'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.”
The High Court of Kerala has held that the court which ordered a further investigation in the vigilance case against the Finance Minister of Kerala, K.M. Mani is perfectly justified. Justice Kamal Pasha observed that the court ordered a further investigation as the Director of Vigilance failed to exercise his power under Section 173(3) Cr.PC. However the revision petition was disposed of by expunging the observations made in the order, against the Director of Vigilance that he has no power to give timely directions to the investigating officer.
In this case, the investigating officer had prepared a final report stating that there would be no successful prosecution against the accused, thereby seeking to get the proceedings dropped. Special Judge, Thiruvananthapuram perused the report filed and came down heavily on the Director of Vigilance by criticising that the directions issued by the Director of Vigilance has intruded into the arena of the investigation. The Special judge further observed that the Director of Vigilance through the said directions, has substituted his opinion of the investigating officer with his opinion. The court also directed the investigating officer to conduct a further investigation in the matter, under Section 173(8) Cr.P.C. A revision petition was filed by the Vigilance and Anti-corruption bureau in the High Court.
The High courtheld that a court can assess the investigation and look into the case diary to note down whether there is any factual error in the factual report regarding the materials collected in the investigation conducted by the investigating officer and it has the liberty to peruse the case diary.
The High court observed that the Director of Vigilance' has gone to the extent of directing the investigating officer to submit a final report in tune with the scrutiny report furnished by him. The court said that there is no conflict with regard to the power conferred on the Director of Vigilance as per Section 72(1) of the Vigilance Manual and powers of such superior officer under Section 173(3) Cr.PC. It also added that the Director of Vigilance has not exercised his powers in this case under Section 173(3) Cr.PC., as he has not gone through the final report in the matter and as he has not ordered a further investigation in the matter under Section 173(3) Cr.PC.
The court noted that the Director of Vigilance based on the legal opinion received by him, from senior Supreme Court lawyers acted mechanically by holding that there are no grounds to bring out the offences under Sections 7 and 13(1) (d) read with Section 13(2) of the P.C.Act. In this context Justice Kemal Pasha remarked “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.”
In the revision petition, it was averred that the opinion of the Advocate General of the State or any Law Officer under him was not attempted, since the accused is also the Law Minister of the State and the Director made an honest attempt to get the best opinion from other experts on the issue. The court asked “Whether the common man should pay for that also? I am not making any further comments on it, as this Court is not invited to answer such questions. I am leaving that question to the conscience of the accused!”
Regarding the observation made by the Special Judge on the materials collected by the investigation etc., the High Court said that he could have avoided those observations. The court also clarified that the Director of Vigilance has got sufficient power and authority by exercising his powers under paragraph 72(1) of the Vigilance Manual read with Section 158(2)Cr.PC. to give timely directions in the matter of investigation, and not after that.
Read the order here.