Anti-Corruptiion Bureau and Caesar’s Wife

After going through the verdict in The Vigilance and Anti-Corruption Bureau Directorate Vs. Neyyattinkara P. Nagaraj and Others – 2015 (5) KHC 532 which had virtually de-throned a Cabinet  Minister of the State, I am penning down the legalities and illegalities of the said verdict which, in my opinion, could have been rendered after deeper study and research.  Some of the findings recorded in favour of the writ petitioner (Directorate of Vigilance and Anti-corruption Bureau) and some of the findings recorded against the writ petitioner, are in my view, wrong.

2. The finding in paras 10 to 16 of the verdict in question that the Factual Report submitted by the Investigating Officer       ( “I.O.” for short) in this case is part of the case diary (‘C.D” for short) and, therefore, the Court is entitled to call for and peruse the same during the stage of inquiry or trial, is absolutely correct.  This is because the Factual Report in this case was prepared after the registration of the F.I.R. and after conclusion of the investigation. The Vigilance Manual also contemplates a Factual Report, inter alia, before the registration of the FIR but after the conclusion of the preliminary enquiry/quick verification.  This Factual Report prepared after the preliminary enquiry/quick verification but prior to the commencement of investigation cannot form part of the C.D.  But  even if the Factual Report, in this case, forms part of the C.D. and can, therefore, be called for and perused by the Court under Section 172(2) Cr.PC, when the Court even at the stage of trial cannot use the contents of such Factual Report as evidence, is it permissible for the Court at the inquiry stage to rely on and reveal the contents of the Factual Report, is a question which has not been addressed by the learned Judge.  So is the position regarding the Scrutiny Report of the Director in the Vigilance set-up which is on similar lines with that of the Central Bureau of Investigation ( “CBI” for short).

3. I cannot endorse the reasoning given in paras 18 to 23 of the verdict in question for holding that para 59 (ii) of the Vigilance Manual (which says that a Vigilance case should be registered within 10 days of getting orders from the Directorate) is not contrary to the Cr.P.C.  To substantiate this point the learned Judge has relied on Section 158 Cr.PC and G.O.R.t No. 4/2002/dated 3-1-2002 to hold that the Director Vigilance
   And Anti-Corruption Bureau (VACB for short) should be deemed to be a superior police officer appointed under Section 158(1) Cr.P.C. and such superior officer has the power under Section 158(2) Cr.PC to give appropriate instructions to the I.O.   This view is, according to me, wrong.  Even if by the State Government  approving the Vigilance Manual as per the above G.O, the Director could deemed to be a superior police officer appointed under Section 158(1) Cr.PC, his power under Section 158(1) Cr.PC is only to submit before Court the report of the Officer-in-charge of the Police Station (“ SHO” for short) under Section 157(1) Cr.PC provided the State Government so directs.  The Vigilance Manual or the G.O.  referred to above do not direct that the report of the SHO under Section 157 (1)  Cr.PC  shall be submitted  to the Court through the Director.  Under Section 158(1) Cr.PC, the only role given to the superior police officer is to submit the above report before the Court, and that too if the State Government so directs.  Then the further role given to the superior police officer under Section 158(2) Cr.PC is not to give instructions to the SHO throughout the stage of investigation as has been assumed by the learned Judge.  The instructions envisaged by Section 158(2) Cr.PC is only on matters touching the question whether the SHO should or should not enter on an investigation under Section 157(1) Cr.P.C. and the superior police officer has to record on the report his instructions, if any, so given and transmit the report without any delay to the Court.  When the superior police officer has not been directed by the Government to transmit the report of the SHO to the Court, the question of such superior officer giving instructions to the SHO also does not arise. This is not a case where the superior police officer had taken over the investigation. Hence the power, if any, of the Director to give instructions to the I.O. has to be located elsewhere.  In any view of the matter, after the decision of the Constitution Bench of the  Supreme Court in Lalita Kumari  Vs. Govt. of U.P. and Others – (2014) 2 SCC1, when the information received by the  SHO is regarding the commission of a cognizable offence, then the SHO has no other alternative except to register an FIR (save in those enumerated cases where he may conduct a preliminary enquiry of course, with utmost respect, I wish to  say that I have my own reservations about the  ruling in Lalita Kumari to the effect that the scope of preliminary enquiry is only to find out whether a cognizable offence is alleged in the information and that the veracity or otherwise of the information is foreign to the scope of preliminary enquiry.  Corruption cases is one of the enumerated category of cases in which a preliminary enquiry is justified.  It is pertinent to note that all the offences under the P.C.Act, 1988 are cognizable offences and if so in a case where the information given is regarding the commission of an offence under the P.C. Act, no preliminary enquiry may be necessary. The Constitution Bench having approved P. Sirajuddin Vs. State of Madras (1970) 1 SCC 595 which in turn was apprehensive of the incalculable harm that could cause to a public servant and to the department he belonged unless prima facie evidence of guilt was made out before registering an FIR, was oblivious of the purpose behind the preliminary enquiry. Disgruntled elements who couldn’t curvy favours from a public servant will be too willing to bolster up false cases against the public servant.  The position of doctors will be still worse).   Thus, para 59(ii) of the Vigilance Manual which insists on the order of the Directorate for registering the FIR is contrary to Section 154(1) Cr.PC as judicially interpreted in Lalita Kumari.

