Kerala High Court
Sunilkumar Nair vs Director Of Vigilance And ... on 27 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
WP(C) NO. 6867 OF 2020
PETITIONER:
SUNILKUMAR NAIR,
AGED 42 YEARS
S/O. BHASKARN NAIR, POOVATHUMMOOTTIL HOUSE,
PULLAD P.O, VARAYANNUR, PATHANAMTHITTA, PIN 689
548, NOW RESIDING AT FLAT NO. 2, TF KANHAIYA
ARCADE-1, VYANKATESH CITY-2, BESA-NAGPUR-440027
HOLDER OF ATTORNEY HOLDER SANTHOSH KUMAR C.S,
AGED 36 YEARS, S/O. THE LATE SOMASEKHARAN NAIR,
VANDANTHU HOUSE, PULLAD P.O, KOIPURAM,
PATHANAMTHITTA DISTRICT, PIN 689 548, AADHAR CARD
NO. 475205113489
BY ADVS.
C.S.MANU
SRI.S.K.PREMRAJ
RESPONDENTS:
1 DIRECTOR OF VIGILANCE AND ANTI-CORRUPTION BUREAU,
THIRUVANANTHAPURAM, PIN 695 001
2 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)
PATHANAMTHITTA, PIN 689 101
3 PULLAD SERVICE CO-OPERATIVE BANK LIMITED NO.
1375,
PULLAD, PATHANAMTHITTA DISTRICT, PIN 689 548,
REPRESENTED BY ITS SECRETARY.
4 ADDL.R4. THE SECRETARY,
DEPARTMENT OF CO-OPERATION, GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN-695 001.
IS IMPLEADED AS PER ORDER DATED 23-02-21 IN
IA 1/21
SRI A RAJESH SPL PP VACB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.08.2021, THE COURT ON 27.08.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.6867/2020
2
"CR"
R.NARAYANA PISHARADI, J
**********************
W.P.(C) No.6867 of 2020
-------------------------------------
Dated this the 27th day of August, 2021
-------------------------------------------
JUDGMENT
The writ petitioner is said to be a member of the Pullad
Service Co-operative Bank (hereinafter referred to as 'the Bank').
2. The petitioner made Ext.P1 complaint dated
25.01.2020 to the first respondent, the Director of the Vigilance
and Anti-Corruption Bureau (VACB), regarding commission of the
offences of misappropriation, forgery and falsification of accounts
by the Secretary of the Bank.
3. The grievance of the petitioner is that the first
respondent, though he was bound to conduct an enquiry or
investigation into the offences alleged against the Secretary of
W.P.(C) No.6867/2020
the Bank, either by himself or through his subordinate officers,
has not taken any such action and that the first respondent has
failed to discharge his statutory duties.
4. The petitioner seeks the following reliefs in this writ
petition.
"(i) Issue a writ of mandamus or any other
appropriate writ, order or direction, directing the 1 st
respondent to take up, consider and pass orders on
Ext.P-1 complaint, conducting enquiry or
investigation either by himself or through any of his
subordinate officers forthwith and to lay the report
thereof before the competent court or authority.
(ii) Allow cost of the petition to the
petitioner.
(iii) Grant such other and further reliefs as
this Hon'ble Court deems fit and proper in the
circumstances of the case."
5. The Inspector of Police, VACB, Central Range,
Ernakulam has filed a report in the writ petition. It is stated in
this report as follows:
"It is respectfully submitted that the petitioner
has filed two petitions before the Director, Vigilance
W.P.(C) No.6867/2020
& Anti-Corruption Bureau, Thiruvananthapuram on
04-01-2020 and 25-01-2020 respectively. On
04-02-2020 the Director has forwarded the above
petitions along with letter No.CPSP-1-
463/2020/DVAC to the Additional Chief Secretary,
Vigilance Department, Government Secretariat,
Thiruvananthapuram to enquire the matter through
the Vigilance wing of the Co-operative Department."
6. Subsequently, the Superintendent of Police
(Intelligence), VACB filed a report dated 13.07.2021 on behalf of
the first respondent. In this report, it is stated as follows:
"1. It is submitted that the petitioner in this
W.P.(C) Shri.Sunil Kumar Nair filed two petitions to
the Director, Vigilance and Anti-Corruption Bureau,
Thiruvananthapuram on 04/01/2020 and
25/01/2020. Since the allegation is related to the
irregularities in Pullad Service Co-operative Bank, it
has been decided to forward the petitions to the
Government for appropriate action through
concerned department.
2. "As per GO(P) 09/2017/Vig dated
29-03-2017 vide Para iv, the petition which have no
vigilance angle or those which do not disclose
offences under the PC Act 1988 which need to be
dealt with the department concerned, will be
W.P.(C) No.6867/2020
forwarded to Vigilance Department in Government
for appropriate action.
3. In the instant case as envisaged in the
GO cited the petitions of Shri.Sunil Kumar Nair have
been forwarded to Government on 04/01/2020 and
25/01/2020 as the irregularities falls under Kerala
Co-operative Act. Before commencing an enquiry on
the petition, the VACB has to ensure whether the
concerned department had conducted any internal
enquiry on the same allegation or not. If there is no
internal enquiry initiated, then the matter can be
referred to the Government for appropriate action as
per the GO discussed. Otherwise the Director can
close the matter in which no vigilance angle or
offence reveals under PC Act."
