reputation is a priceless treasure.
\nHistory teaches us that the independence of the judiciary is
\njeopardized when courts become embroiled in the passions of
\nthe day and assume primary responsibility to resolve the
\nissues which are otherwise not entrusted to it by adopting
\nprocedures which are otherwise not known.\n<\/p>\n
61.\t\tThere is heavy duty cast upon the constitutional
\ncourts to protect themselves from the onslaught unleashed by
\nunscrupulous litigants masquerading as Public Interest
\nLitigants.  The individual judges ought not to entertain
\ncommunications and letters personally addressed to them and
\ninitiate action on the judicial side based on such
\ncommunication so as to avoid embarrassment; that all
\ncommunications and petitions invoking the jurisdiction of the
\ncourt must be addressed to the entire Court, that is to say, the
\nChief Justice and his companion Judges.  The individual
\nletters, if any, addressed to a particular judge are required to
\nbe placed before the  Chief Justice for consideration as to the
\nproposed action on such petitions.  Each Judge cannot decide
\nfor himself as to what communication should be entertained
\nfor setting the law in motion be it in PIL or in any jurisdiction.\n<\/p>\n
62.\t\tIt is needless to say that none of  these aspects have
\nbeen taken into consideration by the High Court before setting
\nthe criminal law in motion as against the appellant. The
\nsweeping directions issued by the Court are in the nature of
\nordering an inquisition against the appellant and the persons
\nconnected with it to find out as to whether they have
\ncommitted any cognizable offence.  Such a course is
\nimpermissible in law.\n<\/p>\n
63.\t\tFor the aforesaid reasons, directions issued by the
\nHigh Court constituting the Special Investigation Team to
\ninvestigate into the allegations made in anonymous petition
\nare set aside.\n<\/p>\n
RELIEF<\/p>\n
64.\tHowever, the fact remains that the Circle Inspector of
\nPolice, Chalakuddy  having  registered Crime No. 381 of 2005
\nmade investigation in exercise of statutory power coupled with
\nduty under the orders of learned Judicial First Class
\nMagistrate, Chalakuddy.  The learned Judge having
\nentertained the petition\/complaint from the victim ordered
\nfurther investigation into the crime by the Special
\nInvestigation Team headed by the third respondent.  The third
\nrespondent having  completed the investigation arrived at
\ncertain conclusions but  unnecessarily kept  the matter
\npending on the ground that the paternity of the first child is
\nto be verified with the accused and some other persons who
\nwere also found closely associated with the victim during the
\nrelevant period.  This is beyond ones imagination as to how
\nand why such an inquiry is required to be made.   The First
\nInformation Report, material gathered during the
\ninvestigation, contents of the victims complaint and
\nconclusions drawn by the Special Investigation Team
\nthemselves do not justify any such further enquiry.\n<\/p>\n
65.\t\t In the circumstances of the case, we direct the
\nthird respondent to make available the material gathered
\nduring the course of investigation in Crime No. 381 of 2005
\nto the Circle Inspector of Police, Chalakuddy (Investigating
\nOfficer)  within two weeks  from the date of  the receipt of copy
\nof this order.   Thereafter, the Investigating Officer shall
\nsubmit appropriate report in accordance with the provisions of
\nthe Code<\/a>  within four weeks before the Magistrate  who shall
\nconsider the report to be so filed judicially in accordance with
\nlaw.\n<\/p>\n
66.\t\tWe make it clear that we have not expressed any
\nopinion whatsoever on the merits of the case.\n<\/p>\n
67.\t\tSubject to the above directions the impugned order
\nof the High Court is set aside. The appeal is accordingly
\nallowed.\n<\/p>\n
68.\t\tSince the question is one of general importance, we
\nwould direct the copies of this judgment should be sent to the
\nHigh Courts in all the States.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Divine Retreat Centre vs State Of Kerala & Ors on 11 March, 2008 Author: B S Reddy Bench: S.H. Kapadia, B. Sudershan Reddy CASE NO.: Appeal (crl.) 472 of 2008 PETITIONER: Divine Retreat Centre RESPONDENT: State of Kerala & Ors. DATE OF JUDGMENT: 11\/03\/2008 BENCH: S.H. KAPADIA & B. SUDERSHAN REDDY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-259652","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDivine Retreat Centre vs State Of Kerala & Ors on 11 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/divine-retreat-centre-vs-state-of-kerala-ors-on-11-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Divine Retreat Centre vs State Of Kerala & Ors on 11 March, 2008 - 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