4. In paras 25 and 26 of the verdict in question, after extracting paras 89 and 120.6 of Lalita Kumari (supra) the learned Judge has concluded as follows:-

“It was categorically held by the Constitution Bench that the provisions of the CBI Manual overrides the provisions of the Code of Criminal Procedure”.

I did not find such a proposition of law laid down in Lalitha Kumari.  In para 89 of Lalita Kumari itself what is observed is that the CBI Manual is not a statute, but only a set of administrative instructions for the internal guidance of the CBI officers and it cannot supersede the Cr.PC. The further observation in Lalita Kumari that the CBI is constituted under the Delhi Special Police Establishment Act, 1946, (‘ DSPE Act” for short) and derives its power to investigate under that Act and the powers of the CBI under the DSPE Act cannot be equated with the powers of the regular State Police under the Cr.PC, does not mean that the CBI Manual overrides the Cr.PC.  This is particularly so, since neither the DSPE Act nor the P.C. Act, 1988, prescribe a different procedure for investigation by the police and, therefore, by virtue of Section 4(2) Cr.PC, it is the Cr.PC which will apply regarding the procedure for investigation.  In para 4 of M.C. Mehta Vs. Union of India  (2007) 1 SCC 110 a three Judge Bench of the Apex Court has categorically held that the CBI Manual is subject to the provisions of Cr.PC and in case of a conflict between the two, the Cr.PC shall prevail.

5. Para 72(1) of the Vigilance Manual reads as follows:-

“72(1)     After completion of the investigation a report giving the facts, evidence and circumstances in each case (both for and against the prosecution) shall be forwarded by the Deputy Superintendent of Police to the Superintendent of Police concerned, who will forward the same along with his Forwarding Endorsement to the Director, through the IGP/DIP of Police concerned for further transmission to Government ( In cases personally investigated by the Superintendent of Police or other senior officers, the Factual Report will be  prepared by them.).  The final decision on a Factual Report either to prosecute an accused or subject him/them to an enquiry by Vigilance Tribunal or otherwise will be taken at the Directorate after assessing the quality and quantum of evidence”.

 After extracting Section 173(3) Cr.PC in para  27, the learned Judge observes in para 28  that the Superior Police Officer appointed under Section 158(1) Cr.PC has got the power to scrutinise the final report in case of a general or special order to that effect.  In para 29 of the verdict in question the learned Judge specifically held that there is no conflict with regard to the power of the Director under para 72(1) (wrongly mentioned as Section 72(1) of the Vigilance Manual and Section 173 (3) Cr.PC. But the learned Judge had already held in para 24 that the Factual Report submitted by the I.O. is not the final report under Section 173(2) Cr.P.C.  If the Factual Report is not the final report and if what the  Director, as superior Police Officer, can scrutinise under Section 173(3) Cr.PC is only the final report and not the Factual Report, then there is an apparent conflict between para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC.  In para 29 itself the learned Judge has found that the Director has not gone through the final report in this case.  If as a matter of fact, there is no conflict between para 72(1) of the Vigilance Manual and Section 173(3) Cr.PC, then there is no dispute that as per para 72(1) of the Manual the final decision on a Factual Report either to prosecute the accused or to subject him to an enquiry by the Vigilance Tribunal or otherwise, will have to be taken at the Directorate and not by the I.O.   That was precisely what the Director did in this case.  If, as found by the learned Judge, there is no conflict between Para 72 (1) of the Vigilance Manual and Section 173(3) Cr.PC., then what the Director did, namely, directing the I.O. to file the final report before Court after considering the foregoing discussion in the Scrutiny Report of the Director would be perfectly valid.  But the learned Judge has contradicted himself by saying in para 31  of the verdict that the Director has virtually substituted the opinion of the I.O. with his opinion in the final report.  In the last paragraph the learned Judge has remarked that as per para 72(1) of the Vigilance Manual and Section 158(2) Cr.PC the Director can give timely directions to the I.O. only during investigation and not after that.  Accordingly the learned Judge concluded that the Special Judge was right in ordering further investigation which ought to have been ordered by the Director instead of directing the I.O. to file a final report in tune with the scrutiny report.

