Retreat Centre Vs. State of Kerala & Ors.  INSC 414 (11 March 2008)
S.H. KAPADIA & B. SUDERSHAN REDDY (Arising out of S.L.P. (Crl.) No. 2234 of 2007) B. SUDERSHAN REDDY, J.
1. Leave granted.
2. What is the scope, content and ambit of the inherent power conferred on
the High Court under Section 482 of the Code of Criminal Procedure, 1973 (for
short, the Code) is the central question that falls for our
consideration in this appeal.
3. The relevant facts, giving rise to this appeal, have been set out in the
impugned judgment of the High Court but they have to be recapitulated in order
to enable us to give our reasons for the findings which we will be arriving at
on the interpretation.
4. This appeal by grant of special leave is directed by Divine Retreat
Centre assailing the judgment and order dated 10.3.2006 of the High Court of
Kerala rendered in Criminal M.C. No. 405 of 2006, directing investigation of
Crime No. 381 of 2005 of Koratty Police Station to be taken away from the
Investigating Officer and entrusting the same to a Special Investigation Team
headed by Vinson M. Paul, I.P.S. Inspector General of Police, presently working
as Managing Director of Kerala Police Housing Construction Corporation,
Thiruvananthapuram. The High Court also directed the same authority to
investigate/inquire into various other allegations leveled in an anonymous
petition filed against Divine Retreat Centre. The impugned judgment and order
arises out of the proceedings suo motu initiated by the Court on the basis of
anonymous petition addressed to Justice Padmanabhan Nair.
5. The tell-tale facts disclosed from the record may have to be noted in
some detail. One Mini Varghese, a female remand prisoner, sent a petition to
the District Judge, Kozhikode, inter alia, alleging that while she was taking
shelter in Divine Retreat Centre she had been subjected to molestation and
exploitation and became pregnant from Father Jose Thadathil (later identified
as Father Mathew Thadathil). When she came out of Centre to attend her sisters
marriage she was implicated in a false theft case and lodged in the jail.
6. The District Judge having received the petition on 28.7.2005 forwarded
the same to the concerned Magistrate on 9.8.2005 to do the needful. The
Judicial Magistrate First Class, Koyilandi recorded the statement of the victim
on 11.8.2005 and thereafter the matter was transferred to the Judicial
Magistrate First Class, Chalakuddy. The learned Magistrate having received the
records ordered investigation.
A case was registered in Crime No. 381 of 2005 under Section 376(g) I.P.C.
at Koratty Police Station.
7. For whatever reasons, the District Judge sent a copy of the petition
received by him to the Registrar of Kerala High Court which was placed before
Thankappan, J. who in turn directed complaint to be forwarded to the
Superintendent of Police, Thrissur to cause an inquiry and if necessary to
register a case and report to the Court. The Superintendent of Police as well
as the Circle Inspector of Police (Investigating Officer) submitted their
reports duly informing the Registry that a case has already been registered and
was being investigated.
8. On 28.10.2005, 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. They did not reportedly collect the
details of calls to the mobile phone seized from the lady, which would have
given some clue regarding the alleged connection.
Nor did they attempt a DNA test. The lady had complained to me that she is
afraid to come out of the jail on bail as she is under threat. I do not know
what is the present stage of the investigation.
9. The matter was accordingly placed before Padmanabhan Nair, J. by the
Registry who in turn directed the matter to be placed before the Registrar
General for necessary action by his endorsement dated 21.12.2005.
10. The matter was accordingly placed before Padmanabhan Nair, J. on
24.1.2006 by the Registry in the following manner:
Shri Thomas P. Joseph, District Judge, Kozhikode has sent a
communication dated 28.10.2005, enclosing a complaint addressed to the
Honble Mr. Justice K. Padmanabhan Nair. The communication of the learned
District Judge and the complaint are self- explanatory.
If any steps are to be taken with regard to the matter may kindly be
indicated. The learned judge on the same day made the following
Please verify and report whether the FPR Mini Varghese had sent any
petition to this Court and if so what action was taken on that petition?
