Kerala High Court
Yasir V. P vs The Director Of Vigilance And ... on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
WP(C) NO. 27177 OF 2019
PETITIONERS:
1 YASIR V. P.
AGED 44 YEARS
S/O. LATE MUHAMMED ALI MASTER, VALAYAMPUZHA
HOUSE, NATTUKAL P. O., THACHANATTU KARA VILLAGE,
MANNARKAD TALUK, PALAKKAD - 678583.
2 RASHEED V. P.
AGED 44 YEARS
S/O. LATE ABDU, VALAYAMPUZHA HOUSE, NATTUKAL P.
O., THACHANATTU KARA VILLAGE, MANNARKAD TALUK,
PALAKKAD - 678583.
3 SAEEDA V. P.
AGED 34 YEARS
TEACHER, GOVT. H.S., W/O. FAIZAL YAHIYA,
MALAYAMKATTU HOUSE, THELAKKAD, PERINTHALMANNA
TALUK, MALAPPURAM DISTRICT, PIN - 679325.
4 SAJIDHA V. P.
AGED 47 YEARS
W/O. HAMZA, VELLIYAPPANTHODI HOUSE, KARUMANNAM
KURISSI P. O., CHERUPLASSERY VILLAGE, OTTAPPALAM
TALUK, PALAKKAD - 679504.
BY ADVS.
T.V.GEORGE
SRI.JIMMY GEORGE (THADATHIL)
RESPONDENTS:
1 THE DIRECTOR OF VIGILANCE AND ANTICORRUPTION
BUREAU
OFFICE OF THE DIRECTOR OF VIGILANCE,
THIRUVANANTHAPURAM, PIN - 695 001.
W.P.(C) No.27177/2019
2
2 THE SUPERINTENDENT OF POLICE
VIGILANCE AND ANTICORRUPTION BUREAU, SPECIAL
CELL, ERNAKULAM - 682 017.
3 T. U. SAJEEVAN
DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND
ANTICORRUPTION BUREAU, SPECIAL CELL, ERNAKULAM -
682 011.
BY SRI.A.RAJESH, SPL.PP VACB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.07.2021, THE COURT ON 08.07.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.27177/2019
3
"CR"
R.NARAYANA PISHARADI, J
**********************
W.P.(C) No.27177 of 2019
-------------------------------------
Dated this the 8th day of July, 2021
JUDGMENT
The Vigilance and Anti-Corruption Bureau (VACB) conducted
an enquiry against Mr.Hamsa, Deputy Superintendent of Police,
District Crime Branch, Thrissur Rural on the allegation that he
had amassed assets, disproportionate to his income. On the basis
of the facts revealed during the enquiry, on 09.07.2019, a case
was registered against him as VC.01/19/SCE by the VACB,
Special Cell, Ernakulam under Sections 13(1)(b) (as amended by
Act 16 of 2018) and 13(1)(e) read with 13(2) of the Prevention
of Corruption Act, 1988.
W.P.(C) No.27177/2019
2. The allegation against Mr.Hamsa, in Ext.P1 F.I.R
registered in the above case is that, while working as a
Government servant, during the period from 01.01.2009 to
30.09.2018, he has amassed wealth to the tune of
Rs.28,78,399/-, which is disproportionate to his known sources
of income.
3. The fourth petitioner is the wife of Mr.Hamsa, the
accused in the above case. The first petitioner is the brother and
the third petitioner is the sister of the fourth petitioner. The
second petitioner is a close relative of them.
4. The first respondent in this writ petition is the Director
of VACB and the second respondent is the Superintendent of
Police, VACB, Special Cell, Ernakulam. The third respondent is
the Deputy Superintendent of Police who is conducting the
investigation in the above case. He is impleaded in this writ
petition in his personal capacity.
5. The following are the reliefs sought in this writ
petition.
W.P.(C) No.27177/2019
"i) Call for the entire records relating to the above
case;
ii) Issue a writ of mandamus or any other
appropriate writ, direction or order, directing the 2 nd
respondent to peruse and verify Ext.P2 to P9
documents and afford an opportunity of hearing the
petitioners herein, at the earliest and thereby release
the property and building No.PM/36/87/2(a), to the
4th petitioner from the proceedings in V.C 1/19/SCE
pending before the Vigilance Court and file a report
before the Court.;
iii) Issue a writ of mandamus or any other
appropriate writ, direction or order, directing the 2 nd
respondent or anybody under him, other than 3 rd
respondent to personally conduct the investigation in
VC 1/19/SCE with regard to the claim of petitioners
relating to building No.PM/36/87/2(a), in which the
search was conducted in V.C.No:1/19/SCE as to
whether the same belonged to the 4th petitioner and
she procured it by expending money obtained from
her siblings and family members and thereby release
the said property from the Vigilance Case
No:1/19/SCE and file a report before the Court;
iv) Grant such other and further reliefs which this
Hon'ble court feels just and proper to grant in the
circumstances of the case, including the entire costs
of the proceedings."
