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TMI Blog2008 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. The learned Judge was also of the view that the said petition was required to be clubbed with the anonymous petition. HELD THAT:- The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the court possessed before the enactment of the Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. Can investigation be ordered by the High Court in exercise of its inherent jurisdiction under Section 482 of the Code based on such vague and indefinite allegations made in unsigned petition without even arriving at any prima facie conclusion that the contents thereof reveal commission of any cognizable offence - In our view, the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court could not have verified the same since the petition received by it is an unsigned one. In our view, the Public Interest Litigant must disclose his identity so as to enable the court to decide that the informant is not a wayfarer or officious intervener without any interest or concern. In such view of the matter the suo motu action initiated cannot be treated as the one in public interest litigation. Administrative control of the High Court vests in the Chief Justice of the High Court alone and it is his prerogative to distribute business of the High Court both judicial and administrative; that the Chief justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted; and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions; that the puisne judges cannot pick and choose any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. State of Rajasthan Vs. Prakash Chand Ors.[ 1997 (12) TMI 657 - SUPREME COURT] . In our view, the learned judge ought not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o weeks from the date of the receipt of copy of this order. Thereafter, the Investigating Officer shall submit appropriate report in accordance with the provisions of the Code within four weeks before the Magistrate who shall consider the report to be so filed judicially in accordance with law. We make it clear that we have not expressed any opinion whatsoever on the merits of the case - Subject to the above directions the impugned order of the High Court is set aside - Appeal is accordingly allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.10.2005, District Judge, Kozhikode, addressed a letter to the Registrar General, High Court of Kerala enclosing anonymous Petition dated 26.10.2005 received by him addressed to Justice K. Padmanabhan Nair. The Petition was accompanied by photocopies of certain press reports and three Video C.Ds. In his covering letter, the District Judge referred to the facts leading to the registration of Crime No. 381 of 2005 on the file of Koratty Police Station on 31.8.2005 under Section 376(g) I.P.C. and further stated: In the meantime, Smt. Mini Varghese delivered. The Local Police, while arresting her in connection with a theft case had seized a mobile phone from her. The police produced that mobile phone in the J.F.M.C., Koyilandy. That mobile phone was forwarded to the J.F.M. Chalakuddy for investigation as the concerned priest was said to have made several calls to the lady in that mobile phone. Later, I happened to see some press reports (I am enclosed the 3rd page of the N.I.E. dt. 13.10.05 which carried a report, DNA Test? Oh No) to the effect that the police is not properly investigating the case and instead, are more interested in tracing her antecedents and alleged bad character ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents endorsed along with. One of the documents enclosed alongwith the petition is a petition submitted by FPR 287, Mini Varghese raising an allegation of rape against the head of the Divine Centre Muringoor Rw. Fr. Mathew Thadathil. Of course in the petition she had given the name as Jose Thadthil but there is no room for any doubt regarding the identity of the person. It is seen that this court had forwarded the petition received from Smt. Mini Varghese to the Suptd. Of Police TCR for necessary action on 7-9-05. The Suptd. Of Police had filed a statement on 5-11-05 to the effect that a Crime as Case No.381 of 2005 at Koratthy Police Station u/s 376(g) of I.P. Code is registered and the same is being investigated by the C I of Police Chalakkudy. The CI of Chalakkudy had also submitted a similar statement on 31-10-05. It is seen that on 8-11-05 the report of the CI was brought to the notice of the Hon'ble Judge who was dealing with the petition received from jail. He passed an order on 22-12-05 to close the file. In the meanwhile another petition is seen received from the FPR 287. That petition was forwarded to this court on 11-11-05 and received in this court only on 21- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code in which the persons against whom accusations were made have been duly impleaded as the respondents. The matter was listed for admission in the court on 10.2.2006 and was adjourned to 15.2.2006 for serving a notice upon the learned Director General of Prosecution (Public Prosecutor). The learned Judge heard the matter and reserved the case for order. The impugned order was passed on 10.3.2006. SUBMISSIONS: 14. The validity of the said order is impugned in this appeal on various grounds. Shri Anil B. Divan, learned Senior Counsel appearing on behalf of the appellant submitted that the whole procedure adopted to entertain and initiate proceedings culminating in passing the impugned order suffers from incurable procedural and substantive infirmities rendering the order void. It was further contended that the impugned order suffers from lack of jurisdiction. The jurisdiction of the High Court under Section 482 of the Code is not available to order investigation into any case by the police. The learned senior counsel proceeded to contend that the directions issued by the High Court could not have been issued even in a public interest litigation under Article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus.In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. (emphasis supplied) 17. In S.N. Sharma Vs. Bipen Kumar Tiwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir Ahmad. "This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary." (emphasis is of ours) 18. The observations of this Court in M.C. Abraham & Anr.Vs. State of Maharashtra & ors. in this regard deserve to be noticed. In the said case it was held: "The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The Investigating agency may submit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code to interfere with the exercise of that statutory power." 