Thereafter the Registry re-submitted the whole file before Padmanabhan Nair, J
It appears that Smt. Mini Varghese, FRP 287, District Jail, Kozhikode
had sent a complaint to the Honble High Court, narrating her agonies. The
matter was placed before the Honble Mr. Justice K. Thankappan, since His
Lordship was dealing with the petitions sent from jail. As per the order of the
Honble Judge, the petition was sent to the Superintendent of Police,
Thrissur for an enquiry and if found necessary, to register a case. It was also
directed that the Superintendent of Police would file a report before this
Court within a reasonable time.
Presumably, in pursuance of the said direction, it appears that Crime No.
381/2005 under Sec. 376(g) of the IPC was registered in the Koratty Police
Station on 31.08.2005.
When the above matter was reported to this Court, the Honble Judge, as
per His Lordships order dated 22.12.2005 directed that the matter be
The entire file is submitted. On re-submission of the file, the learned
judge passed the following order on 8.2.2006 thus:
I have carefully gone through Anonymous petition and the 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 Honble 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 21-11-05. The Registry had noted that the file was already put up to
KT(J) and the petition was to be incorporated in the file.
In the above said the FPR 287 had raised serious allegation regarding the investigation.
It is stated that two police men went to the jail but they did not make
enquiry regarding her allegation of rape alleged against the priest.
Even though there is an order to close the file Crl.PP 57929/05. I am of the
view that subsequent petition ought to have treated a separate petition praying
for an order for proper investigation and separate action taken.
I am of the view that petition can also be clubbed with the anonymous
A perusal of the anonymous petition dated 26- 10-05 shows it contains
serious allegation. So it is only just and proper the matter is taken on the
judicial side especially in view of the allegation of involvement of senior IAS
and IPS officers.
So there will be direction to the Registry to treat the anonymous petition
alongwith petition of FPR 287 received in the court on 21-11-05 as petitions
praying for an order for proper investigation and Register as a suo motu Crl.
Misc. Case. Serve a copy of the above stated petition to the Director General
of Prosecution. The copies of the documents except the CDs may also be given to
Keep the CD under safe custody for the time being till a decision is taken
in the matter.
Register the Crl. Misc. Case and post for admission.
11. Be it noted that the complaint/Petition dated 27.10.2005 received from
Mini Varghese by the Registry on 21.11.2005 was placed in the same file based
on which Thankappan, J initially ordered an inquiry. Thereafter the entire
matter was placed before Thankappan, J on 22.12.2005 itself and the learned
Judge directed the closure of the matter thus: No further probe is
necessary. Close the file. This fact was also brought to the notice of
Padmanabhan Nair, J.
12. However, the learned Judge was of the view that the subsequent petition
sent by Mini Varghese dated 27.10.2005 ought to have been treated as a separate
petition praying for an order for proper investigation. The learned Judge was
also of the view that the said petition was required to be clubbed with the
13. The Registry in compliance with the directions so issued by the learned
judge promptly registered a case in Criminal M.C. No. 405 of 2006 under Section
482 of 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.
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 Constitution of India. On merits, the
learned senior counsel submitted that neither the complaint of the victim nor
the anonymous petition discloses any irregularity in the matter of investigation.
The directions issued by the learned Judge are inquisitorial in nature and
sweeping in their width and amplitude directing the Special Investigation Team
(SIT) to find out as to whether the appellant committed any crime and if so to
investigate into such crime. Such a course is impermissible in law.
15. Shri P.P. Rao, learned senior counsel appearing on behalf of the
respondents supported the impugned order. It was submitted that there are no
limits imposed in the matter of exercise of jurisdiction under Section 482 of
the Code so long as the directions do not run counter to statutory provisions.
It was alternatively contended that if for any reason the impugned order is not
traceable to Section 482 of the Code the same could be considered as the one passed
by the High Court under Article 226 of the Constitution of India.
