Thursday 16 September 2021

Whether strangers to the criminal case can interfere in its investigation?

 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.

It is stated in the writ petition that the petitioner is a person who

is relentlessly fighting against corruption and the nefarious

activities of government servants. 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. In Sanjai

Tiwari (supra), the third party had claimed that he was a social

activist and an Advocate. But, the Apex Court did not approve

his locus standi to expedite the trial of the corruption case which

was pending in the competent court.

19. Courts must do justice by promotion of good faith and

prevent law from crafty invasions. Easy access to justice should

not be misused as a licence to file misconceived and frivolous

petitions (See M/s Holicow Pictures Private Limited v. Prem

Chandra Misra : AIR 2008 SC 913).

20. The petitioner is a total stranger to the case against

the second respondent which is pending in the Special Court. He

is not the informant or the complainant in that case. He is not a

witness in that case. He is not a direct victim of the offence

allegedly committed by the second respondent. He is not a

person in any manner affected by Ext.P1 order. Following the

decisions in Janata Dal (supra) and Sanjay Tiwari (supra), the

conclusion is irresistible that the petitioner has no locus standi to

challenge Ext.P1 order issued by the Government directing to

conduct further investigation of the case against the second

respondent.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 7692 OF 2021

BOBBY KURUVILA Vs  STATE OF KERALA

PRESENT

 MR. JUSTICE R. NARAYANA PISHARADI

Dated this the 15th day of September, 2021


Is an order issued by the State Government, directing to

conduct further investigation of a case, open to challenge by a

total stranger to that case? This is the crucial question that arises

for consideration in this writ petition.

2. The second respondent is a senior police officer. He is

the accused in the case C.C.No.3/2020 pending in the Court of

the Enquiry Commissioner and Special Judge, Kottayam. It is a

case based on the final report filed in Crime No.VC3/2007/SCE by

the Vigilance and Anti-Corruption Bureau (VACB), Special Cell,

Ernakulam.

3. The offence alleged against the second respondent in

the above case is punishable under Section 13(1)(e) read with

13(2) of the Prevention of Corruption Act, 1988 (for short 'the

Act'). The allegation against him is 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.

4. The second respondent filed an application for

discharge under Section 239 of the Code of Criminal Procedure,

1973 (for short 'the Code') in the Special Court. The aforesaid

application was dismissed by the Special Court on 29.05.2020.

The second respondent filed Crl.R.P.No.399/2020 in this Court

challenging that order. The above revision petition was dismissed

by this Court on 18.12.2020 as not pressed.

5. Thereafter, the Government of Kerala issued Ext.P1

order dated 28.01.2021, granting sanction for conducting further

investigation of the case under Section 173(8) of the Code 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 second respondent.

6. The present writ petition is filed by a third party for

quashing Ext.P1 government order.

7. On behalf of the first and the third respondents, the

Under Secretary to Government, Vigilance Department has filed a

statement, challenging the maintainability of the writ petition and

also the locus standi of the petitioner to challenge Ext.P1

government order.

8. No notice was issued to the second respondent. Heard

learned counsel for the petitioner and the learned Special

Government Pleader (Vigilance) / Public Prosecutor.

9. The history of the case against the second respondent

now pending in the Special Court is narrated in the writ petition.

Learned counsel for the petitioner made elaborate submissions,

expanding the grounds mentioned in the writ petition,

challenging Ext.P1 government order. He has contended that

Ext.P1 order was issued by the Government 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. Learned counsel has contended that Ext.P1 order

is the result of mala fide exercise of power by the Government

and it is liable to be quashed.

10. Per contra, learned Public Prosecutor contended that

the writ petitioner has no locus standi to challenge Ext.P1 order

issued by the Government. Learned Public Prosecutor contended

that the petitioner is not a person aggrieved by Ext.P1 order.

Learned Public Prosecutor also submitted that the Government

has got every power to issue direction for conducting further

investigation of a criminal case pending in a court of law.

