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2008 (3) TMI 734
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....ting Officer and entrusting the same to a Special Investigation Team headed by Vinson M. Paul, I.P.S. Inspector General of Police, presently working as Managing Director of Kerala Police Housing Construction Corporation, Thiruvananthapuram. The High Court also directed the same authority to investigate/inquire into various other allegations leveled in an anonymous petition filed against Divine Retreat Centre. The impugned judgment and order arises out of the proceedings suo motu initiated by the Court on the basis of anonymous petition addressed to Justice Padmanabhan Nair. 5. The tell-tale facts disclosed from the record may have to be noted in some detail. One Mini Varghese, a female remand prisoner, sent a petition to the District Judge, Kozhikode, inter alia, alleging that while she was taking shelter in Divine Retreat Centre she had been subjected to molestation and exploitation and became pregnant from Father Jose Thadathil (later identified as Father Mathew Thadathil). When she came out of Centre to attend her sisters marriage she was implicated in a false theft case and lodged in the jail. 6. The District Judge having received the petition on 28.7.2005 forwarded the same ....
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....ained to me that she is afraid to come out of the jail on bail as she is under threat. I do not know what is the present stage of the investigation. 9. The matter was accordingly placed before Padmanabhan Nair, J. by the Registry who in turn directed the matter to be placed before the Registrar General for necessary action by his endorsement dated 21.12.2005. 10. The matter was accordingly placed before Padmanabhan Nair, J. on 24.1.2006 by the Registry in the following manner: Shri Thomas P. Joseph, District Judge, Kozhikode has sent a communication dated 28.10.2005, enclosing a complaint addressed to the Hon'ble Mr. Justice K. Padmanabhan Nair. The communication of the learned District Judge and the complaint are selfexplanatory. If any steps are to be taken with regard to the matter may kindly be indicated. The learned judge on the same day made the following endorsement: Please verify and report whether the FPR Mini Varghese had sent any petition to this Court and if so what action was taken on that petition? Thereafter the Registry re-submitted the whole file before Padmanabhan Nair, J as under: It appears that Smt. Mini Varghese, FRP 287, District Jail, Kozhikode had....
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....It is stated that two police men went to the jail but they did not make enquiry regarding her allegation of rape alleged against the priest. Even though there is an order to close the file Crl.PP 57929/05. I am of the view that subsequent petition ought to have treated a separate petition praying for an order for proper investigation and separate action taken. I am of the view that petition can also be clubbed with the anonymous petition. A perusal of the anonymous petition dated 26- 10-05 shows it contains serious allegation. So it is only just and proper the matter is taken on the judicial side especially in view of the allegation of involvement of senior IAS and IPS officers. So there will be direction to the Registry to treat the anonymous petition alongwith petition of FPR 287 received in the court on 21-11-05 as petitions praying for an order for proper investigation and Register as a suo motu Crl. Misc. Case. Serve a copy of the above stated petition to the Director General of Prosecution. The copies of the documents except the CDs may also be given to him. Keep the CD under safe custody for the time being till a decision is taken in the matter. Register the Crl. Misc. Cas....
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....y the learned Judge are inquisitorial in nature and sweeping in their width and amplitude directing the Special Investigation Team (SIT) to find out as to whether the appellant committed any crime and if so to investigate into such crime. Such a course is impermissible in law. 15. Shri P.P. Rao, learned senior counsel appearing on behalf of the respondents supported the impugned order. It was submitted that there are no limits imposed in the matter of exercise of jurisdiction under Section 482 of the Code so long as the directions do not run counter to statutory provisions. It was alternatively contended that if for any reason the impugned order is not traceable to Section 482 of the Code the same could be considered as the one passed by the High Court under Article 226 of the Constitution of India. It was also submitted that the appellant has no locus to challenge the impugned order inasmuch as it is not an accused in any criminal case. It was also contended that even the accused in a criminal case has no right of hearing until filing of a report under Section 173 of the Code. NATURE OF JURISDICTION UNDER SECTION 482 OF CODE QUA THE REGISTRATION OF A CRIME AND INVESTIGATION: 16....