W.P.(C) No.27177/2019
6. The crux of the averments in the writ petition, which
forms the basis for claiming the above reliefs, can be stated as
follows: A land having an extent of nine cents was purchased in
the name of the fourth petitioner in the year 2012. This property
was purchased by spending Rs.6,45,000/-, including the
registration charges. Thereafter, a house was constructed in this
property by spending Rs.23,65,000/-. The total amount of
Rs.30,10,000/-, which was spent for purchasing the land and for
constructing the house, was legally obtained by the petitioners by
various means. Sri.Hamsa, the accused in the case, who is the
husband of the fourth petitioner, had not spent any amount for
acquiring this property. However, the third respondent has
refused to look into and consider the various documents relating
to the purchase of land and the construction of the house in the
name of the fourth petitioner. The third respondent is bent upon
to file a charge-sheet against Sri.Hamsa by showing the above
property as one acquired by him.
7. The third respondent has filed a statement of facts in
reply to the averments in the writ petition. The petitioners have
W.P.(C) No.27177/2019
filed a rejoinder statement.
8. Heard learned counsel for the petitioners and the
learned Public Prosecutor.
9. The petitioners have got no plea that any property
owned by them has been proceeded against in connection with
the investigation conducted in the case registered against
Mr.Hamsa. No legal action has been taken against any property
owned by the petitioners in connection with the investigation of
that case. No such property is under attachment. There is also
no obstruction caused to the petitioners for the enjoyment of any
property. The petitioners are also not proceeded against in
person in connection with the investigation of the case registered
against Mr.Hamsa. In these circumstances, even if the entire
allegations in the writ petition are accepted as correct, the
petitioners have got no cause of action for seeking the reliefs
claimed in this writ petition.
10. The investigation of the case is in progress. After
completing the investigation, the investigating officer has to file
final report in the competent court. Then, if it is a charge-sheet
W.P.(C) No.27177/2019
filed against Sri.Hamsa, alleging that the aforesaid property was
acquired by him by using illegal money, he would get adequate
opportunity at the appropriate stage to plead and prove that such
allegation is not true. It is evident that the petitioners have filed
this writ petition with a view to cause impediment in the
investigation of the case against Sri.Hamsa.
11. Section 156(1) of the Code of Criminal Procedure,
1973 (for short 'the Code') empowers a police officer to conduct
investigation into any cognizable offence. Section 2(h) of the
Code defines "investigation" and it includes all the proceedings
under the Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf. It ends with the
formation of the opinion as to, whether on the materials
collected, there is a case to place the accused for trial before the
competent court and if so, by taking necessary steps for the
same by filing of a charge-sheet.
12. Investigation of the case registered against Sri.Hamsa
is in progress. This is not the stage where the efficacy or
W.P.(C) No.27177/2019
sufficiency of the materials collected by the investigating officer
can be evaluated. An accused can avail of such remedies as may
be permissible in law before the jurisdictional courts at different
stages during the investigation as well as at the time of the trial
of the case. If there is no legal evidence against him, at the
appropriate stage, he could opt for the remedy of seeking
discharge or quashing of the charge-sheet. Sri.Hamsa, against
whom the case is registered, has already filed application under
Section 482 of the Code challenging the manner in which
investigation is being conducted by the third respondent.
13. The cause of an affected accused cannot be agitated by
next friends or close relatives unless the accused is incapacitated
to take recourse to legal remedy (See Romila Thapar v. Union
of India : AIR 2018 SC 4683).
14. In Janata Dal v. H.S.Chowdhary : (1991) 3 SCC
756, the Apex Court has observed as follows:
"Even if there are million questions of law to be
deeply gone into and examined in a criminal case of
this nature registered against specified accused
persons, it is for them and them alone to raise all
W.P.(C) No.27177/2019
such questions and challenge the proceedings
initiated against them at the appropriate time
before the proper forum and not for third
parties ........ ".
15. It is for the investigating agency to submit final report
in the court concerned after full and complete investigation. The
investigating agency may submit a report finding the allegations
substantiated. It is also open to the investigating agency to
submit a report finding no material to support the allegations
made in the first information report. When the investigation is in
progress, it is not for this Court to comment on the tentative
view of the investigating agency.