Learned Public Prosecutor further submitted that Ext.P1 order

was issued by the Government on the basis of a representation

made by the accused in the case and there was no mala fide

exercise of power by the Government in issuing that order.

11. The question of locus standi of the petitioner to

challenge Ext.P1 order shall be considered at first. The

requirement of locus standi of a party to a litigation is

mandatory. The legal capacity of the party to any litigation

whether in private or public action in relation to any specific

remedy sought for has to be primarily ascertained at the

threshold.

12. True, unless specifically indicated by a statutory

provision, locus standi of the complainant is a concept foreign to

criminal jurisprudence.

13. The Constitution Bench of the Supreme Court, in A. R.

Antulay v. Ramdas Sriniwas Nayak : AIR 1984 SC 718, has

held as follows:

“It is a well recognised principle of criminal

jurisprudence that anyone can set or put the

criminal law into motion except where the statute

enacting or creating an offence indicates to the

contrary. The scheme of the Code of Criminal

Procedure envisages two parallel and independent

agencies for taking criminal offences to court.

Even for the most serious offence of murder, it

was not disputed that a private complaint can,

not only be filed but can be entertained and

proceeded with according to law. Locus standi of

the complainant is a concept foreign to criminal

jurisprudence save and except that where the

statue creating an offence provides for the

eligibility of the complainant, by necessary

implication the general principle gets excluded by

such statutory provision. . .... In other words,

the principle that anyone can set or put the

criminal law in motion remains intact unless

contra indicated by a statutory provision. This

general principle of nearly universal application is

founded on a policy that an offence i.e. an act or

omission made punishable by any law for the

time being in force is not merely an offence

committed in relation to the person who suffers

harm but is also an offence against society. The

society for its orderly and peaceful development

is interested in the punishment of the offender.

Therefore, prosecution for serious offences is

undertaken in the name of the State representing

the people which would exclude any element of

private vendetta or vengeance. If such is the

public policy underlying penal statutes, who

brings an act or, omission made punishable by

law to the notice of the authority competent to

deal with it, is immaterial and irrelevant unless

the statute indicates to the contrary. Punishment

of the offender in the interest of the society being

one of the objects behind penal statutes enacted

for larger good of the society, right to initiate

proceedings cannot be whittled down,

circumscribed or fettered by putting it into a

straight jacket formula of locus standi unknown

to criminal jurisprudence, save and except

specific statutory exception. To hold that such an

exception exists that a private complaint for

offences of corruption committed by public

servant is not maintainable, the Court would

require an unambiguous statutory provision and a

tangled web of argument for drawing a far

fetched implication, cannot be a substitute for an

express statutory provision”.

14. 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 (See

Dr.Subramanian Swamy v. Dr. Manmohan Singh : AIR

2012 SC 1185).

15. However, 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.

16. Janata Dal v. H. S. Chowdhary : (1991) 3 SCC 756

was a public interest litigation for quashing a FIR lodged by the

CBI, based on the core allegation that certain named and

unnamed persons had entered into a criminal conspiracy in

pursuance whereof they had secured illegal gratification of crores

of rupees from Bofors, a Swiss Company, through their agents as

motive or reward. The C.B.I. had moved an application in the

Delhi High Court for the issuance of a letter rogatory to the Swiss

authorities for assistance in conducting investigation, which

request was conceded. An advocate, Shri Harinder Singh

Chowdhary, filed a criminal revision application before the High

Court of Delhi for quashing the F.I.R and the letter rogatory on

certain grounds. Several questions of law and fact were raised in

support of the challenge. The High Court came to the conclusion

that the said third party litigant had no 'locus standi' to maintain

the action and so also the interveners had no right to seek

impleadment/ intervention in the said proceeding. However, the

High Court took suo motu cognizance of the matter and directed

issue of show cause notice to the C.B.I and the State why the

F.I.R. should not be quashed. On appeal, the Apex Court came to

the conclusion that the High Court was right in holding that the

advocate litigant as well as the interveners had no 'locus standi'.