It was also submitted that the appellant has no locus to challenge the
impugned order inasmuch as it is not an accused in any criminal case. It was
also contended that even the accused in a criminal case has no right of hearing
until filing of a report under Section 173 of the Code.
NATURE OF JURISDICTION UNDER SECTION 482 OF CODE QUA THE REGISTRATION OF A
CRIME AND INVESTIGATION:
16. The well defined and demarcated functions in the field of crime
detection by the police and its subsequent adjudication by the Courts is so
well known and had been The Privy Council observed that just as it is essential
that every one accused of a crime should have free access to a Court of justice
so that he may be duly acquitted if found not guilty of the offence with which
he is charged, so it is of the utmost importance that the judiciary should not
interfere with the police in matters which are within their province and into
which the law imposes upon them the duty of enquiry. It is held:
In India as has been shown there is a statutory right on the part of
the police to investigate the circumstances of an alleged cognizable crime
without requiring any authority from the judicial authorities, and it would, as
their Lordships think, be an unfortunate result if it should be held possible
to interfere with those 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 Courts 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) this Court took
the view that there is no mention of any power to stop an investigation by the
police. The power of the police to investigate any cognizable offence is
uncontrolled by the Magistrate, and it is only in cases where the police decide
not to investigate the case, the Magistrate can intervene and either direct an
investigation, or, in the alternative, himself proceed or depute a Magistrate
subordinate to him to proceed to enquire into the case. The power of the
police to investigate has been made independent of any control by the
Magistrate. It is further held:
though the Code of Criminal Procedure gives to the police unfettered
power to investigate all cases where they suspect that a cognizable offence has
been committed, in appropriate cases an aggrieved person can always seek a
remedy by invoking the power of the High Court under Article 226 of the
Constitution under which, if the High Court could be convinced that the power
of investigation has been exercised by a police officer mala fide, the High
Court can always issue a writ of mandamus restraining the police officer from
misusing his legal powers. This position has been made further clear by
this Court in its J.A.C. Saldanha & ors. thus:
25. There is a clear-cut and well demarcated sphere of activity in the
field of crime detection and crime punishment. Investigation of an offence is
the field exclusively reserved for the executive through the police department
the superintendence over which vests in the State Government. The executive
which is charged with a duty to keep vigilance over law and order situation is
obliged to prevent crime and if an offence is alleged to have been committed it
is its bounden duty to investigate into the offence and bring the offender to
book. Once it investigates and finds an offence having been committed it is its
duty to collect evidence for the purpose of proving the offence. Once that is
completed and the investigating officer submits report to the Court requesting
the Court to take cognizance of the offence under Section 190 of the Code its
duty comes to an end. On a cognizance of the offence being taken by the Court
the police function of investigation comes to an end subject to the provision
contained in Section 173(8), there commences the adjudicatory function of the
judiciary 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 pp26. 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 &
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 report finding
the allegations substantiated. It is also open to the investigating agency to
submit a report finding no material to support the allegations made in the
first information report. It is open to the Magistrate concerned to accept the
report or to order further enquiry. But what is clear is that the Magistrate
cannot direct the investigating agency to submit a report that is in accord
with his views. Even in a case where a report is submitted by the investigating
agency finding that no case is made out for prosecution, it is open to the
Magistrate to disagree with the report and to take cognizance, but what he
cannot do is to direct the investigating agency to submit a report to the
effect that the allegations have been supported by the material collected
during the course of investigation. Court reiterated the principle that
the police has statutory right to investigate into the circumstances of any
alleged cognizable offence without authority from a Magistrate and that power
of the police to investigate cannot be interfered with by the exercise of power
under the inherent power of the Anr. Etc. , this Court while explaining the
nature and purport of the inherent jurisdiction of the High Court observed that
in exercising jurisdiction under Section 561-A of the Criminal Procedure Code,
1898, the High Court can quash proceedings if there is no legal evidence or if
there is any impediment to the institution or continuance of proceedings but
the High Court does not ordinarily enquire as to whether the evidence is
reliable or not. Where again, investigation into the circumstances of
an alleged cognizable offence is carried on under the provisions of the
Criminal Procedure Code the High Court dos not interfere with such
investigation because it would then be the impeding investigation and
jurisdiction of statutory authorities to exercise power in accordance with the
provisions of the Code of Criminal Procedure.