21. In State of W.B. & Ors. Vs. Sujit Kumar Rana [ 2004) 4 SCC 129], this Court while dealing with the nature of inherent powers of the High Court held that the inherent power of the High Court is saved only where an order has been passed by the Criminal Court which is required to be set aside to secure the ends of justice or where the proceedings pending before a court amounts to abuse of the process of Court. The power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under the Code of Criminal Procedure. 22. In our view, there is nothing like unlimited arbitrary jurisdiction conferred on the High Court under Section 482 of the Code. The power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself. It is well settled that Section 482 does not confer any new power on the High Court but only saves the inherent power which the court possessed before the enactment of the Code. There are three circumstances under which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t observed: "The saving of the High Court inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution." 26. In Central Bureau of Investigation (supra) this Court cautioned that the inherent power should not be exercised to stifle a legitimate prosecution and the High Court should refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court. 27. In Popular Muthiah (supra) this Court summarized the law as to when the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. The law was stated in the following manner: "(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused. (ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor. (iii) However, the power under Section 482 Cr.P.C. is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made by the victim has been directed against the Investigating Officer complaining of any bias or any attempt on his part to destroy the available evidence. 31. Be it noted that Thankappan, J. vide order dated 22.12.2005 having perused the file including the petition submitted by the victim directed the matter to be closed as it required no further probe. 32. Be that as it may, Crime No. 381 of 2005 itself was registered pursuant to the order of the Magistrate under Section 156 (3) of the Code. We are unable to appreciate as to how the learned Judge could have ordered investigation by Special Investigation Team constituted by himself on the strength of such wild, imaginary and vague allegations. It is difficult to discern the basis for arriving at the conclusion that the entire attempt of the Investigating Officer was to exonerate the accused and make the complainant as accused. The investigation was in progress as is evident from the case diary. The Special Investigation Team also proceeded on the same lines as that of the Investigating Officer and similar observations as the one made by the Investigating Officer are to be found in the report of the Special Investigation Team ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code. 36 Even in cases where no action is taken by the police on the information given to them, the informant's remedy lies under Sections 190, 200 Cr. P.C., but a Writ Petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra & ors. held: "When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in favour of the appellant. The High Court in writ petition (c) No. 22543/05 made some observations to the effect that the said officer was really associated with the appellant centre, the order passed by that officer in favour of the appellant is a nullity. Thereafter the name of that officer was deleted from the names of persons of the Advisory Board. Based on such vague and indefinite allegations the High Court gave the following directions without even issuing notice to the appellant: (i) Government shall issue notification under Section 17 of the Prevention of Corruption Act conferring power to the Special Investigation Team constituted by the court to investigate the offences under the Prevention of Corruption Act; (ii) The Special Investigation Team shall also inquire into the allegations of foreign exchange violation; (iii) The Special Investigation Team shall also inquire into the allegations of unnatural deaths stated in the petition. 39. The Special Investigation Team was entrusted with power to investigate into any other cognizable offence in case the Team gets information about the commission of any such cognizable offence. The learned Judge accordingly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e published in June 2005, the names of a Senior I.A.S. Officer and a Senior I.P.S. Officer, were stated as the members of the Advisory Board. It is seen that a Writ Petition was filed against the Retreat Centre by an orphanage as W.P.(C) No. 22543 of 2005 before this Court in which a specific allegation of bias was raised against that I.A.S. Officer. It was alleged that she was associated with the running of the Divine Retreat Centre. This Court held that if she is really associated with the Retreat Centre, the order passed by the appellate authority in that case is nullity. Strangely enough from the next month onwards, the name of that officer was deleted from the list of names of persons in the Advisory Board. But still the name of a Senior I.P.S. Officer is stated as the member of the Advisory Board. It is necessary to investigate the role of Government Officials in the running of the Centre and whether any of such public servants have committed the offences punishable under the provisions of the P.C. Act and take appropriate action taken. Along with the complaint a number of documents and three CDs are enclosed. In the paper cuttings appended in the petition, it is alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect the commission of a cognizable offence, no investigation can be undertaken by him based on the information received or otherwise. Can the High Court set the law in motion against the named and unnamed individuals based on the information received by it without recording the reasons that the information received by it prima facie disclosed the commission of a cognizable offence. Setting Criminal Law in motion is fraught with serious consequences, which cannot lightly be undertaken by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India. In our view, the High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a Special Investigation Team on the strength of anonymous petitions. The High Courts cannot be converted into Station Houses. PRINCIPLES OF NATURAL JUSTICE: WHETHER THE APPELLANT HAS NO LOCUS? 