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....t is only in cases where the police decide not to investigate the case, the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. "The power of the police to investigate has been made independent of any control by the Magistrate." It is further held: "though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers." This position has been made further clear by this Court in its authoritative pronouncement in State of Bihar & anr. Vs. J.A.C. Saldanha & ors. thus: 25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punis....
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....he Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation." 19. In State of West Bengal Vs. S.N. Basak , this Court reiterated the principle that the police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and that power of the police to investigate cannot be interfered with by the exercise of power under the inherent power of the High Court. In Hazari Lal Gupta Vs. Rameshwar Prasad & Anr. Etc. , this Court while explaining the nature and purport of the inherent jurisdiction of the High Court observed that in exercising jurisdiction under Section 561-A of the Criminal....
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....ud, J. (as His Lordship then was), in Kurukshetra University Vs. State of Haryana while considering the nature of jurisdiction conferred upon the High Court under Section 482 of the Code observed: "It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases." 24. Shri P.P. Rao, learned Senior Counsel contended that in the instant case the High Court properly exercised its inherent power in entertaining the grievance of victim alleging bias on the part of the Investigating Officer which is also one of the allegations made in the anonymous complaint. The submission was that the power available to the High Court under Section 482 of the Code is so wide and cannot be subjected to any limitation, except in cases where there is a specific provision in the Code to provide adequate remedies to the aggrieved person. The inherent power is co-extensive with the text of the Code and it can be exercised in respect of any of the matters covered by the Code, be it investigation, inquiry or trial. The learned counse....
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....n the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists." 28. In our view, none of the decisions upon which reliance has been placed lend any support to the submissions made by the learned counsel on behalf of the respondents. On the other hand, in Popular Muthiah (supra) this Court held that the High Court was not correct in issuing direction to take advice of the State Public Prosecutor as to under what section the appellant therein has to be charged and tried and directing CB,CID to take up the matter and reinvestigate and prosecute the appellant therein. Such a power does not come within the purview of Section 482 of the Code of Criminal Procedure. Investigation of an offence is a statutory power of the police. The State in its discretion may get the investigation done by any agency unless there exists an extraordinary situation. This Court further held that the High Court cannot issue directions to investigate the case from a particular angle or by a particular agency. 29. The question that arises for our consideration is whether the contents of the petiti....
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....ysis of the relevant provisions of the Code held that after completion of the investigation if it appears to the Investigating Officer that there is no sufficient evidence, he may decide to release the suspected accused. If, it appears to him that there is sufficient evidence or reasonable ground to place the accused on trial, he has to take necessary steps under Section 170 of the Code. In either case, on completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form who is required to consider the report judicially for taking appropriate action thereof. We do not propose to deal with the options available in law to the Magistrate and even to a victim or informant as the case may be. 33. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may ha....
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....he police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees Union (Regd.) V. Union of India . It was specifically observed that a writ petition in such cases is not to be entertained." WHETHER THE HIGH COURT WAS JUSTIFIED IN ENTERTAINING ANONYMOUS PETITION? 37. The second part of the anonymous letter relates to allegations that: (a) in the past two years number of unidentified dead bodies were found on the National Highway and the railway track situated near to the Retreat Centre; (b) there is a practice of burying the dead bodies in the public burial ground without following any procedure; (c) recently the dead body of a lady aged about 30 years was entrusted with one Karyavelu for burying the dead body in t....
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....n a careful perusal of the order passed by the learned Judge, we find that the learned Judge initiated suo motu proceedings without even examining as to whether the contents of the anonymous letter and material sent along with it disclosed any prima facie case for ordering an investigation. The question is: can investigation be ordered by the High Court in exercise of its inherent jurisdiction under Section 482 of the Code based on such vague and indefinite allegations made in unsigned petition without even arriving at any prima facie conclusion that the contents thereof reveal commission of any cognizable offence? Whether such directions could have been issued by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India? 41. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. Vs. Sahngoo Ram Arya and Anr. , this Court took the view that a decision to direct an enquiry against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by an Investigating Agency, and the same cannot be done a....