Bengal & Anr. this Court held that:
The police authorities have under Sections 154 and 156 of the Code a
statutory right to investigate into a cognizable offence without requiring any
sanction from a judicial authority and even the High Court has no inherent
power under Section 561-A of the Code to interfere with the exercise of that
statutory power. 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 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
23. Chandrachud, J. (as His Lordship then was), in considering the nature of
jurisdiction conferred upon the High Court under Section 482 of the Code
It ought to be realised that inherent powers do not confer an arbitrary
jurisdiction on the High Court to act according to whim or caprice. That
statutory power has to be exercised sparingly, with circumspection and in the
rarest of rare cases.
24. Shri P.P. Rao, learned Senior Counsel contended that in the instant case
the High Court properly exercised its inherent power in entertaining the
grievance of victim alleging bias on the part of the Investigating Officer
which is also one of the allegations made in the anonymous complaint. The
submission was that the power available to the High Court under Section 482 of
the Code is so wide and cannot be subjected to any limitation, except in cases
where there is a specific provision in the Code to provide adequate remedies to
the aggrieved person. The inherent power is co-extensive with the text of the
Code and it can be exercised in respect of any of the matters covered by the
Code, be it investigation, inquiry or trial. The learned counsel in support of
the submissions relied L. Muniswamy & Ors. , Central Bureau of
25. In Muniswamy (supra) the learned Sessions Judge refused to discharge the
accused therein and proceeded for framing specific charges as made out from the
material on record against the accused persons. The High Court of Karnataka in
the exercise of its inherent power quashed the proceedings initiated by the
State of Karnataka and accordingly discharged the accused. The High Court as
well as this Court found that there was no material on the record on which any
court could reasonably convict the accused for any offence. It is under those
circumstances this Court came to the conclusion that it would be a sheer waste
of public time and money to permit the proceedings to continue against the
accused. In that regard this Court observed:
The saving of the High Courts 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
(iii) However, the power under Section 482 Cr.P.C. is not unlimited. It can
inter alia be exercised where the Code is silent, where the power of the court
is not treated as exhaustive, or there is a specific provision in the Code; or
the statute does not fall within the purview of the Code because it involves
application of a special law. It acts ex debito justitiae. It can, thus, do
real and substantial justice for which alone it exists.
28. In our view, none of the decisions upon which reliance has been placed lend
any support to the submissions made by the learned counsel on behalf of the
respondents. On the other hand, in Popular Muthiah (supra) this Court held that
the High Court was not correct in issuing direction to take advice of the State
Public Prosecutor as to under what section the appellant therein has to be
charged and tried and directing CB,CID to take up the matter and reinvestigate
and prosecute the appellant therein. Such a power does not come within the
purview of Section 482 of the Code of Criminal Procedure. 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. This Court further held that the High Court cannot issue
directions to investigate the case from a particular angle or by a particular
29. The question that arises for our consideration is whether the contents
of the petition submitted by the victim and as well as the allegations made in
the anonymous complaint reveal any cause for issuing directions relieving the
Investigating Officer of his statutory power and duty to investigate Crime No.
381 of 2005 under Section 376(g) of the Indian Penal Code?
30. The allegations in the anonymous complaint are in two parts. The first
part relates to Crime No. 381 of 2005 wherein it is alleged that investigation
in crime has been put to cold storage due to influence exerted at high
places. This is required to be considered along with the petition sent by
the victim herself making certain allegations against the police in general.
