2018 (10) TMI 1901 - HC - Indian Laws

Scope of the functions of the Director of the Vigilance and Anti Corruption Bureau (VACB) in Kerala - grant of promotion to four Senior Police Officers of IPS rank to the cadre of Director General of Police - design hatched by the then Home Minister with the involvement of the Chief Minister, to by pass some senior police officers who had a better claim for posting as Director of Vigilance, and the then Government was very particular to post the first respondent as Director of the VACB - HELD THAT - Investigation of corruption cases or cases under the P.C. Act must be seriously dealt with as a specialised area where high competence, caliber, integrity and honesty of the officers is required. In the investigation in corruption cases, the concept of participative supervision must be applied. This means that every investigation must be a team work, monitored and supervised by the superior officers. Crimes can be registered and investigation can be made under the P.C. Act only in cases where elements of corruption or misconduct are revealed or disclosed. If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant. The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector. Legislation is a sovereign function. Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. This Court hopes that in future, the Police Officers and also the officers of the VACB will follow the guidelines in the discharge of their official functions - Petition disposed off.

Summary

Issues Involved:
1. Challenge to the order of the Special Court (Vigilance) forwarding a complaint for preliminary enquiry and potential registration of a crime.
2. Scope and extent of High Court's jurisdiction under Article 227 of the Constitution of India.
3. Legality and propriety of the promotion of police officers and the posting of the Director of the VACB.
4. Abuse of police powers under the Prevention of Corruption Act (PC Act).
5. Necessity and formulation of guidelines for the VACB and Police Department.
6. The role of the VACB in administrative and policy decisions of the Government.
7. Introduction and implications of the Prevention of Corruption (Amendment) Act, 2018.

Detailed Analysis:

1. Challenge to the Order of the Special Court (Vigilance):
The petitioner challenged the order dated 30.12.2016 from the Special Court (Vigilance), Thiruvananthapuram, which forwarded a complaint to the Director of the VACB for preliminary enquiry and possible crime registration. The complaint alleged nepotism and corruption in the promotion of four Senior Police Officers to the cadre of Director General of Police, based on a cabinet decision. The petitioner, a former Home Minister, was the third respondent in the complaint.

2. Scope and Extent of High Court's Jurisdiction under Article 227:
The High Court's jurisdiction under Article 227 allows it to interfere and correct jurisdictional errors by subordinate courts and tribunals. The High Court can set aside orders passed without jurisdiction or on wrong exercise of jurisdiction, as established in the case of "State through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and others."

3. Legality and Propriety of the Promotion and Posting:
The court noted that the promotion of four police officers was a collective decision by the former Government, maintained by the successor Government. The complainant's selective targeting of one promotee indicated a mala fide intent. The court emphasized that promotion decisions are a prerogative of the Government and should be challenged before competent judicial forums, not through investigations under the PC Act.

4. Abuse of Police Powers under the PC Act:
The court highlighted instances where police powers under the PC Act were misused, leading to unnecessary or baseless investigations. It stressed that loss to public revenue alone cannot justify prosecution under the PC Act. The court underscored the necessity of preventing investigative excess and harassment of public servants.

5. Necessity and Formulation of Guidelines for the VACB and Police Department:
The court observed the need for guidelines to prevent mechanical forwarding of complaints and baseless investigations. It directed the Government to consider legislation to prevent vexatious litigations and criminal prosecutions. The court also urged the VACB and Police to differentiate between genuine complaints and those brought for personal gain or publicity.

6. Role of the VACB in Administrative and Policy Decisions:
The court clarified that administrative and policy decisions of the Government cannot be subjected to investigation under the PC Act unless they involve individual corruption or criminal misconduct. It criticized the VACB for overstepping its authority by questioning the Government's promotion decisions and making recommendations.

7. Introduction and Implications of the Prevention of Corruption (Amendment) Act, 2018:
The court discussed the significant changes brought by the 2018 amendment to the PC Act, including the redefinition of "undue advantage" and the introduction of Section 17A, which protects public servants from baseless prosecutions related to their official functions. The amendment aims to prevent hasty or indiscreet prosecutions and ensure that only genuine cases of corruption are pursued.

Conclusion:
The High Court set aside the impugned order of the Special Court (Vigilance) and rejected the complaint brought by the second respondent, finding it baseless and malicious. The court provided guidelines for the VACB and Police Department to prevent misuse of the PC Act and ensure that investigations are conducted only in genuine cases of corruption. The judgment emphasized the need for legislative measures to prevent vexatious litigations and protect public servants from undue harassment.