In that case, besides the advocate litigant, certain political

parties like the Janata Dal, the C.P.I. (Marxist), the Indian

Congress (Socialist) had also approached the Apex Court

challenging the order of the High Court rejecting their request for

impleadment/intervention.

17. In Sanjai Tiwari v. State of U.P : AIR 2021 SC 162,

a third party filed application under Section 482 of the Code in

the High Court seeking expeditious disposal of a criminal case

under the Act. The High Court directed the trial court to expedite

the proceedings of the aforesaid case and conclude the same, at

the earliest possible in accordance with law, without granting any

unnecessary adjournment to either of the parties. In appeal, the

Supreme Court set aside the order of the High Court, holding as

follows:

“It is well settled that criminal trial where

offences involved are under the Prevention of

Corruption Act have to be conducted and

concluded at the earliest since the offences under

Prevention of Corruption Act are offences which

affect not only the accused but the entire society

and administration. It is also well settled that the

High Court in appropriate cases can very well

under Section 482 Cr.P.C or in any other

proceeding can always direct trial court to

expedite the criminal trial and issue such order as

may be necessary. But the present is a case

where proceeding initiated by respondent No.2

does not appear to be a bona fide proceeding.

Respondent No.2 is in no way connected with

initiation of criminal proceeding against the

appellant. Respondent No.2 in his application

under Section 482 Cr.P.C in paragraph 6 has

described him as a social activist and an

Advocate. An application by a person who is in no

way connected with the criminal proceeding or

criminal trial under Section 482 Cr.P.C cannot

ordinarily be entertained by the High Court. A

criminal trial of an accused is conducted in

accordance with procedure as prescribed by the

Criminal Procedure Code. It is the obligation of

the State and the prosecution to ensure that all

criminal trials are conducted expeditiously so that

justice can be delivered to the accused if found

guilty. The present is not a case where

prosecution or even the employer of the accused

have filed an application either before the trial

court or in any other Court seeking direction as

prayed by respondent No.2 in his application

under Section 482 Cr.P.C. .......... We are fully

satisfied that respondent No.2 has no locus in the

present case to file application under Section 482

Cr.P.C asking the Court to expedite the hearing in

criminal trial. We have already observed that all

criminal trials where offences involved under the

Prevention of Corruption Act have to be concluded

at an early date and normally no exception can be

taken to the order of the High Court directing the

trial court to expedite the criminal trial but in the

present case the fact is that proceedings have

been initiated by respondent No.2 who was not

concerned with the proceedings in any manner

and the respondent No.2 has no locus to file the

application which was not clearly maintainable,

we are of the view that the impugned judgment of

the High Court dated 09/09/2020 cannot be

sustained”.

(emphasis supplied)

18. 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.

It is stated in the writ petition that the petitioner is a person who

is relentlessly fighting against corruption and the nefarious

activities of government servants. 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. In Sanjai

Tiwari (supra), the third party had claimed that he was a social

activist and an Advocate. But, the Apex Court did not approve

his locus standi to expedite the trial of the corruption case which

was pending in the competent court.

19. Courts must do justice by promotion of good faith and

prevent law from crafty invasions. Easy access to justice should

not be misused as a licence to file misconceived and frivolous

petitions (See M/s Holicow Pictures Private Limited v. Prem

Chandra Misra : AIR 2008 SC 913).

20. The petitioner is a total stranger to the case against

the second respondent which is pending in the Special Court. He

is not the informant or the complainant in that case. He is not a

witness in that case. He is not a direct victim of the offence

allegedly committed by the second respondent. He is not a

person in any manner affected by Ext.P1 order. Following the

decisions in Janata Dal (supra) and Sanjay Tiwari (supra), the

conclusion is irresistible that the petitioner has no locus standi to

challenge Ext.P1 order issued by the Government directing to

conduct further investigation of the case against the second

respondent.