The allegations are against two police constables that they have tortured her
mentally in connection with the investigation of the case. She complained that
truth will never come out if the case is entrusted to the police for
She prayed for a confidential investigation. Neither the anonymous
petition nor the complaint 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 submitted to this Court. The facts gathered by the
Investigating Officer about the victim were part of the result of India [(2007)
1 SCC 110] upon analysis of the relevant provisions of the Code held that after
completion of the investigation if it appears to the Investigating Officer that
there is no sufficient evidence, he may decide to release the suspected
accused. If, it appears to him that there is sufficient evidence or reasonable ground
to place the accused on trial, he has to take necessary steps under Section 170
of the Code. In either case, on completion of the investigation he has to
submit a report to the Magistrate under Section 173 of the Code in the
prescribed form who is required to consider the report judicially for taking
appropriate action thereof. We do not propose to deal with the options
available in law to the Magistrate and even to a victim or informant as the
case may be.
33. The sum and substance of the above deliberation and analysis of the law
cited leads us to an irresistible conclusion that the investigation of an
offence is the field exclusively reserved for the police officers whose powers
in that field are unfettered so long as the power to investigate into the
cognizable offences is legitimately exercised in strict compliance with the
provisions under Chapter XII of the Code.
However, we may hasten to add that unfettered discretion does not mean any
unaccountable or unlimited discretion and act according to ones own
choice. The power to investigate must be exercised strictly on the condition of
which that power is granted by the Code itself.
34. 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 investigate into a crime on whatsoever basis and more
particularly on the basis of complaints or anonymous petitions addressed to a
named Judge. Such communications cannot be converted into suo motu proceedings
for setting the law in motion. Neither the accused nor the complainant or
informant are entitled to choose their own investigating agency to investigate
a crime in which they may be interested.
35. It is altogether a different matter that the High Court in exercise of
its power under Article 226 of the Constitution of India can always issue
appropriate 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 informants 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 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 enquire into the complaint as provided in Chapter XV of the Code. In case
the Magistrate after recording evidence finds a prima facie case, instead of
issuing process to the accused, he is empowered to direct the police concerned
to investigate into offence under Chapter XII of the Code and to submit a
report. If he finds that the complaint does not disclose any offence to take
further action, he is empowered to dismiss the complaint under Section 203 of
the Code. In case he finds that the complaint/evidence recorded prima facie
discloses an offence, he is empowered to take cognizance of the offence and
would issue process to the accused. These aspects have been highlighted by this
Court in All India Institute of Medical Sciences Employees Union (Regd.)
V. Union of India . It was specifically observed that a writ petition in such
cases is not to be entertained. WHETHER THE HIGH COURT WAS JUSTIFIED IN
ENTERTAINING ANONYMOUS PETITION?
37. The second part of the anonymous letter relates to allegations that: (a)
in the past two years number of unidentified dead bodies were found on the
National Highway and the railway track situated near to the Retreat Centre; (b)
there is a practice of burying the dead bodies in the public burial ground
without following any procedure; (c) recently the dead body of a lady aged
about 30 years was entrusted with one Karyavelu for burying the dead body in
the burial ground.
When the dead body was taken for burial, Karyavelu noticed number of
injuries on that dead body. He is alleged to have informed the Priest of the
Divine Centre that henceforth he will not undertake any burial of such bodies.
It is alleged that Karyavelu himself died in the suspicious circumstances and a
case was registered under the caption unnatural death; (d) there is a
gang in the retreat centre and one Sr. Teresa and two helpers were helping the
gang to carry on anti-social activities. It is alleged that the leader of the
gang is Rev.
Father Mathew Thadathil. Sibi was his right hand person who also died under
the mysterious circumstances.
38. One of the documents enclosed to the anonymous petition is a magazine by
name Divine Voice published by the appellant. In one of the volumes
published in June, 2005 the names of senior I.A.S and I.P.S officers were
mentioned as the members of the Advisory Board; one such named officer is
stated to have decided some 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
(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
(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 issued
appropriate directions to the Government, the Director General of Police and
all other departments of the Government to cooperate and render necessary
assistance to the Special Investigation Team.
40. On a careful perusal of the order passed by the learned Judge, we find
that the learned Judge initiated suo motu proceedings without even examining as
to whether the contents of the anonymous letter and material sent along with it
disclosed any prima facie case for ordering an investigation.
