A Stay Order Turns into a ‘SAVE ORDER’

Painful are the happenings in the State of Kerala. For the last 2 years political scenario is turning tumultuous.  Distasteful, despicable events denigrating the entire political spectrum are coming out in cascade.  Truly the politics of Kerala has pinned down to three Ws – women, wealth and wine.

Corruption is really the antithesis of democracy.  People select their Sovereign investing power with trust with the fond hope of their protection, orderliness and welfare.  When the Sovereign starts sale of trust, the polity turns against the Saviour.   Anti-corruption laws are moulded to guard the public trust in Sovereign and also to rein in him.  Any murmur of corruption against a public servant is to be enquired into to convince the polity that the public trust is not abused.

Solar scam, though was in the air for some time back, had the taste of only sensual facet till last week when the protagonist Saritha S. Nair revealed pay off of Rs.1.90 crore to the Chief Minister Oommen Chandy and Rs.40 lakhs to Mr. Aryadan Mohammed for favours received.  This statement made on oath before the Commission on Enquiry formed the basis of a complaint before the Vigilance Special Judge, Thrissur.  The order directing investigation was challenged before the High Court of Kerala.  While granting a stay order in the Chief Minister’s case, the Court went on castigating the Vigilance Special Judge in an unprecedented way.   The said course presumed to have prompted the Special Judge to seek voluntary retirement in no further time.  A big salute to the Special Judge who showed deference to the voice of higher judiciary, when the legitimacy of his continuance as Judicial Officer was doubted by his appointing authority.

The High Court, while coming down heavily on the Vigilance Judge, quoted Lalitha Kumari Case (2014 (2) SCC 1) to dub the order as illegal which approach of the High Court requires more legal scrutiny.  The perception of the High Court that Lalitha Kumari case invariably lays down the ratio that in all cases wherein corruption against public servant is alleged, a preliminary enquiry is mandatory is apparently fallacious and contrived to suit to the need of the needy.  In Lalitha Kumari, the Supreme Court, when dealing with the administration of criminal justice system emphasises the need for documentation of enquiry or investigation process.  Under Section 154 of the Code of Criminal Procedure, when an Officer-in-charge of Police Station receives information relating to the commission of a cognizable offence, he has to reduce it to writing.  As mandated by the following sections in the Code he has to conduct investigation and submit final report before the jurisdictional Court under Section 173 of the Code of Criminal Procedure.  For this documentation purpose, registration of FIR is a pre-requisite.  The Apex Court, allaying the fears of falsely prosecuted, clarifies that arrest contemplated in Cr.P.C. is not an inevitable fall out of registration of FIR but can happen only on the ‘information’ becoming a ‘reasonable complaint’ or ‘credible information’ under Section 41(1)(a) of the Code of Criminal Procedure.  (See para 73 of the judgment in Lalitha Kumari Case)

The Supreme Court verdict, even on cursory reading, at nowhere indicates that preliminary enquiry is a peremptory requirement as a prelude to registration of FIR.  ‘Information’ received in the Police Station sometimes does not reveal commission of a cognizable case but only indicates commission of an offence in which case, as a matter of prudence, preliminary enquiry was said to be desirable.  The Apex Court sets the outer limit for doing preliminary enquiry as 7 days and in exceptional cases it can traverse to 45 days.  When the Special Judge received complaint against Excise Minister K. Babu based on a revelation made in a solemn statement by a bribe giver during the course of another case, he ordered a quick verification/preliminary enquiry on the complaint.  The Special Judge, even without going for a preliminary enquiry, could have ordered registration of FIR as the basis of compliant is a piece of disclosure made before another Judicial Magistrate, the source of which is a solemn statement made on oath.  Though not mandated by Lalitha Kumari case to hold preliminary investigation, the Special Judge, as a matter of prudence and balancing of interest of accused and defacto complainant, ordered quick verification (QV).  But when the quick verification report failed to be delivered by the Investigating Officer, presumably up on pressures from political hierarchy, the Special Judge ordered registration of FIR against Minister K. Babu to facilitate the commencement of investigation.  Likewise, when the key player in the Solar scam, Saritha S. Nair, freed of her ambivalence and earlier prevarications, flushed out in spontaneity the stories behind the Solar scam, a kick back to Chief Minister and Electricity Minister surfaced.  This sworn statement reported by media and carried through visual images of interview recorded in Compact Disc formed the basis of complaint against Chief Minister and Electricity Minister before the Vigilance Judge.  These informations, undoubtedly disclosing commission of cognizable offence, were ordered to be investigated by registration of FIR.  How could the orders of the Special Judge be flawed for excess of jurisdiction warranting the interference of High Court under Article 226 or 227 of the Constitution?  The Special Judge, having unfettered jurisdiction under Section 190 of the Code of Criminal Procedure to take cognizance of offences upon Police report, private complaint, informations or knowledge, opted only to order investigation by the Vigilance Department to register FIR and submit final report. The propounders of the theory of ‘mandatory quick verification report’ lost sight of the fundamental fact that Lalitha Kumari is only dealing with ‘handling of information of cognisable offence received by a Police Officer’ under Section 154 of the Code of Criminal Procedure.  The checks and balances set therein are to countervail the rights of defacto complainants and probable accused and also to eliminate likelihood of false prosecutions by misusing police machinery.  The magisterial power to order investigation under Section 156(3) of the Code of Criminal Procedure is apparently not falling within its sweep.   It is presumed that the Special Judge exercises the power under Section 156(3) of the Code of Criminal Procedure by application of mind on the written complaint filed before him.   When he orders investigation under Section 156(3) of the Code of Criminal Procedure it is presumed to have been exercised after application of mind on the bare minimum requirement of ‘information revealing commission of offence’.   The exercise of power under Section 156(3), being in the nature of judicially flavoured one, is not in any way circumscribed by the decision of the Apex Court in Lalitha Kumari case which primarily contains guidelines to the Police in the exercise its of primordial function of the ‘Police State’.

