TaxTMI 
TaxTMI 
2008 (3) TMI 734
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....Station to be taken away from the Investigating 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 receive....
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....ction. Nor did they attempt a DNA test. The lady had complained 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 un....
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.... in the file. In the above said the FPR 287 had raised serious allegation regarding the investigation. 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 C....
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....the victim nor the anonymous petition discloses any irregularity in the matter of investigation. The directions issued by 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....
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.... an investigation by the police. The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it 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 & an....
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....ntiated. 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. It is open to the 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. , ....
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....on may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. 23. Chandrachud, 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 i....
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....82 Cr.P.C. is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within 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 ....
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....Special Investigation Team submitted to this Court. The facts gathered by the Investigating Officer about the victim were part of the result of the investigation. This Court in M.C. Mehta Vs. Union of India [(2007) 1 SCC 110] upon analysis 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 po....
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....fence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the 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 t....
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....ission of any such cognizable offence. The learned Judge accordingly issued appropriate directions to the Government, the Director General of Police and all other departments of the Government to cooperate and render necessary assistance to the Special Investigation Team. 40. On 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 ....
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....hree CDs are enclosed. In the paper cuttings appended in the petition, it is alleged that a number of deaths took place under mysterious circumstances in and around the Retreat Centre. There is allegation of receipt of foreign money without proper authority. It is also necessary to enquire into 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 wh....
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....at accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned 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....
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....ed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. This Court took the view that if the court finds that the appellant could not invoke its jurisdiction under Article 226, the 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 conferr....
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.... redress in cases of Public Interest Litigation must be acting bone fide with a view to vindicating the cause of justice and not for any personal gain or private profit or of the political motivation or other oblique consideration. The Court should not allow itself to be activised at the instance of such person and must reject his 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 per....
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....survey or investigation or from the gravity or seriousness of the complaint set out in the information or from any other circumstance or circumstances appearing from the communication addressed to the court or to a Judge of the court on behalf of the court. 53. How to verify the credentials, character or standing of the informant who does not disclose his identity? 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 throug....
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.... must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the Court as a loose aggregate of individual Judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective 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 individ....