The question is: 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? Whether such directions could have been issued by the High
Court even in exercise of its jurisdiction under Article 226 of the
Constitution of India?
41. In Secretary, Minor Irrigation & Rural Engineering this Court took
the view that a decision to direct an enquiry against a person can only be done
if the High Court after considering the material on record comes to a
conclusion that such material does disclose a prima facie case calling for an
investigation by an Investigating Agency, and the same cannot be done as a
matter of routine or merely because a party makes some such allegations. This
Court relying upon its Union of India & ors. held that a direction for
investigation can be given only if an offence is, prima facie, found to have
been committed or a persons involvement is prima facie established, but a
direction to investigate whether any person has committed an offence or not
cannot be legally given.
42. Just to point out that there is no prima facie finding by the High Court
while directing an investigation by the impugned order, we would like to quote
the following few sentences:
7. As I have already stated there are various other allegations leveled
against the Retreat Centre. One of the documents produced in a magazine the
front page of a publication by name Divine Voice published by the
Divine Retreat Centre at Muringoor. It is captioned as a spiritual congregation
of the Government Officials. In the 9th volume 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
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 a number of deaths took place under mysterious circumstances in
and around the Retreat Centre. There is allegation of receipt of foreign money
without proper authority. It is also necessary to enquire into the allegation
that the Centre is getting foreign aid in violation of Foreign Exchange Law and
take appropriate action in accordance with law if any violation is established.
In view of the allegation that Senior I.A.S. and I.P.S. Officers, are
associated with the functioning of the Retreat Centre, and because of the
allegations leveled against the Investigating Officer, I am of the view that it
is only just and proper that the investigation of Crime No. 381 of 2005 is
taken away from the present Investigation Officer which is entrusted with a
Senior Police Officer below the rank of Inspector General of Police. It is also
necessary to see that the person who is appointed is having some knowledge
about the working of the Retreat Centre.
10. The Special Investigation Team shall also enquire into the allegation of
unnatural deaths stated in the petition. The team shall enquire as to whether a
person by name Karyavelu worked in the burial ground and whether he died under
mysterious circumstances. In any case was registered in connection with the
death of Karyavelu the present stage of that investigation shall be verified
and appropriate action taken. The Team shall also enquire whether there was a
person by name Raju attached to the Retreat Centre and whether he died under
suspicious circumstances. In case the team gets information regarding any
cognizable offences, those matters shall also be investigated in accordance
with law. From the above, we find that the High Court has merely quoted
certain allegations made against the appellant and others and proceeded on the
basis of those allegations made in the anonymous petition without forming any
prima facie opinion with regard to those allegations.
43. It is evident from Sections 154, 156 and 157 of the Code that even a
police officer can act on the basis of information received or otherwise and
proceed to investigate provided he has reason to suspect the commission of a
cognizable offence which he is empowered to investigate under Section 156
Cr.P.C. If the essential requirements of the penal provisions are not prima
facie disclosed by a First Information Report and the police officer has no
reason to suspect 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 the accused
is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant
is not an accused and, therefore, it was not entitled for any notice from the
High Court before passing of the impugned order. We are concerned with the
question as to whether the High Court could have passed a judicial order
directing investigation against the appellant and its activities without
providing an opportunity of being heard to it. The case on hand is a case where
the criminal law is directed to be set in motion on the basis of the
allegations made in anonymous petition filed in the High Court. No judicial
order can ever be passed by any court without providing a reasonable
opportunity of being heard to the person likely to be affected by such order
and particularly when such order results in drastic consequences of affecting
ones own reputation. In our view, the impugned order of the High Court
directing enquiry and investigation into allegations in respect of which not
even any complaint/information has been lodged with the police is violative of
principles of natural justice.
45. It is unnecessary to go into the question as to whether Divine Retreat
Centre is not a person contemplated by Article 21 of the Constitution
and express any opinion as to whether any right guaranteed by Article 21 of the
Constitution has been infringed. Suffice it to note that, the Director of the
appellant institution has been impleaded as a party respondent in the criminal
petition and the whole of the allegations in the anonymous petition are leveled
against the appellant and in such a situation it was imperative for the High
Court to put the appellant on notice before passing the impugned order.