Equally disturbing was the nature of interim orders passed in the cases.  When castigating the Vigilance Judge by accusing him of judicial delinquency and indiscipline the High Court of Kerala is hoist with its own petard.  Seeing  the  social peril of corruption and its unchecked and rampant ramification, the Apex Court in Satya Narayan Sharma Case (2001 (8) SCC 607) has run its fiat to all High Courts not to stall any proceeding under the Prevention of Corruption Act by invoking any power.  In open defiance to the above diktat and throwing away the constitutional obligation under Article 141 of the Constitution, the High Court of Kerala, in hurriedly and in culpable haste, frozen the investigation process in a case which otherwise would have snowballed into a big kickback.  In an unfortunate adjudicative adventure, the High Court indicated in its order about initiation of proceedings against the Special Judge on its administrative side when the Supreme Court off and on cautioned High Courts on passing of strictures against officers in the subordinate judiciary.  The Supreme Court, while considering expunction of remarks against a Judicial Officer in a case reminded the High Courts “......... Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his reasonings. ....... We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before courts of law unless it is really for the decision of the case as an integral part thereof.”  (Awani Kumar Upadhyay Vs. The Hon’ble High Court of Judicature at Allahabad and Ors. Decided on 13.02.2013). The curious fact in the said decision of the Supreme Court is that a Subordinate Judicial Officer invited strictures from the High Court on his failure to direct investigation under Section 156 (3) of the Code of Criminal Procedure.   Of course, a converse picture of the present episode.  Anyway, a heavy dent is made on the morale of the Subordinate judiciary with the observation of the High Court, that too at the interim stage of the proceedings.  It is also uncertain as to what would happen if the case in future is going to be heard by another Bench and the interim order is vacated.   A judicial order, if needed to be corrected on the judicial side, is made into a tool for bullying down the Subordinate Judiciary of the State.

Legal circles are dismayed at the intervention of High Court in a petition filed under Article 227 of the Constitution when its very maintainability itself is at stake.  The extra ordinary supervisory jurisdiction can be exercised when the subordinate judiciary wielded a jurisdiction which is not vested in it or failed to exercise a jurisdiction vested in it.  The Supreme Court observes “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby”.  (Surya Dev Rai case [(2003) 6 SCC 675], SCC pp. 695-96)  The Special Judge appears to have exercised his jurisdiction under Section 190 of the Cr.P.C. r/w. Section 156(3) of the Cr.P.C.   Visualise a situation wherein a Special Judge or a Magistrate comes across a video clipping aired in the visual media disclosing a heinous crime. If the Magistrate orders investigation by the Police into the episode, what malafides can be attributed to him for exercise of his magisterial power conferred on him under Sections 190 and 156 (3) of the Code of Criminal Procedure?  His magisterial power enables him to do so when he comes across private complaint, police report, information or otherwise upon his knowledge.  Persons believing in constitutional democracy and Rule of Law cannot find fault with the Special Judge as so awesome his powers of magistracy.

The Special Judge only exercised a jurisdiction apparently for the purpose for which it is established in accordance with the known canons of interpretation of his power.  Yet another danger of entertaining petition under Article 227 is that it will set an unhealthy precedent for the ‘suspected’ rushing to the Court for stalling investigation process when it is in limbo.  When the Apex Court judgments desist the ‘suspected’ from filing petitions in the High Court challenging investigation, the same is achieved in a circuitous and devious method by the accused in the bar bribery case and Solar scam case.  What law considers as a prohibited domain for common man is made open to a selected few.

Probity in public life is concern of all. The interest of polity is to see that its public servant is above board.  The subtleties or niceties of law may not become digestible for the polity especially when it is aspirational and normative.  When images of incrimination come out in visual media testified by their naked eyes, nuances or technicalities of law forbidding fact finding would be intolerable for the polity.  Probing into the probity of politicians is not an anathema.   Allegation or accusations can be purged only through an investigation process, which the public servant should find as a platform to vindicate his stand.  An investigation does not ipso facto turn out to incarceration at pre-trial stage.  Resignations are also not its inevitable fall out.  Of course it depends on one’s political morality.  The present interim stay stalling the proceedings of investigation into a corruption deal has the effect of slaying the investigation itself.  An order only stalling the arrest of the accused would have been more reasonable and equitable.  Now the stay order has turned out to be a ‘save order’.   With the interim stay irreparable damage is caused to the System.  But for whose balance of convenience it is?

Views Expressed above are purely personal.

Adv. S.Sanal Kumar is a Lawyer practising at High Court of Kerala.