21. The petitioner had filed W.P.(C) No.36179/2005 before

this Court during the primary investigation stage of the case

seeking to issue a direction to the investigating officer to

complete the enquiry/investigation expeditiously. The aforesaid

writ petition was dismissed by this Court as per Ext.P2 judgment,

on the basis of the submission made by the learned Public

Prosecutor that factual report would be submitted within a period

of six months. Thereafter, the petitioner had filed Contempt of

Court Case (C) No.592/2010 alleging violation of the above

undertaking made before this Court. C.C.C.No.592/2010 was

closed by this Court with the observation that this Court expected

that the investigation in the case shall be completed and final

report shall be filed as expeditiously as possible.

22. Ext.P4 is the copy of the order passed by this Court in

C.C.C No.592/2010. Ext.P4 order shows that this Court had given


option to the petitioner to approach this Court afresh if

appropriate action was not taken in the matter. There is also an

observation made by this Court in Ext.P4 order that departmental

action on the allegations against the second respondent shall also

be taken to bring the proceedings to its logical conclusions and

that such action is necessary to restore the faith of the

individuals like the petitioner in the rule of law.

23. Learned counsel for the petitioner, relying upon Ext.P2

judgment and the observations in Ext.P4 order, would contend

that the petitioner has locus standi to challenge the order passed

by the Government for further investigation of the case against

the second respondent.

24. On the basis of Ext.P2 judgment and Ext.P4 order, it

cannot be found that the petitioner has got right to challenge

Ext.P1 order issued by the Government for conducting further

investigation of the case. The locus standi of the petitioner was

not considered by this Court in the above proceedings. No finding

regarding the locus standi of the petitioner was made by this

Court in the above proceedings.

25. Section 156(1) of the Code empowers any officer in

charge of a police station to investigate any cognizable case

which a Court having jurisdiction over the local area within the

limits of such station would have power to inquire into or try

under the provisions of Chapter XIII. Section 173(2) of the Code

provides that, as soon as the investigation is completed, the

officer in charge of the police station shall forward to a Magistrate

empowered to take cognizance of the offence on a police report,

a report in the form prescribed by the State Government, which

shall contain the particulars prescribed under clauses (a) to (h)

therein. Section 173(8) of the Code states that, nothing in

Section 173 shall be deemed to preclude further investigation in

respect of an offence after a report under sub-section (2) has

been forwarded to the Magistrate and, where upon such

investigation, the officer in charge of the police station obtains

further evidence, oral or documentary, he shall forward to the

Magistrate a further report or reports regarding such evidence in

the form prescribed.

26. Section 36 of the Code states that, police officers

superior in rank to an officer in charge of a police station may

exercise the same powers, throughout the local area to which

they are appointed, as may be exercised by such officer within

the limits of his station. Section 18(1) of the Kerala Police Act,

2011 provides that the administration, supervision, direction and

control of the police throughout the State shall, subject to the

control of the Government, be vested in an officer designated as

the State Police Chief.

27. In State of Bihar v. J.A.C. Saldanha : AIR 1980 SC

326, the two substantial questions that arose for consideration

before the Apex Court were: (a) whether the State Government

was competent to direct further investigation in a criminal case in

which a report was submitted by the investigating agency under

Section 173(2) of the Code to the Magistrate having jurisdiction

to try the case? (b) when the investigation was in progress,

whether the High Court was justified in interfering with the

investigation and prohibiting or precluding further investigation in

exercise of its extraordinary jurisdiction under Article 226 of the

Constitution?

28. The Apex Court, in J.A.C. Saldanha (supra), held that

the State Government is competent to direct further

investigation, even by a superior police officer, in a criminal case

in which a report has been submitted by the investigating agency

under Section 173(2) of the Code. The Apex Court also held that,

unless an extra ordinary case of gross abuse of power is made

out by those who are in charge of investigation, further

investigation cannot be thwarted by the High Court by

interference in exercise of its jurisdiction under Article 226 of the

Constitution of India.