The appellant undoubtedly is aggrieved by the impugned order and, therefore,
entitled to invoke the jurisdiction of this Court under Article 136 of the
Constitution down the law that hearing to the accused is provided by the Code
under specified circumstances are not relevant to decide the issue of locus in
cases where challenge is to a judicial order under which institutions and/or
persons connected therewith are subjected to inquiry and investigation.
46. Here is a case where no information has been given to the police by any
informant alleging commission of any cognizable 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 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 there is special procedure prescribed which
procedure is mandatory. This Court took the view that if the court finds that
the appellant could not invoke its jurisdiction under Article 226, the court
can certainly treat the petition as one under Article 227 or Section 482 of the
Code. The observations were made in the context of correcting grave errors that
might be committed by the subordinate courts. The decision does not lay down
any law that the High Court in exercise of its power under Section 482 of the
Code or Article 227 may be resorted to constitute any special Investigating
Agency to investigate into allegations made for the first time in an anonymous
48. In our view, the whole of public law remedies available under Article
226 of the Constitution of India and the constituent power to issue writs in
50. pre of mandamus, certiorari, prohibition and co- warranto are neither
echoed nor transplanted into Section 482. May be both the powers to issue writs
and pass appropriate orders under Section 482 of the Code are conferred upon
the High Court but they undoubtedly operate in different fields.
WHETHER THE ANONYMOUS PETITION IS TO BE TREATED AS PUBLIC INTEREST
49. The question that falls for our consideration is whether the anonymous
letter sent in the name of a Judge can be entertained as Public Interest
Litigation? It is well settled that a public interest litigation can be
entertained by the Constitutional Courts only at the instance of a bona fide
litigant. The author of the letter in this case is anonymous, there is no way
to verify his bonafides and in fact no effort was made by the Court to verify
about the authenticity, truth or otherwise of the contents of the petition. It
is not the case of the appellant that no Writ Petition under Article 226 of the
Constitution of India can be entertained on the strength of a letter addressed
by a bona fide litigant to the High Court. This accepted a letter written to
the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi
complaining of State of U.P. , this Court entertained letter sent by the two
Professors of Delhi University seeking enforcement of the constitutional right
of the inmates in a Protective Home, at Agra who were living in inhuman and
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 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 personal gain or private profit or of the political motivation or other
oblique consideration. The Court should not allow itself to be activised at the
instance of such person and must reject his application at the threshold,
whether it be in the form of a letter addressed to the court or even in the
form of a regular India & ors. , this Court in clear and unequivocal terms
observed that it would be prudent for the constitutional courts to confine
this strategic exercise of jurisdiction to cases where legal wrong or legal
injury is caused to a determinate class or group of persons or the
constitutional or legal right of such determinate class or group of persons is
violated and as far as possible, not entertain cases of individual wrong or
injury at the instance of a third party, where there is an effective legal- aid
organization which can take care of such cases.
50. The law in this regard is summarized in Janata It is thus clear
that only a person acting bona fide and having sufficient interest in the
proceeding of PIL will alone have a locus standi and can approach the Court to
wipe out the tears of the poor and needy, suffering from violation of their fundamental
rights, but not a person for personal gain or private profit or political
motive or any oblique consideration.
Similarly, a vexatious petition under the colour of PIL brought before the
Court for vindicating any personal grievance, deserves rejection at the
threshold. Maharashtra & ors. this Court observed:
The attractive brand name of public interest litigation should not be
used for suspicious products of mischief. It should be aimed at redressal of
genuine public wrong or public injury and not be publicity-oriented or founded
on personal vendetta. As indicated above, court must be careful to see that a
body of persons or member of the public, who approaches the court is acting
bona fide and not for personal gain or private motive or political motivation
or other oblique considerations. The Court must not allow its process to be
abused for oblique considerations by masked phantoms who monitor at times from
behind. Some persons with vested interest indulge in the pastime of meddling
with judicial process either by force of habit or from improper motives, and
try 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. 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 communication addressed to the court or to a Judge of the court on behalf
of the court.