6. I am afraid that the learned Judge has missed the scope and amplitude of Sections 158 and 173(3) Cr.PC and  para 72(1) of the Vigilance Manual.  As already stated, the purpose of appointing a superior police officer under Section 158(1) is for the limited purpose of submitting before Court the report of the SHO under Section 157(1) and his power to give instructions to the I.O is not available to him through out the stage of investigation.  His role ends with the submission of the report with the instructions, if any, given by him and recorded on the report.  Even this power he can exercise only if he is directed to do so by the State Government.  Likewise, if such a superior police officer has been appointed  under Section 158(1) Cr PC, the final report under Section 173(2) Cr.PC also can be filed through him before Court and that  again if the State Government so directs. (see Section 173(3) Cr.PC). Para 72(1) of the Vigilance Manual serves a totally different purpose.  Although the Factual Report by the I.O. is not the final report under Section 173(2) Cr.PC, it is a report submitted after the completion of investigation by the I.O.   It should not only contain the incriminating evidence and circumstances but also the exculpating circumstances ( i.e. both for and against the prosecution).  If it were to precede a refer report or a closure report it need only contain the circumstances against the prosecution and if it were to precede a charge-sheet, then it need only contain the incriminating circumstances.  Para 72(1) further says that the final decision on the Factual Report either to prosecute the accused or to subject him only to an enquiry before the Vigilance Tribunal will be taken at the Directorate after assessing the quality and quantum of evidence.  This is the organisational set up of the Vigilance Department which is on similar lines with that of the CBI.   Even if the Director were to be treated as a superior police officer within the meaning of Section 158 Cr.PC., in the absence of a Government direction to the Director to file the report under Section 198(1) or Section 173(3) Cr.PC, he cannot submit both the said reports.  The SHO or the I.O. himself should file those reports.  The power under Section 36 Cr.PC may, perhaps, cloth the Director to oversee the investigation by the I.O. and issue appropriate directions or guidelines to the I.O.   The decision of the Apex Court in R. Sarala Vs. T.V. Velu – (2000) 4 SCC 459 also indicates that it is not the Public Prosecutor but  the Superior Police Officer who has to advise the I.O. in the matter of investigation and the role of the Public Prosecutor is inside the Court.   In Reghuchandrabal  Vs. State of Kerala, Mr. Justice M. Sasidharan Nambiar held that the Factual Report submitted by the I.O. is not the final report and the Government on receipt of the Factual Report through the Director of Vigilance, were entitled to disagree with the opinion of the I.O. to file a refer report and that eventhough what the Home Minister ordered  in that case was re-investigation, it was  rightly clarified by the Director of Vigilance that the proper course open was further investigation under Section 173(8) Cr.PC. The direction by the Director of Vigilance to the I.O. to conduct further investigation, was accordingly upheld by the High Court of Kerala.   In Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke – (2015) 3 SCC 123, the situation was almost identical except that in the place of the Director of Vigilance it was the Director General of Vigilance in the State of Maharashtra where also there is a similar set up in the Vigilance Department.  In that case the I.O. submitted a Factual Report proposing to prosecute A1 (a Sub Divisional Magistrate) and A2 (Sheristadar of the SDM) for offences under Sections 7 and 13(1(d) of the P.C. Act. In the case of A1, the Director General of Vigilance disagreed with the I.O. and held that A1 could not be prosecuted since there was only evidence of acceptance of bribe and there was no evidence of demand of bribe and that the authenticity of the electronic evidence (compact disc) was not proved according to law.  The Vigilance Special Judge agreeing with the view of the Director General of Vigilance, accepted the closure report as against A1.  At the instance of the de- facto complainant the Bombay High Court set aside the order of the Special Judge dropping the proceedings against A1 and directed that A1 was also to be prosecuted.  In further appeal before the Apex Court, the view of the Special Judge was preferred by the Supreme Court to that of the High Court.  If these two decisions were adverted to and followed by the learned Judge, he could not have found fault with the Director who had faithfully adhered to para 72(1) of the Vigilance Manual without in any manner exceeding his limits.   There is not even a whisper of the above binding decisions in the verdict in question, in spite of  the fact that those citations were specifically pleaded in the writ petition ( a copy of which was got down and perused by me).  If according to the learned Judge there is no conflict between para 72(1) of the Vigilance Manual and the Cr.PC and if  as per para 72(1) and the aforesaid binding precedents the Director of Vigilance was entitled to take a decision as to whether the accused was to be prosecuted or not after assessing the quality and quantum of evidence and after studying the law on the point, the criticism made by the learned Judge in paras 29 and 31 against the Director, Mr. Vinson M. Paul (known for his unquestionable integrity and impartiality) even without hearing him, that the Director does not have unbridled power to direct the I.O. to file a final report in a particular manner, was uncalled for being opposed to para 72(1) of the Vigilance Manual  and the binding judicial verdicts adverted to above.  It is significant to note that in the Scrutiny Report the operative portion of which has been extracted in para 5 of the reported decision, the Director has not directed the I.O. to file a refer charge or closure report.  He has only directed the I.O. to file the final report before Court after considering the foregoing discussions in the Scrutiny Report.  The I.O. evidently on being convinced about the absence of the necessary ingredient in the offences alleged, was, without demur filing a closure report for dropping the proceedings.  One fails to see as to how the learned Judge could refuse to advert to the binding judicial precedents covering the field and embark upon a different interpretative exercise brushing aside the aforesaid precedents. If the rulings cited by the writ petitioner were to be followed, then whatever the Director of Vigilance did was perfectly legal and in accord with para 72(1) of the Vigilance Manual.

