V. Ramachandra Kurup vs State Of Kerala And Ors

The writ petitioner alleges that he had made Ext.P5 complaint to the Director, Vigilance and Anti-Corruption Bureau (VACB), Thiruvananthapuram

regarding the corrupt practices committed in the appointment to the posts of Peon and Secretary in the Karuvatta Service Co-operative Bank Limited

but no action has been taken on the complaint.

The writ petition is filed for directing the respondents to initiate appropriate legal action on Ext.P5 complaint in accordance with law.

Heard the learned counsel for the petitioner and respondents 3 to 6 and also the learned Public Prosecutor.

The Dy.S.P, VACB, Central Range, Ernakulam has filed a report dated 30.12.2019 in the writ petition, on behalf of the Director, VACB. It is

stated in this report that no complaint dated 25.11.2017 as Ext.P5 has been received by the VACB. However, it is stated that the petitioner had made

three petitions dated 07.11.2017, 13.11.2017 and 10.05.2018 before the VACB which contain the same allegations as contained in Ext.P5 and these

petitions were forwarded to the Additional Chief Secretary, Home and Vigilance Department, Thiruvananthapuram. It is stated that the above

petitions were forwarded so for conducting an enquiry in the matter through the internal vigilance of the department concerned. It is also stated in this

report that, if the above enquiry demands further probe by the VACB, it would be conducted accordingly.

When a complaint is received by the Director, VACB, it eludes comprehension why it should be forwarded to the department concerned for

conducting internal enquiry by that department.

The action which shall be taken, on receiving a complaint regarding commission of cognizable offences, has been explained by the Constitution

Bench of the Supreme Court in the decision in Lalita Kumari v. Government of U.P: AIR 2014 SC 187. The Constitution Bench has held as follows:

“(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no

preliminary inquiry is permissible in such a situation.

(ii) 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.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the

complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in

brief for closing the complaint and not proceeding further.

(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers

who do not register the FIR if information received by him discloses a cognizable offence.

(v) 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.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category

of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without

satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it

should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information

relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the

said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned aboveâ€​.

When a complaint alleging commission of a cognizable offence is received by a police officer, forwarding the complaint for conducting an internal

enquiry by the department concerned is not contemplated under the law.

Learned Public Prosecutor submitted that, in view of the recently introduced provision as Section 17A of the Prevention of Corruption Act, 1988

(for short 'the PC Act'), previous approval of the competent authority would be necessary to conduct any preliminary enquiry or investigation in the

matter by the VACB. There is no basis for this submission made by the learned Public Prosecutor. The amendment to the PC Act, by which Section

17A was introduced, came into effect only on 26.07.2018. All the three petitions made by the petitioner before the VACB, which are mentioned in the

report of the Dy.S.P, VACB, Central Range, had been made prior to that date. Therefore, no previous approval by the competent authority as

contemplated under Section 17A of the PC Act is necessary for conducting preliminary enquiry in those petitions. In Ramesh v. CBI (2020 (4) KHC

220: 2020 (4) KLT 351), this Court has held that the amendment made to PC Act as per Act 16 of 2018 is only prospective in operation.

Consequently, the writ petition is disposed of as follows: The Director, VACB (the second respondent in the writ petition) is directed to take

immediate action on the three petitions made by the petitioner, which are mentioned in the report dated 30.12.2019 filed by the Dy.S.P, VACB,

Central Range, Ernakulam, in the light of the directions issued by the Supreme Court in Lalita Kumari (supra).