Hon’ble High Court, You are also wrong!

Corruption is an oxygen mask to boost the public administration, to serve the people; that too in a Country, where the right to service is treated as a prominent right of the citizen. It is even treated as a necessary evil among the public servants, starting from a village man to the high offices of the Ministers.

Either in “bar bribe” or in “solar bribe” in Kerala, which are the most debating issues in the current scenario, the credibility of the persons officiating high offices are exposed largely or even to an extent of disgrace to our democratic polity.

Judicial inconsistency is one of the major setbacks in controlling public corruption. The appreciation of evidence is a pure subjective consideration of the Judges, who are handling the corruption cases.

A Kerala minister, who faces allegation on corrupt practices, resigned, when a Vigilance Special Judge issued order to register FIR and he is restored in the position, within short time, when the High court stays the order of Vigilance Judge.

Essentially, the common men, who are not literate in legal practices, are totally in confusion.  Who is right and who is wrong is the fundamental question, but the present adjudicatory system has no precise answer to this, but the higher or highest will be always right, no doubt, in our present system of administration of justice, which follows hierarchy in strict sense.

The order of the Special Judge, in “bar bribery” and “solar scam” cases are widely criticised on several points. Let us see, what are the major short comings of the said order?  As well, the rationality in criticism against the order.

• Does it offend the guidelines in Lalithakumari’s case    

Lalithakumari’s case is a landmark judgment in the field of interpreting the powers of the Police/ Investigating agencies, with reference to the provisions of law in Section 154 of Cr.P.C. There is nothing, in the judgment,  to prevent the powers of the Judge, acting under Section 156 (3) of the Cr.P.C., which is an independent power, unhindered by the power of the police under Section 154 (1) or 154 (3) of Cr.P.C. But there are wide criticisms on the point that without appreciating the credibility of the complainant and reasonableness of the nature of allegation, the Special Judge would not have proceeded under section 156(3).

In Lalthakumari, the Supreme Court found that even while acting under Section 154(1), a police officer is not obliged to examine the credibility or reasonableness of the content, if the offence alleged is a cognizable offence. It was observed that “evidently, the non- qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Cr.P.C. may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information.

In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case.  It also remind by the Court to the police that the use of the word ‘shall’ coupled with the scheme of the Act, lead to the conclusion that the legislators intended that if an information relating to commission of a cognizable offence is given, then it would mandatorily be registered by the officer in-charge of the police station  and the non qualification of the word “information” in Section 154 (1) unlike in Section 41(1) (a) and (g) of the Cr.P.C. is for the reason that the police officer should not refuse to record any information relating to the commission of a cognizable offence on the ground that he is not satisfied with the reasonableness or credibility of the information.

In other words, reasonableness or credibility of the information is not a condition precedent for the registration of a case. The court further observed that at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an inquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.

On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. The court added that the insertion of sub-section (3) of Section 154, by way of an amendment, reveals the intention of the legislature to ensure that no information of commission of a cognizable offence must be ignored or not acted upon which would result in unjustified protection of the alleged offender/accused. So there is nothing in Lalithakumari, to restrict the powers of the Special Judge, acting under Section 156(3) of Cr.P.C.

However in Madhu Bala vs. Suresh Kumar, (1997) 8 SCC 476, the Supreme Court settled, without any ambiguity, the power of a Judge acting under Section 156(3) and observed that whenever a Magistrate directs an investigation on a “complaint” the police has to register a cognizable case on that complaint treating the same as the FIR. In it larger scope, the Court observed that even if a magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the police to investigate into a “cognizable case” the police is duty-bound to formally register a case and then investigate into the same.

The provisions of the Code, therefore, do not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. When an order for investigation under Section 156(3) of the Code is to be made, the proper direction to the police would be “to register a case at the police station treating the complaint as the first information report and investigate into the same”, as observed by the Supreme Court.  The Supreme Court, through its Constitutional Bench, decided Lalithakumari, after noticing the guiding principles in  Madhu Bala and there is nothing wrong, if the Special Judge followed the principles in Madhu Bala, while dealing with the cases before him.

• Whether a pre-decision hearing is entitled by the Opposite Party?

The interpretation, in Madhu Bala, as noticed in Lalithakumari is said to be most harsh one, on the ground that the rights of the accused has been not protected and a hearing opportunity ought to have been granted to the accused, before proceeding under Section 156(3) of the Cr.P.C.  However, the Supreme Court, with reference to the power under section 154, further observed that while registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. The Court observed that in fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law, and there are several safeguards available against arrest. Moreover, it is also pertinent to mention that an accused person also has a right to apply for “anticipatory bail” under the provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining an order from the Court. The same principle is applicable in case of an opposite party, who is apprehending a police action, in consequence of an order under section 156(3) of the Special Judge also.

Thus the law settled in Lalithakumari is very clear, unambiguous and binding to all the courts in India.  The Supreme Court in unequivocal terms, held that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offence, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. They deserve a special protection considering the nature of service they rendered.

The court observed that it will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. To that extent the Court formulated following guidelines that

1. Registration of FIR is mandatory under Section 154 of the Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
3. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
4. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.
5. The category of cases in which preliminary inquiry may be made are as under:
6. Matrimonial disputes/ family disputes
7. Commercial offences
8. Medical negligence cases Corruption cases
9. Cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
10. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

So, in Lalithakumari’s case, except, giving certain guidelines, with respect to the powers of the Police Officer acting under Section 154, no guidelines are issued to a Judge who is acting under Section 156 (3) and to that extent the Special Judge is not bound to wait for or to allow the Vigilance Officers to file a verification report before directing registration of Crime.

