Kerala High Court
The Guruvayoor Co-Operative ... vs Rajeev on 27 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Friday, the 27th day of August 2021 / 5th Bhadra, 1943
WA NO. 1078 OF 2021
AGAINST JUDGMENT DATED 15.03.2021 IN WP(C) 27091/2019 OF THIS COURT .
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APPELLANT/ADDITIONAL 7TH RESPONDENT:
THE GURUVAYOOR CO-OPERATIVE URBAN BANK, F-1652,
P.O. GURUVAYUR - 680101, THRISSUR DISTRICT,
REPRESENTED BY ITS GENERAL MANAGER.
BY SRI.GEORGE POONTHOTTAM, SENIOR ADVOCATE AND
ADV. SMT.NISHA GEORGE
RESPONDENTS/RESPONDENTS:
1.RAJEEV, AGED 40 YEARS,S/O. NARAYANAN NAIR,
THONDAPALLI MADATHIPARAMBIL HOUSE, KAAVEEDU,
POOKODE, CHAVAKKAD TALUK,THRISSUR DISTRICT -680505.
2.STATE OF KERALA, REPRESENTED BY SECRETARY,
MINISTRY OF HOME AFFAIRS, VIGILANCE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695001.
3.INSPECTOR GENERAL OF VIGILANCE, THRISSUR RANGE,
THRISSUR DISTRICT - 680001.
4.THE SUPERINTENDENT OF POLICE VIGILANCE, THRISSUR RANGE,
THRISSUR DISTRICT - 680001.
5.THE SUPERINTENDENT OF POLICE, DEPARTMENT OF CRIME BRANCH CID,
THRISSUR - 680001.
6.DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE,
THRISSUR RANGE, THRISSUR DISTRICT - 680001.
P.T.O.
7.THE JOINT REGISTRAR ,CO-OPERATIVE DEPARTMENT,
OFFICE OF THE CO-OPERATIVE DEPARTMENT,
AYYANTHOLE, THRISSUR - 680003.
BY SRI.A.RAJESH, SPECIAL GOVERNMENT PLEADER (VIGILANCE) FOR R3 TO R6
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the judgment of the Learned Single Judge dated
15.03.2021 in W,P,(C) No.27091 of 2019, and all consequential actions
taken following the direction contained in the judgment, pending disposal
of the Writ Appeal.
This Writ Appeal coming on for admission on 27.08.2021 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
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W.A. No. 1078 of 2021
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Dated this the 27th day of August, 2021
ORDER
S. Manikumar, CJ.
A preliminary report, submitted under Section 156(3) of Code of
Criminal Procedure, by the Deputy Superintendent of Police (Vigilance
and Anti-corruption Bureau) dated 18.5.2019, to the Hon'ble Enquiry
Commissioner and Special Judge (Vigilance), Thrissur, was under
challenge in W.P(C). No.27091 of 2019.
2. After hearing learned counsel for the parties and upon perusal
of the material on record, writ court, by the judgment in
W.P(C).No.27091 of 2019 dated 15.03.2021, found that the said
preliminary report is not in accordance with the directions issued by the
Hon'ble Supreme Court in Lalitha Kumari v. Government of UP [AIR
2014 (SC) 187]. While doing so, writ court set aside the preliminary
report and directed another Deputy Superintendent of Police, to conduct
preliminary enquiry, strictly in terms of Lalitha Kumari's case (cited
supra) and that the said exercise is directed to be completed, within two
months from the date of taking charge, by the Officer. Being aggrieved,
instant writ appeal is filed.
3. On the grounds, inter alia, that a writ court, under Article 226 of
the Constitution of India, has no jurisdiction to entertain a writ petition
W.A.1078/2021
under Article 226 of the Constitution of India and consequentially to
interfere with a preliminary enquiry report, submitted to the court of
criminal jurisdiction, instant writ appeal is filed. According to the
appellant, power to examine the correctness and legality of a
preliminary report vests only with the competent Criminal
Court/Magistrate, and in the case on hand, by the Enquiry
Commissioner and Special Judge (Vigilance), Thrissur, and not the writ
court. Apart from that, there are other grounds raised.
4. On the main grounds stated supra, Mr. George Poonthottam,
learned Senior Counsel appearing for the appellants, sought for
interference of the impugned judgment.
5. Responding to the above, Mr. A. Rajesh, learned Special
Government Pleader (Vigilance), Government of Kerala, submitted that
pursuant to the judgment in W.P(C).No.27091 of 2019 dated
15.03.2021, further investigation has been done by another Deputy
Superintendent of Police, as directed, and an FIR has also been
registered.
6. He further submitted that Board of Directors, arrayed as
accused, have filed anticipatory bail applications and that they have
been dismissed. Being aggrieved, they moved the Hon'ble Supreme
Court by filing SLPs, which also ended in dismissal.
7. He further submitted that the accused therein have filed
W.A.1078/2021
petitions to quash the registration of FIR and after hearing the learned
counsel for the parties therein, orders have been reserved.
8. It is further contended by the learned Special Government
Pleader that the appellant herein is not an accused in the FIR
registered. In the light of the subsequent developments, Mr.A. Rajesh,
learned Special Government Pleader (Vigilance) submitted that
directions issued in W.P(C). No.27091 of 2019 have been complied
with and therefore, prayed that no interim order be granted.
9. We have heard learned counsel for the parties and perused
the material available on record.
10. Though a larger question is raised as to whether a writ court,
under Article 226 of the Constitution of India, can interfere at the stage
of submission of a preliminary enquiry report under Section 156(3) of
Code of Criminal Procedure, 1973, to the court of competent
jurisdiction, in the light of the subsequent developments, we are not
inclined to stay the impugned judgment.
11. That apart, normally, FIR would be registered only as against
the individual and not against an entity, a co-operative Bank. Further,
it is the specific case of Mr.A. Rajesh, learned Special Government
Pleader (Vigilance), that the said bank or the General Manager of the
bank is not an accused, in the FIR registered. But the Board of
Directors only have been arrayed as accused.
W.A.1078/2021
12. On the facts and circumstances of the case, one of the
questions requires to be answered is whether the Bank can be an
aggrieved person, as against the judgment in W.P(C).No.27091 of
2019 dated 15.03.2021. Besides, the accused in the FIR have
approached the criminal court under Section 482 of the Code of
Criminal Procedure, to quash the FIR registered.
13. It is the submission of Mr. George Poonthottam, learned
Senior Counsel for the appellants, that directions issued in the
judgment in W.P(C).No.27091 of 2019 dated 15.03.2021 cannot be
challenged before the criminal court, under Section 482 of the Code of
Criminal Procedure. 1973. We duly took note of the above, but, not
inclined to grant any interim order and to put the clock back.
14. Issue notice to respondent No.1, by speed post, returnable
in two weeks. Mr. A. Rajesh, learned Special Government Pleader
(Vigilance), takes notice for respondents 3 to 6.
Post after two weeks.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
27-08-2021 /True Copy/ Assistant Registrar