7. What was the great hurry in handing down the verdict without adequate study or research and topple the Vigilance set-up in the State which has been in vogue for more than two decades? The force which presumably impelled the Vigilance  Directorate to approach the High Court consequent on the Special Judge finding fault with the Director in acting according to para 72(1) of the Manual, has been repressed with double vigour by the verdict in question.  The organisational framework and equilibrium of the Vigilance Directorate stands dislocated and the operational freedom of the Director under the Vigilance Manual stands curtailed on a reasoning which unfortunately does not coincide with law as judicially settled.

7. In para 39 of the verdict in question destroying the homogeneity of the judgment we find the following observation:-

“39.  I am reminded of the Shakespearian saying that ‘Caesar’s wife must be above suspicion ‘.  The fundamental principle that justice is not only done but it should appear that it is done, is applicable not to the judiciary alone; whereas, it is equally applicable to the other two pillars of the State also.  In a case like this, it is quite natural that the common man may entertain a feeling that there cannot be a proper investigation by a State Machinery when the accused, against whom fingers are pointed out, is continuing as a Minister.” 

Thereafter, the learned Judge left the question to the conscience of the accused.  The invent message is loud and clear.  While it is unfortunate that  in this country the media presumes every person accused of an offence to be guilty, a court of justice should be free from any such predilection. I am not on the question of legality, morality or propriety of the above observation made in a writ petition filed by the Directorate of Vigilance and Anti-Corruption Bureau. My objection is regarding the authorship of the statement attributed to Shakespeare that Caesar’s wife must be above suspicion. As far as I could gather, William Shakespeare never made any such statement; nor did he doubt the nuptial fidelity of Pompeia.  The statement comes from  Plutarch’s account of Julius Caesar’s justification for his decision to divorce his wife Pompeia  consequent on the scandal which was spread pursuant to the detection of the libertine Publius  Clodius (who  was in love with Pompeia.), in the house in which the women of Caesar’s  household were celebrating a festival.

8. The Judge who rendered the verdict in question is one of my favourites. My endeavour through these articles is not to target any Judge or Advocate who constitute two sides of the same coin in the dispensation of justice.  My concern is for the subordinate judiciary the members of which may be tempted to follow a wrong judicial verdict as a binding precedent unless adequately educated.  If my articles help to enlighten both the Bench and the Bar and clear any lingering doubts, then my mission will be fulfilled.