The Supreme Court in Dilawar Singh v. State of Delhi, ruled that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. The Court also pointed out, after all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code.

The Supreme Court, explained the position that even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter. So, the Special Judge is justified in issuing an order registering the crime in bar bribery case.

• Does the Special judge bound to see the political agenda?

The finding of the Supreme Court in Parkash Singh Badal vs. State of Punjab, (2007) 1 SCC 1 would give an answer to the political criticism against the order of the Special Judge. He is not bound to examine the political reasoning behind filing the complaint. He is also not bound to see the political or executive post of the opposite parties against whom the allegations are made in the complaint. Supreme Court issued a categorical explanation answering to the said allegation and observed that when the allegation is made, investigation is undertaken to find out whether there is any substance in the allegation.

Merely because of the fact that the political opponent is coming as the complainant; that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof. Again the Court held that an investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence.

• Is Dilawar Singh a bad law or has no binding effect?

In Dilawar Singh, the Supreme Court, noticed and explained the powers of a Judicial Officer, acting under Section 156(3) of the Cr.P.C. But in Ramdev Food Products Private Limited’s case, the Supreme Court held that the direction under Section 156 (3) is to be issued, only after application of mind by the Magistrate. The court added that when the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to precede forthwith, direction under the said provision can be issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction can be issued. So, if the Judge is satisfied on the content of the complaint, he can issue a direction.

When corrupt practice of a person, who is serving in the highest executive post of the State, is exposed, before him and that too when is a member of a cabinet, under whom the investigation agency itself is working, is it not proper for the special Judge to act for the interest of justice, to act and issue direction under section 156 (3). However, in a particular set of facts, Supreme Court in Priyanka Srivastava’s case, the Supreme Court held that there are instances where Judicial officer takes cognizance and postpones issuance of process and in such case he has to determine “existence of sufficient ground” to proceed. In such cases the Judicial Officers have to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. So the court insisted mandatory compliance of Section 154(1) and 154(3), before filing a complaint under Section 156(3), which should be supported by a sworn affidavit of the complainant.

But a defective complaint can be corrected, but that does not bar the power of the Judge to exercise his power under Section 156(3), when there are gross illegalities found in the process of administration that too in such way abusing the process of law. Otherwise the power of a Judge under Section 156 (3) is redundant and futile. But the law declared in Dilawar Singh still holds the field and there is nothing in Priyanka to overrule Dilawar, but some additional guidelines are prescribed, without overruling Dilawar.

• Is prior sanction necessary to issue an order under Section 156(3) of Cr.P.C.

In Anil Kumar, the Supreme Court held that even for forwarding a complaint for investigation under section 156(3) of Cr.P.C, prior sanction is required.  But the decision is not followed, by the Court, since it is  without having any binding effect in view of the Constitution Bench decision of the Supreme Court in Nand Ram Agarwala, wherein it was held that the sanction is required at the stage of taking cognizance only and not prior to it. In a the recent Judgment, in Maneesh V. State of Kerala, the Kerala High Court followed Nand Ram and observed Anil Kumar has no binding effect.  Maneesh was a case in which the complainant was succeeded in convince the court, prima facie, by the content in the allegation, that opposite party has committed offence under Prevention of Corruption Act, but the complaint was not forwarded for investigation under section 156(3), want of prior sanction.

Hence, in “bar bribery” and “solar scam” cases, the opposite parties cannot succeed against the order of the Special Judge, simply on the ground that there is no prior sanction.

• Intolerance of Higher Courts against the Sub Ordinate Judges

Whether a Judge sitting in the Higher Court, entitles any special status over the judges of sub-ordinate judiciary. Is there any master servant relationship between them?  In Ishwari Prasad Mishra v. Mohammad Isa, the Supreme Court held that the use of intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of judicial poise and balance.  Supreme Court further added, “No doubt, if it is shown that the decision of the trial court in a given case is the result of a corrupt motive, the High Court must condemn it and take further steps in the matter. But the use of strong language and imputation of corrupt motives should not be made light heartedly because the judge against whom imputations are made has no remedy in law to vindicate his position.”

Again in H.Lyngdoh v. Crornfyn Lyngdoh,  the Supreme Court held that in the objective discharge of judicial function there is little justification nay, none-at-all to assume any attitude other than of judicial restraint or to use a language while referring to one’s colleagues, other than that which has been hitherto adopted by long usage.

In Sujatha vs State of Kerala, the Supreme court again advised the Judges of the High Court that one of the main principles of judicial discipline is that a judge should take special care in making disparaging remarks against a judge of a subordinate court or against a person or authority whose conduct comes in for consideration before him in cases to be decided by him. Making uncalled for remarks against the said persons or authorities would be violation of judicial discipline.

So, who is wrong and who is right, or, whether both are wrong? In the light of Priyanka Srivastava, the Special Judge is wrong, but he is right in the light of Dilawar Singh. But; is it not the High Court, totally wrong, in the light of Ishwari Prasad Mishra, for making personal remarks against the capacity of the Special Judge.

Dr.KP Pradeep is a lawyer in High Court of Kerala.

The views expressed above are purely personal.