16. The investigation of an offence is the domain of the
police. The power to investigate into cognizable offences by a
police officer is ordinarily not impinged by any fetters. The
manner and the method of conducting the investigation are left
entirely to the investigating officer. As far as the steps taken by
the investigating officer are legal and proper, the Court has no
power to interfere with the same. The formation of the opinion,
whether there is sufficient evidence or reasonable ground of
W.P.(C) No.27177/2019
suspicion to justify the forwarding of the case to the competent
court or not, as contemplated by Sections 169 and 170 of the
Code, is to be that of the investigating officer. The investigation
under the Code, takes in several aspects and stages, ending
ultimately with the formation of an opinion by the police as to
whether or not, on the materials collected, a case is made out to
send the accused for trial before the competent court. The
submission of the final report is dependent on the nature of the
opinion so formed. The formation of the said opinion, which is the
final step in the investigation, is to be taken only by the
investigating officer and by no other authority.
17. In State of Bihar v. J.A.C Saldanha : AIR 1980 SC
326, the Apex Court has held as follows:
"There is a clear-cut and well demarcated sphere of
activity in the field of crime detection and crime
punishment. Investigation of an offence is the field
exclusively reserved for the executive through the
police department, the superintendence over which
vests in the State Government. The executive which
is charged with a duty to keep vigilance over law
and order situation is obliged to prevent crime and if
W.P.(C) No.27177/2019
an offence is alleged to have been committed it is its
bounden duty to investigate into the offence and
bring the offender to book. Once it investigates and
finds an offence having been committed it is its duty
to collect evidence for the purpose of proving the
offence. Once that is completed and the
investigating officer submits report to the Court
requesting the Court to take cognizance of the
offence under Section 190 of the Code its duty
comes to an end. On a cognizance of the offence
being taken by the Court, the police function of
investigation comes to an end subject to the
provision contained in Section 173(8), there
commences the adjudicatory function of the
judiciary to determine whether an offence has been
committed and if so, whether by the person or
persons charged with the crime by the police in its
report to the Court, and to award adequate
punishment according to law for the offence proved
to the satisfaction of the Court. There is thus a well
defined and well demarcated function in the field of
crime detection and its subsequent adjudication
between the police and the Magistrate".
18. This Court cannot issue directions to the investigating
officer to investigate the case from a particular angle. It is the
statutory obligation and duty of the police to investigate into the
W.P.(C) No.27177/2019
crime and the Courts normally ought not to interfere and guide
the investigating agency as to in what manner the investigation
has to proceed. The High Court, in exercise of its power under
Article 226 of the Constitution of India, cannot direct the
investigating agency to investigate the case in accordance with
the views of the Court (See D.Venkatasubramaniam v.
M.K.Mohan Krishnamachari : (2009) 10 SCC 488).
19. The investigating officer is not obliged to anticipate all
possible defences and investigate in that angle (See V.K.Mishra
v. State of Uttarakhand : AIR 2015 SC 3043). If the
investigating officer, during the investigation, omits to take into
consideration any document in favour of the accused, the
accused can produce or summon those documents in the trial
court and prove them to establish his innocence.
20. The reliefs sought in the writ petition impliedly include
a change of the investigating officer.
21. Ordinarily, an accused has no right to seek change of
investigating officer (See Visakhmon v. Director General of
Police : 2020 SCC OnLine Ker 2150). If that be the legal
W.P.(C) No.27177/2019
position, the petitioners, who are close relatives of the accused
and who are third parties, cannot be heard to say that the case
shall be investigated by an officer of their choice other than the
third respondent.
22. The petitioners have alleged that, Exts.P2 to P9
documents and the additional documents produced by them in
the writ petition, would prove the innocence of the accused in the
case but the third respondent refused to consider those
documents.
23. In State of Bihar v. P.P.Sharma : AIR 1991 SC
1260, the Apex Court has held as follows:
"As regards the investigating officer, he has wide
powers under the Criminal Procedure Code. He has
to perform his duties with the sole object of
investigating the allegations and in the course of
the investigation he has to take into consideration
the relevant material whether against or in favour
of the accused. Simply because the investigating
officer, while acting bona fide, rules out certain
documents as irrelevant, it is no ground to assume
that he acted mala fide. The police report submitted
by the investigating officer has to pass through the
W.P.(C) No.27177/2019
judicial scrutiny of a Magistrate, at the stage of
taking cognizance. Although the accused person
has no right to be heard at that stage but in case
the accused person has any grouse against the
investigating officer or with the method of
investigation he can bring to the notice of the
Magistrate his grievances which can be looked into
by the Magistrate. When the police report under
S.173, Cr.P.C. has to go through the judicial
scrutiny it is not open to the High Court to find fault
with the same on the ground that certain
documents were not taken into consideration by the
investigating officer. We do not, therefore, agree
with the High Court that the FIR and the
investigation is vitiated because of the mala fide on
the part of the informant and the investigating
officer".