29. In Popular Muthiah v. State : (2006) 7 SCC 296,

the Apex Court has held as follows:

“When a power under sub-section (8) of Section

173 of the Code of Criminal Procedure is

exercised, the court ordinarily should not interfere

with the statutory power of the investigating

agency. It cannot issue directions to investigate

the case from a particular angle or by a particular

agency”.

The Apex Court has also held as follows:

“Investigation of an offence is a statutory

power of the police. The State in its discretion

may get the investigation done by any agency

unless there exists an extraordinary situation”.

(emphasis supplied).

30. In Reghuchandrabal v. State of Kerala : 2009 (3)

KHC 755, this Court has categorically held that the State

Government can order further investigation of a case.

31. Merely because power may sometimes be abused, it is

no ground for denying the existence of the power. The wisdom of

man has not yet been able to conceive of a government with

power sufficient to answer all its legitimate needs and at the

same time incapable of mischief (State of Rajasthan v. Union

of India : AIR 1977 SC 1361).

32. Learned counsel for the petitioner has contended that,

Ext.P1 order smacks of mala fides in the exercise of power by the

Government, at the instance of the accused in the case, and for

that reason it is liable to be quashed.

33. Ext.P1 order reveals that the second respondent had

made a representation to the Government stating that, during

the primary investigation conducted in the case, the investigating

officer had refused to incorporate relevant documentary evidence

which would indicate the full extent of his known sources of

income and that the investigating officer also did not consider the

income of his wife and the gifts given to him by his siblings and

his mother. It was on the basis of the aforesaid representation

made by the second respondent that Ext.P1 order was issued by

the Government granting sanction for conducting further

investigation of the case.

34. An accused has no right to be heard at the stage of

investigation (Narendra G.Goel v. State of Maharashtra :

(2009) 6 SCC 65). The accused has no right with reference to

the manner of investigation or mode of prosecution (Sanjiv

Rajendra Bhatt v. Union of India : (2016) 1 SCC 1). It is

trite law that accused persons do not have a say in the matter of

appointment of an investigation agency. The accused persons

cannot choose as to which investigation agency must investigate


the offence allegedly committed by them (Narmada Bai v.

State of Gujarat : AIR 2011 SC 1804). The decision to

investigate or the decision on the agency which should

investigate does not attract principles of natural justice. The

accused cannot have a say in who should investigate the offences

he is charged with (C.B.I v. Rajesh Gandhi : AIR 1997 SC

93). Neither the accused nor the complainant or informant is

entitled to choose his own investigating agency to investigate a

crime in which he may be interested (Divine Retreat Centre v.

State of Kerala : AIR 2008 SC 1614).

35. An accused has no right to have any say as regards the

manner and method of investigation. Save under certain

exceptions under the entire scheme of the Code, the accused has

no participation as a matter of right during the course of the

investigation of a case instituted on a police report till the

investigation culminates in filing of a final report under Section

173(2) of the Code or in a proceeding instituted otherwise than

on a police report till the process is issued under Section 204 of

the Code, as the case may be. The provisions relating to the

investigation under Chapter XII of the Code do not confer any

right of prior notice and hearing to the accused (Union of India

v. W.N.Chadha : AIR 1993 SC 1082).

36. The fact, that the accused has no right to choose the

investigating agency or to dictate the manner and method of

investigation of the case against him, does not mean that he

cannot even make a representation to the Government or the

investigating officer to conduct further investigation. The

Government or the investigating officer may or may not act upon

such representation. There is nothing illegal, if the Government

or the investigating officer, decides to conduct further

investigation of a case acting upon such representation.

37. In V.S.Achuthanandan v. State of Kerala (2012

(4) KHC 874), this Court has observed as follows:

“No doubt, the accused has no right to

canvass who should conduct the investigation in the

crime proceeded against him. However, when he

has got a grievance that the investigation is

conducted in a most unfair manner, his right to

approach a superior police officer to look into that

matter by moving a representation cannot be


considered as something which he could not

canvass of or seek redressal.”