7. Though it is not specifically stated, what is discernible
from the above report is that the Director, VACB had formed an
opinion that Ext.P1 complaint did not reveal commission of any
offence under the Prevention of Corruption Act, 1988 but only
irregularities in the Bank and therefore, the complaint was
forwarded to the department concerned.
8. Heard learned counsel for the petitioner and the
learned Public Prosecutor.
W.P.(C) No.6867/2020
9. Learned counsel for the petitioner contended that, on
receiving Ext.P1 complaint containing allegations regarding
commission of cognizable offences by a public servant, the first
respondent was bound to conduct an enquiry or investigation into
the matter either by himself or through his subordinate officers.
Learned counsel would contend that, on getting information of
the commission of any cognizable offence, the police is bound to
register first information report (FIR) and conduct investigation.
Learned counsel has also contended that, mere existence of an
alternative remedy, shall not be a ground for not entertaining the
writ petition.
10. Learned Public Prosecutor has invited the attention of
this Court to the copy of the Government Order,
G.O(P)No.09/2017/Vig dated 29.03.2017, issued by the
Government with regard to the guidelines to be followed by the
VACB on receipt of a complaint. On a perusal of the guidelines
contained in the above Government Order, it appears that many
of those directions run counter to the principles of law laid down
W.P.(C) No.6867/2020
by the Constitution Bench of the Supreme court in Lalita Kumari
v. Government of U.P : AIR 2014 SC 187. However, this
Court finds it not necessary to delve deep in that regard in this
writ petition. Moreover, the above Government Order, being
issued prior to the amendment of the Prevention of Corruption
Act, 1988 does not address the procedure to be followed under
Section 17A of the Act.
11. But one thing is significant. This Government order
shows that the Directorate of VACB which had been notified as a
police station as per Notification No.10058/C1/2000/Vig dated
14.12.2000, is no longer a police station (with effect from
08.05.2015).
12. What is the remedy of a person on inaction on the part
of the police on the information given by him regarding the
commission of a cognizable offence? Is it his remedy to rush to
the High Court and to file a writ petition seeking action on the
complaint given by him to the police?
W.P.(C) No.6867/2020
13. When information with regard to the commission of any
cognizable offence is laid with the police but no action in that
behalf is taken, the complainant/aggreived person has right
under Section 190 read with Section 200 of the Code of Criminal
Procedure to lay the complaint before the Magistrate having
jurisdiction to take cognizance of the offence. Instead of adopting
or availing that procedure, he is not entitled to approach the High
Court by filing a writ petition and seeking a direction to conduct
investigation into the complaint filed by him before the police
(See All India Institute of Medical Sciences Employees
Union v. Union of India: (1996) 11 SCC 582, Aleque
Padamsee v. Union of India:(2007) 6 SCC 171, Sakiri Vasu
v. State of U.P : AIR 2008 SC 907, Sudhir Bhaskarrao
Tambe v. Hemant Yashwant Dhage : (2016) 6 SCC 277 and
M. Subramaniam v. S. Janaki : (2020) 16 SCC 728).
14. Lalita Kumari (supra) does not hold that a person
aggrieved by the inaction of the police can take a straight
recourse to judicial review, without availing the remedies under
W.P.(C) No.6867/2020
the Code of Criminal Procedure (See Fr. Sebastian
Vadakkumpadan v. Shine Varghese (2018 (3) KHC 590).
15. The entire law on the question has been discussed and
answered by this Court in Jude Joseph v. Director General of
Police (2021 (3) KHC 441).
16. The anguish expressed by the Supreme Court about the
High Courts being flooded with these types of writ petitions
cannot be lost sight of. The petitioner is not entitled to get any
relief in this writ petition.
Consequently, the writ petition is dismissed.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr
W.P.(C) No.6867/2020
APPENDIX OF WP(C) 6867/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 25-01-
2020 SUBMITTED BY THE PETITIONER TO THE
1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ENQUIRY REPORT
SUBMITTED BY THE OFFICE OF THE ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), THIRUVALLA, PATHANAMTHITTA
UNDER SECTION 66 OF THE KERALA CO-
OPERATIVE SOCIETIES ACT, 1969
EXHIBIT P3 (8 NOS) TRUE COPY OF THE RECEIPTS DATED 23-7-
2016 (8 NOS) OBTAINED UNDER THE RIGHT TO
INFORMATION ACT
EXHIBIT P4
TRUE COPY OF THE REPLY LETTER BEARING
NO. CRP(2)4346/19 DATED 2-12-2019 ISSUED
BY THE STATE PUBLIC INFORMATION OFFICER/
DEPUTY REGISTRAR (ADMINISTRATION),
OFFICE OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES (J), PATHANAMTHITTA
TO MR. VINU V PILLA, MELEVEETTIL.
NARANGANAM, KATTOOR, PATHANAMTHJITTA.
RESPONDENTS'EXHIBI NIL
TS:
TRUE COPY
PS TO JUDGE