(emphasis supplied)
24. Therefore, even if it is accepted that the third
respondent had refused to look into the documents produced by
the petitioners, malice on his part cannot be assumed or inferred
for that reason.
25. At this juncture, it is to be noted that, Mr.Hamsa, the
accused in the case, has filed Crl.M.C.No.5275/2019 challenging
W.P.(C) No.27177/2019
the investigation being conducted by the third respondent. In
Crl.M.C.No.5275/2019, he had filed an application as
Crl.M.A.No.01/2020 for changing the investigating officer. After
perusing the case diary, this Court had dismissed the aforesaid
application on the finding that there is nothing apparent to
indicate that the third respondent had any personal enmity
towards the accused in the case.
26. In the aforesaid circumstances, the reliefs prayed for
in this writ petition cannot be granted at the instance of the
petitioners, who are third parties to the case registered by the
VACB. The writ petition is liable to be dismissed.
Consequently, the writ petition is dismissed.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr
W.P.(C) No.27177/2019
APPENDIX OF WP(C) 27177/2019
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF FIR AS VC 1/19/SCE
U/S.13(2) R/W 13 (1)(E) OF PC ACT 1988
AND 13(2) R/W 13(1) (b) OF PC AMENDMENT
ACT, 2018 DATED 9.7.2019.
EXHIBIT P2 TRUE COPY OF SALE DEED NO.8291/12 OF
SRO, PALAKKAD DATED 18.10.2012.
EXHIBIT P3 TRUE COPY OF AGREEMENT DATED 18.6.2013
BETWEEN 4TH PETITIONER AND THE 2ND
PETITIONER FOR ADVANCE AMOUNT OF RS.
10,00,000/-
EXHIBIT P4 TRUE COPY OF AGREEMENT DATED 5.7.2013
BETWEEN 1ST PETITIONER AND THE
CONTRACTOR KRISHNANKUTTY FOR
CONSTRUCTION OF BUILDING STRUCTURE.
EXHIBIT P5 TRUE COPY OF AGREEMENT DATED 6.11.2013
BETWEEN 1ST PETITIONER AND CONTRACTOR
KRISHNANKUTTY TO EXECUTE THE PLASTERING
WORKS FOR AN AMOUNT OF RS.3,10,000/-
EXHIBIT P6 TRUE COPY OF AGREEMENT DATED 30.5.2015
BETWEEN 1ST PETITIONER AND ONE RAFI, WHO
IS THE SUPPLIER OF GRANITE AND TILES FOR
RS.2,25,000/-
EXHIBIT P7 TRUE COPY OF AGREEMENT DATED 20.4.2016
BETWEEN 1ST PETITIONER AND CONTRACTOR
KRISHNANKUTTY FOR RS.2,75,000/- FOR
CONSTRUCTION OF COMPOUND WALL.
EXHIBIT P8 TRUE COPY OF BANK ACCOUNT STATEMENT OF
3RD PETITIONER'S HUSBAND - FAIZAL.
EXHIBIT P9 TRUE COPY OF BANK ACCOUNT STATEMENT
SHOWING THE WITHDRAWAL OF 1ST PETITIONER
FOR THE PERIOD FROM 8.12.2012 TO
5.7.2016 FROM THE SOUTH INDIAN BANK.
W.P.(C) No.27177/2019
EXHIBIT P10 TRUE COPY OF PROPERTY STATEMENT FOR THE
YEAR 2012-2013 FILED BY 4TH PETITIONER'S
HUSBAND - V.HAMZA.
EXHIBIT P11 TRUE COPY OF PROPERTY STATEMENT
DT.27/1/2015 FOR THE YEAR 2014 FILED BY
THE 4TH PETITIONER'S HUSBAND - V.HAMZA.
EXHIBIT P12 TRUE COPY OF PROPERTY STATEMENT DTD
15/1/2017 FOR THE YEAR 2016 FILED BY 4TH
PETITIONER'S HUSBAND - V.HAMZA
RESPONDENTS' EXHIBITS : NIL
True Copy
P S to Judge