The above observations of this Court would clearly show that an

accused has right to make representation or application to the

Government or a superior police officer for conducting further

investigation of the case against him on the ground that the

investigation already conducted was unfair.

38. The investigating officer may exercise his statutory

power of further investigation in several situations. It need not be

only when new evidence or facts come to his notice. When

certain aspects of the matter had not been considered during the

investigation already conducted and if it is found that further

investigation is to be carried out from a different angle, it can be

done. An accused can bring to the notice of the Government or

the investigating officer certain facts which had been omitted to

be noticed or investigated earlier. There is no legal impediment or

prohibition for the accused to bring to the notice of the

Government or a superior police officer any fact which was

omitted to be traced out at the stage of submission of the earlier

report.

39. A very wide power is vested in the investigating agency

to conduct further investigation after it has filed the report in

terms of Section 173(2) of the Code. The legislature, in Section

173(8) of the Code, has specifically used the expression ‘nothing

in this section shall be deemed to preclude further investigation

in respect of an offence after a report under Section 173(2) has

been forwarded to the Magistrate’, which unambiguously

indicates the legislative intent that even after filing of a report

before the court of competent jurisdiction, the investigating

officer can still conduct further investigation and where, upon

such investigation, the officer in charge of a police station gets

further evidence, oral or documentary, he shall forward to the

Magistrate a further report or reports regarding such evidence in

the prescribed form. The scope of such investigation is restricted

to the discovery of further oral and documentary evidence. Its

purpose is to bring the true facts before the Court even if they

are discovered at a subsequent stage to the primary investigation

(Vinay Tyagi v. Irshad Ali : (2013) 5 SCC 762).


40. The purpose of the provision contained in Section

173(8) of the Code is to enable the investigating agency to

gather further evidence and that cannot be frustrated (See State

of West Bengal v. Salap Service Station : 1994 SCC (Cri)

1713).

41. The hands of the investigating agency should not be

tied down on the ground that further investigation may delay the

trial, as the ultimate object is to arrive at the truth. The mere

fact that there may be further delay in concluding the trial shall

not stand on the way of further investigation if that would keep

the Court in arriving at the truth and do real and substantial as

well as effective justice (See Hassanbhai Valibhai Qureshi v.

State of Gujarat : AIR 2004 SC 2078).

42. There can be no basis for the apprehension of the

petitioner that the further investigation ordered by the

Government would result in filing a negative supplementary final

report exonerating the second respondent and thereby the

second respondent would escape from the clutches of law. The

supplementary final report that would be filed by the

investigating officer, after conducting the further investigation,

will not be the final word regarding the guilt or otherwise of the

second respondent. Such a report would be subjected to scrutiny

by the competent court.

43. The further investigation cannot trench upon the

proceedings before the court because the final word in regard to

further action is with the Magistrate. That final word is sufficient

safeguard against any excessive use or abuse of the power of

further investigation by the police (See Ram Lal Narang v.

State : AIR 1979 SC 1791).

44. If the police files a refer report after conducting further

investigation, it will not be the end of the matter. The previous

as well as supplementary report shall form part of the record

which the trial court is expected to consider for arriving at any

appropriate conclusion in accordance with law. Further

investigation does not have the effect of wiping out directly or

impliedly the initial investigation conducted and the earlier final

report filed by the investigating officer (See Vinay Tyagi v.

Irshad Ali : (2013) 5 SCC 762).

45. Once a final report is filed in terms of sub-section (2) of

Section 173 of the Code, it is the Magistrate and Magistrate alone

who can take appropriate decision in the matter one way or the

other. If he errs while passing a judicial order, the same may be a

subject matter of judicial review (See M.C. Mehta v. Union of

India : AIR 2008 SC 180). This principle is applicable also to a

supplementary report filed after conducting further investigation.

46. Learned counsel for the petitioner contended that

Ext.P1 order is the result of mala fide exercise of power.

