V. Ramachandra Kurup vs State Of Kerala
2021 Latest Caselaw 7888 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

   MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

                     WP(C).No.33722 OF 2019(M)

PETITIONER:

               V. RAMACHANDRA KURUP
               AGED 65 YEARS
               S/O.LATE VELAYUDHAN PILLAI, CHAKITTA VADAKATHIL,
               KARUVATTA P.O., ALAPPUZHA DISTRICT.

               BY ADVS.
               SRI.K.S.HARIHARAPUTHRAN
               SMT.BHANU THILAK

RESPONDENTS:

    1          STATE OF KERALA
               REPRESENTED BY HOME SECRETARY, GOVERNMENT
               SECRETARIAT, THIRUVANANTHAPURAM-695 001.

    2          DIRECTOR OF VIGILANCE,
               VIGILANCE AND ANTI-CORRUPTION BUREAU,
               THIRUVANANTHAPURAM-695 001.

    3          KARUVATTA SERVICE CO-OPERATIVE BANK LTD.NO.2145,
               REPRESENTED BY ITS SECRETARY, KARUVATTA P.O.,
               ALAPPUZHA-690 517.

    4          THE MANAGING COMMITTEE,
               KARUVATTA SERVICE CO-OPERATIVE BANK LTD.NO.2145,
               KARUVATTA P.O., ALAPPUZHA, REPRESENTED BY ITS
               PRESIDENT, PIN-690 517.

    5          DEEPA,
               SECRETARY, KARUVATTA SERVICE CO-OPERATIVE BANK
               LTD.NO.2145, REPRESENTED BY ITS SECRETARY,
               KARUVATTA P.O., ALAPPUZHA-690 517.

            ADDL.R6 IS IMPLEADED
    ADDL.R6 REGISTRAR OF CO-OPERATIVE SOCIETIES,
            OFFICE OF CO-OPERATIVE SOCITIES,JAWAHAR
            SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.,
            TRIVANDRUM - 695 014

               IS ADDED AS ADDITIONAL R6 AS PER ORDER DATED 26-
               02-2020 IN I.A. 01/2020 IN W.P.(C) 33722/2019
 WP(C).No.33722 OF 2019(M)

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             R1-2 BY SRI A RAJESH -SPL PP VACB
             ADDL.R6 SRI MOHAMMED HASHIM-SPL GP CO-OPERATION
             R3-4 BY ADV. SRI.T.R.HARIKUMAR
             R3-4 BY ADV. SRI.ARJUN RAGHAVAN
             R5 BY ADV. SRI.S.SANAL KUMAR
             R5 BY ADV. SMT.BHAVANA VELAYUDHAN
             R5 BY ADV. SMT.T.J.SEEMA

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-
03-2021, THE COURT ON 08-03-2021 DELIVERED THE FOLLOWING:
 WP(C).No.33722 OF 2019(M)

                                        3


                       R. NARAYANA PISHARADI, J
             ----------------------------------------------------
                       W.P.(C).No.33722 of 2019
            -----------------------------------------------------
                      Dated this the 08th day of March, 2021

                                  JUDGMENT

The writ petitioner alleges that he had made Ext.P5 complaint to

the Director, Vigilance and Anti-Corruption Bureau (VACB),

Thiruvananthapuram regarding the corrupt practices committed in the

appointment to the posts of Peon and Secretary in the Karuvatta

Service Co-operative Bank Limited but no action has been taken on

the complaint.

2. The writ petition is filed for directing the respondents to

initiate appropriate legal action on Ext.P5 complaint in accordance with

law.

3. Heard the learned counsel for the petitioner and

respondents 3 to 6 and also the learned Public Prosecutor.

4. The Dy.S.P, VACB, Central Range, Ernakulam has filed a

report dated 30.12.2019 in the writ petition, on behalf of the Director,

VACB. It is stated in this report that no complaint dated 25.11.2017 as

Ext.P5 has been received by the VACB. However, it is stated that the

petitioner had made three petitions dated 07.11.2017, 13.11.2017

and 10.05.2018 before the VACB which contain the same allegations WP(C).No.33722 OF 2019(M)

as contained in Ext.P5 and these petitions were forwarded to the

Additional Chief Secretary, Home and Vigilance Department,

Thiruvananthapuram. It is stated that the above petitions were

forwarded so for conducting an enquiry in the matter through the

internal vigilance of the department concerned. It is also stated in this

report that, if the above enquiry demands further probe by the VACB,

it would be conducted accordingly.

5. When a complaint is received by the Director, VACB, it

eludes comprehension why it should be forwarded to the department

concerned for conducting internal enquiry by that department.

6. The action which shall be taken, on receiving a complaint

regarding commission of cognizable offences, has been explained by

the Constitution Bench of the Supreme Court in the decision in Lalita

Kumari v. Government of U.P: AIR 2014 SC 187. The Constitution

Bench has held as follows:

"(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

WP(C).No.33722 OF 2019(M)

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without WP(C).No.33722 OF 2019(M)

satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above".

7. When a complaint alleging commission of a cognizable

offence is received by a police officer, forwarding the complaint for

conducting an internal enquiry by the department concerned is not

contemplated under the law.

8. Learned Public Prosecutor submitted that, in view of the

recently introduced provision as Section 17A of the Prevention of

Corruption Act, 1988 (for short 'the PC Act'), previous approval of the WP(C).No.33722 OF 2019(M)

competent authority would be necessary to conduct any preliminary

enquiry or investigation in the matter by the VACB. There is no basis

for this submission made by the learned Public Prosecutor. The

amendment to the PC Act, by which Section 17A was introduced, came

into effect only on 26.07.2018. All the three petitions made by the

petitioner before the VACB, which are mentioned in the report of the

Dy.S.P, VACB, Central Range, had been made prior to that date.

Therefore, no previous approval by the competent authority as

contemplated under Section 17A of the PC Act is necessary for

conducting preliminary enquiry in those petitions. In Ramesh v. CBI

(2020 (4) KHC 220: 2020 (4) KLT 351), this Court has held that

the amendment made to PC Act as per Act 16 of 2018 is only

prospective in operation.

9. Consequently, the writ petition is disposed of as follows:

The Director, VACB (the second respondent in the writ petition) is

directed to take immediate action on the three petitions made by the

petitioner, which are mentioned in the report dated 30.12.2019 filed

by the Dy.S.P, VACB, Central Range, Ernakulam, in the light of the

directions issued by the Supreme Court in Lalita Kumari (supra).

                Sd/-R. NARAYANA PISHARADI ,             JUDGE



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 WP(C).No.33722 OF 2019(M)






                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE LETTER NUMBER

13885/C1/2013/CO-OP. DATED 16.04.2015 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 24.06.2009 OF THIS HON'BLE COURT ON WP(C)NO.8963/2007.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.CRP(1) 4536/2016 DATED 05.04.3017 OF THE JOINT REGISTRAR GENERAL OF CO-OPERATIVE SOCIETIES, ALAPPUZHA.

EXHIBIT P4           TRUE COPY OF THE MARK SHEET.

EXHIBIT P5           TRUE COPY OF THE COMPLAINT DATED
                     25.11.2017.


RESPONDENTS EXHIBITS: NIL



                                                        TRUE COPY



                                                    P.A TO JUDGE


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