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....nto the allegation that the Centre is getting foreign aid in violation of Foreign Exchange Law and take appropriate action in accordance with law if any violation is established. In view of the allegation that Senior I.A.S. and I.P.S. Officers, are associated with the functioning of the Retreat Centre, and because of the allegations leveled against the Investigating Officer, I am of the view that it is only just and proper that the investigation of Crime No. 381 of 2005 is taken away from the present Investigation Officer which is entrusted with a Senior Police Officer below the rank of Inspector General of Police. It is also necessary to see that the person who is appointed is having some knowledge about the working of the Retreat Centre. 10. The Special Investigation Team shall also enquire into the allegation of unnatural deaths stated in the petition. The team shall enquire as to whether a person by name Karyavelu worked in the burial ground and whether he died under mysterious circumstances. In any case was registered in connection with the death of Karyavelu the present stage of that investigation shall be verified and appropriate action taken. The Team shall also enquire w....
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....ed order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one's own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice. 45. It is unnecessary to go into the question as to whether Divine Retreat Centre is not a 'person' contemplated by Article 21 of the Constitution and express any opinion as to whether any right guaranteed by Article 21 of the Constitution has been infringed. Suffice it to note that, the Director of the appe....
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.... court can certainly treat the petition as one under Article 227 or Section 482 of the Code. The observations were made in the context of correcting grave errors that might be committed by the subordinate courts. The decision does not lay down any law that the High Court in exercise of its power under Section 482 of the Code or Article 227 may be resorted to constitute any special Investigating Agency to investigate into allegations made for the first time in an anonymous petition. 48. In our view, the whole of public law remedies available under Article 226 of the Constitution of India and the constituent power to issue writs in the natu 50. pre of mandamus, certiorari, prohibition and cowarranto are neither echoed nor transplanted into Section 482. May be both the powers to issue writs and pass appropriate orders under Section 482 of the Code are conferred upon the High Court but they undoubtedly operate in different fields. WHETHER THE ANONYMOUS PETITION IS TO BE TREATED AS PUBLIC INTEREST LITIGATION ? 49. The question that falls for our consideration is whether the anonymous letter sent in the name of a Judge can be entertained as Public Interest Litigation? It is well set....
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....application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular petition filed in Court. In S.P. Gupta & ors. Vs. President of India & ors. , this Court in clear and unequivocal terms observed that it would be prudent for the constitutional courts to confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legalaid organization which can take care of such cases. 50. The law in this regard is summarized in Janata Dal Vs. H.S. Chowdhary thus: It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Simil....
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....dentity? In the instant case, there is no whisper in the order passed by the High Court about any attempts made to verify the credentials, character or standing of the informant. Obviously, the High Court could not have verified the same since the petition received by it is an unsigned one. 54. In Bandhua Mukti Morcha Vs. Union of India & ors. (supra), this Court visualized grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication. It has been observed that the document petitioning the court for relief should be supported by satisfactory verification. This requirement is all the greater where petitions are received by the Court through the post. It is never beyond the bound of possibility that an unverified communication received through the post by the Court may in fact have been employed mala fide, as an instrument of coercion or blackmail or other oblique motive against a person named therein who holds a position of honour and respect in society. The Court must be ever vigilant against th....
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....e functioning. 59. In our view, the learned judge ought not to have entertained the anonymous petition, contents of which remain unverified and made it basis for setting the law in motion as against the appellant as he was not entrusted with the judicial duty of disposing of PIL matters. 60. Institution's own reputation is a priceless treasure. History teaches us that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility to resolve the issues which are otherwise not entrusted to it by adopting procedures which are otherwise not known. 61. There is heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as Public Interest Litigants. The individual judges ought not to entertain communications and letters personally addressed to them and initiate action on the judicial side based on such communication so as to avoid embarrassment; that all communications and petitions invoking the jurisdiction of the court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. The individual ....