47. "Legal malice" or "malice in law" means 'something

done without lawful excuse'. In other words, 'it is an act done

wrongfully and wilfully without reasonable or probable cause, and

not necessarily an act done from ill feeling and spite'. It is a

deliberate act in disregard of the rights of others. Malice in law

has been dealt as "something done without lawful excuse". Malice

in law is also mala fide exercise of power, exercise of statutory

power for purposes foreign to those for which it is in law intended

(See Ramjit Singh Kardam v. Sanjeev Kumar : AIR 2020 SC

2060).

48. Where malice is attributed to the State, it can never be

a case of personal ill will or spite on the part of the State. If at

all, it is malice in legal sense, it can be described as an act which

is taken with an oblique or indirect object. The legal malice,

therefore, on the part of the State as attributed to it should be

understood to mean that the action of the State is not taken

bona fide (See State of A.P. v. Goverdhanlal Pitti : (2003) 4

SCC 739).

49. True, Ext.P1 order was passed by the Government

immediately after the dismissal of the revision petition filed

before this Court by the second respondent challenging the order

of the trial court dismissing the application for discharge filed by

him. But, merely for that reason, mala fides cannot be attributed

against the State.

50. There is every presumption in favour of the

administration that the power has been exercised bona fide and

in good faith. The burden of establishing mala fides is very heavy

on the person who alleges it. The allegations of mala fides are

often more easily made than proved, and the very seriousness of

such allegations demands proof of a high order of credibility (See

E.P. Royappa v. State of Tamil Nadu : AIR 1974 SC 555).

51. Striking down any act for mala fide exercise of power is

a judicial reserve power exercised lethally, but rarely. The charge

of mala fides against public bodies and authorities is more easily

made than made out. It is the last refuge of a losing litigant (See

Gulam Mustafa v. State of Maharashtra: AIR 1977 SC 448).

52. Learned counsel for the petitioner would submit that

the further investigation of the case is being conducted by a

special investigation unit comprising of police officers lower in the

rank of second respondent and therefore, the result of that

investigation can be very much predicted. 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,

as noticed earlier, the supplementary report that would be filed

after conducting further investigation will not be the final word in

the matter.

53. In State of U.P. v. Surinder Pal Singh: AIR 1989

SC 811, the Supreme Court had occasion to consider the

competency of the Inspector of Police of Crime Branch, C.I.D.,

who was duly authorised by State Government in accordance

with law, in investigating the offence covered by Section 5(1)(c)

of the old Prevention of Corruption Act allegedly committed by a

Deputy Superintendent of Police. The Supreme Court held that

the investigation conducted by the Inspector of Police, Crime

Branch, C.I.D., was not vitiated merely because he was not

higher in rank to the Deputy Superintendent of Police.

54. The first proviso to Section 17 of the Act states that,

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 under the Act (See State

v. S.Bangarappa : AIR 2001 SC 222). Therefore, 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.

55. 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. But,

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. While exercising power of judicial review the court is

more concerned with the decision making process than the merit

of the decision itself. Judicial review is not much concerned with

the merits of the decision but how the decision was reached. A

mere wrong decision, without anything more, in most of the

cases will not be sufficient to attract the power of judicial review.

The court will be slow to interfere with administrative decisions

unless the decision is tainted by any illegality, irrationality or

procedural impropriety. Proportionality, requires the Court to

judge whether action taken was really needed as well as whether

it was within the range of courses of action which could

reasonably be followed. Judicial review, as the words imply, is not

an appeal from a decision, but a review of the manner in which

the decision was made. These principles are well-settled by the

decisions of the Apex Court.

56. Ext.P1 order, when tested on the touch stone of the

principles mentioned above, does not call for any judicial review

by this Court. Having also found that the petitioner has no locus

standi to challenge Ext.P1 order, the writ petition is liable to be

dismissed.

Consequently, the writ petition is dismissed. No costs.

(sd/-)

R.NARAYANA PISHARADI, JUDGE


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