44. The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble offence by the appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition is sent directly in the name of a learned judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code. The High Court ought not to have entertained such a petition for taking the same on file under Section 482 of the Code. 47. It was contended that nomenclature of the petition is not decisive. The High Court can exercise power suo motu either under Article 226 or under Section 482 Cr. P.C. or under both. It was submitted that if for any reason the petition entertained by the High Court is held not maintainable under Section 482 of the Code, the same can always be treated as the one filed under Article 226 of the Constitution of India. Reliance was placed upon the observations made by this Court in Pepsi Foods Vs. Special Judicial Magistrate . The decision in Pepsi Foods (supra) is an authority for the proposition that nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... degrading conditions. In Miss Veena Sethi V. State of Bihar , this Court treated letter addressed to a Judge of this Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President Vs. State of Assam & ors. upon which reliance has been placed by Shri P.P. Rao, this Court entertained a letter addressed by Shri Kuldip Nayar, an eminent journalist, in his capacity as President of Citizens for Democracy to one of the judges of this Court complaining of human rights violations of TADA detenues and the same was treated as a petition under Article 32 of the Constitution of the India. But in none of these cases, the Court entertained anonymous petition and converted the same into a Public Interest Litigation. We do not propose to burden this judgment with various authoritative pronouncements of this Court laying down the parameters of Public Interest Litigation. Suffice it to recapitulate that this Court uniformly and consistently held that the individual who moves the court for judicial redress in cases of Public Interest Litigation must be acting bone fide with a view to vindicating the cause of justice and not for any perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs. 52. In State of West Bengal & ors. Vs. Sampat Lal & Ors. , this Court administered a caution stating when communications complaining of violation of rights of the deprived and vulnerable sections of the community are sent to the court, care and caution should be adopted to ensure that the process of the court is not abused or misused. The Court should be prima facie satisfied that the information laid before it is of such a nature that it calls for examination and this prima facie satisfaction may be derived from the credentials of the informant, namely, what is the character or standing of the informant or from the nature of the information given by him, namely, whether it is vague and indefinite or contains specific allegations as a result of survey or investigation or from the gravity or seriousness of the complaint set out in the information or from any other circumstance or circumstances appearing from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aster of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted; and the puisne judges can only do that work as is allotted to them by the Chief Justice or under his directions; that the puisne judges cannot pick and choose any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice. (See State of Rajasthan Vs. Prakash Chand & Ors. ) 58. This Court in more than one case expressed its reservation about individual judges entertaining the communications and petitions addressed to them to pass orders on judicial side. In Bandhua Mukti Morcha Vs. Union of India & ors. , the Court in clear and unequivocal terms declared that communications and petitions addressed to a particular judge are improper and violate the institutional personality of the court. They also embarrass the Judge to whom they are personally addressed. The fundamental conception of the Court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The concept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... halakuddy having registered Crime No. 381 of 2005 made investigation in exercise of statutory power coupled with duty under the orders of learned Judicial First Class Magistrate, Chalakuddy. The learned Judge having entertained the petition/complaint from the victim ordered further investigation into the crime by the Special Investigation Team headed by the third respondent. The third respondent having completed the investigation arrived at certain conclusions but unnecessarily kept the matter pending on the ground that the paternity of the first child is to be verified with the accused and some other persons who were also found closely associated with the victim during the relevant period. This is beyond one's imagination as to how and why such an inquiry is required to be made. The First Information Report, material gathered during the investigation, contents of the victim's complaint and conclusions drawn by the Special Investigation Team themselves do not justify any such further enquiry. 65. In the circumstances of the case, we direct the third respondent to make available the material gathered during the course of investigation in Crime No. 381 of 2005 to the Circle Inspecto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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