16 Sep 2021 12:26 PM GMT
The Kerala High Court on Wednesday dismissed a petition challenging the integrity of a Government Order directing further investigation into a criminal case against the State appointed DGP for possessing illegal assets by another investigating team. The question before the Court was whether an order issued by the State Government directing to conduct further investigation of a case was open...
The Kerala High Court on Wednesday dismissed a petition challenging the integrity of a Government Order directing further investigation into a criminal case against the State appointed DGP for possessing illegal assets by another investigating team.
The question before the Court was whether an order issued by the State Government directing to conduct further investigation of a case was open to challenge by a total stranger to that case.
Justice R. Narayana Pisharadi while disposing of the petition observed as such:
"The right to initiate criminal proceedings does not mean right to challenge or interfere or meddle with the investigation of a case. While any person has got right to initiate criminal proceedings, a third party or a total stranger has no right to interfere with such proceedings."
The second respondent Tomin J Thachankary, a senior police officer, was accused in a case pending before the Court of the Enquiry Commissioner and Special Judge based on the final report filed by the Special Cell of the Vigilance and Anti-Corruption Bureau (VACB).
The allegation against him was that, during the period from 01.01.2003 to 04.07.2007, he acquired and possessed assets worth Rs.64,70,891/-, which was disproportionate and in excess of 135.80% of his known sources of income.
He had filed an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 in the Special Court, which was dismissed on 29th May 2020. This order of the Special Court was subsequently challenged before the High Court but it was not pressed, and thereby dismissed.
Pursuant to such development, the State issued an Order dated 28th January 2021, granting sanction for conducting further investigation of the case by another special investigation unit of the VACB.
This order was issued by the Government on the basis of a representation made to it by the accused. In the case at hand, the said Government Order has been challenged by a third party by way of a writ petition.
The petitioner's contention was that the impugned order was issued by the State with the sole intention of protecting the second respondent and to further protract the trial of the case which is pending against him in the Special Court.
Advocate V. John Sebastian Ralph appearing for the petitioner, therefore, argued that the G.O was the result of mala fide exercise of power by the Government and it is liable to be quashed.
The Under Secretary to Government, Vigilance Department challenged the maintainability of the writ petition and also the locus standi of the petitioner to challenge the government order
Special Public Prosecutor of VACB A Rajesh representing the respondent argued that the petitioner is not a person aggrieved by the said order.
It was further submitted that the Government was empowered to issue direction for conducting further investigation of a criminal case pending in a court of law.
Key Findings of The Court:
The Court initially considered the question of locus standi in the matter.
It recalled that there is no provision either in the Act or the Code which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence.
However, the Court noted that the right to initiate criminal proceedings does not mean right to challenge or interfere or meddle with the investigation of a case.
"While any person has got right to initiate criminal proceedings, a third party or a total stranger has no right to interfere with such proceedings."
Locus standi of a person to prefer a complaint with regard to the commission of an offence under the Act cannot be equated with the right to challenge an order issued by the government directing to conduct further investigation of a case.
Although the petitioner claimed to be a person relentlessly fighting against corruption and the nefarious activities of government servants, the court noted that even if the petitioner is a crusader against corruption, it does not confer him any special right to interfere with the investigation of a case.
The Court noted that the petitioner was a total stranger to the case against the accused pending in the Special Court.
He was neither the informant nor the complainant in that case. He was not a witness or a direct victim of the offence allegedly committed by the accused. He was not a person in any manner affected by the impugned order.
On such grounds, the Court found it irresistible to conclude that the petitioner has no locus standi to challenge the order issued by the Government directing to conduct further investigation of the case against the second respondent.
The Counsel for the petitioner had submitted that further investigation of the case is being conducted by a special investigation unit comprising of police officers lower in the rank of the second respondent and therefore, the result of that investigation can be very much predicted.
However, the Court noted that the second respondent is an officer in the cadre of Director of General of Police in the State. In such a situation, investigation of the case by a police officer superior to him in rank is practically impossible.
Moreover, it was clarified that the supplementary report filed after conducting further investigation will not be the final word in the matter.
The Court pointed out that according to the first proviso to Section 17 of the Prevention of Corruption Act if a police officer not below the rank of an Inspector of Police is authorised by the State Government by general or special order, such officer can investigate the offence.
Therefore, it was held that there is no legal bar for the special investigation unit authorised by the Government to conduct the further investigation of the case against the second respondent
The Court asserted that Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bona fide and within the limits of its power. However, the power of judicial review is not intended to assume a supervisory role. The power is also not intended to review governance under the rule of law.
Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration for judicial review.
"The power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards."
It noted that when there is abuse or misuse of power, it is incumbent on the Court to intervene. However, the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.
"A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review."
Finding that the case did not call for any judicial review by this Court, the writ petition was dismissed.
Case Title: Bobby Kuruvilla v. State of Kerala & Anr
Click Here To Read The Order