53. How to verify the credentials, character or standing of the informant
who does not disclose his identity? In the instant case, there is no whisper in
the order passed by the High Court about any attempts made to verify the credentials,
character or standing of the informant. Obviously, the High Court could not
have verified the same since the petition received by it is an unsigned one.
ors. (supra), this Court visualized grave danger inherent in a practice
where a mere letter is entertained as a petition from a person whose
antecedents and status are unknown or so uncertain that no sense of
responsibility can, without anything more, be attributed to the communication.
It has been observed that the document petitioning the court for relief should
be supported by satisfactory verification. This requirement is all the greater
where petitions are received by the Court through the post. It is never beyond
the bound of possibility that an unverified communication received through the
post by the Court may in fact have been employed mala fide, as an instrument of
coercion or blackmail or other oblique motive against a person named therein
who holds a position of honour and respect in society. The Court must be ever
vigilant against the abuse of its process. It cannot do that better in the
matter than insisting at the earliest stage, and before issuing notice to the
respondent, that an appropriate verification of the allegations be supplied.
55. 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.
56. In such view of the matter the suo motu action initiated cannot be
treated as the one in public interest litigation.
THE IMPORTANCE OF ROSTER:
57. It is clear from the record that the learned Judge was not dealing with
any public interest litigation cases as on the date of entertaining anonymous
petition. It is beyond pale of any doubt and controversy that the
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. (See State of
58. This Court in more than one case expressed its reservation about
individual judges entertaining the communications and petitions addressed to
them to pass 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 conception of the Court as a loose
aggregate of individual Judges, to one or more of whom judicial access may be
particularly had, undermines its very existence and endangers its proper and
59. In our view, the learned judge ought not to have entertained the
anonymous petition, contents of which remain unverified and made it basis for
setting the law in motion as against the appellant as he was not entrusted with
the judicial duty of disposing of PIL matters.
60. Institutions own reputation is a priceless treasure.
History teaches us that the independence of the judiciary is jeopardized
when courts become embroiled in the passions of the day and assume primary
responsibility to resolve the issues which are otherwise not entrusted to it by
adopting procedures which are otherwise not known.
61. There is heavy duty cast upon the constitutional courts to protect
themselves from the onslaught unleashed by unscrupulous litigants masquerading
as Public Interest Litigants. The individual judges ought not to entertain
communications and letters personally addressed to them and initiate action on
the judicial side based on such communication so as to avoid embarrassment;
that all communications and petitions invoking the jurisdiction of the court
must be addressed to the entire Court, that is to say, the Chief Justice and
his companion Judges. The individual letters, if any, addressed to a particular
judge are required to be placed before the Chief Justice for consideration as
to the proposed action on such petitions. Each Judge cannot decide for himself
as to what communication should be entertained for setting the law in motion be
it in PIL or in any jurisdiction.
62. It is needless to say that none of these aspects have been taken into
consideration by the High Court before setting the criminal law in motion as
against the appellant. The sweeping directions issued by the Court are in the
nature of ordering an inquisition against the appellant and the persons
connected with it to find out as to whether they have committed any cognizable
offence. Such a course is impermissible in law.
63. For the aforesaid reasons, directions issued by the High Court
constituting the Special Investigation Team to investigate into the allegations
made in anonymous petition are set aside.
64. However, the fact remains that the Circle Inspector of Police,
Chalakuddy 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 ones 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 victims
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 Inspector of Police, Chalakuddy (Investigating
Officer) within two 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.
66. We make it clear that we have not expressed any opinion whatsoever on
the merits of the case.
67. Subject to the above directions the impugned order of the High Court is
set aside. The appeal is accordingly allowed.
68. Since the question is one of general importance, we would direct the
copies of this judgment should be sent to the High Courts in all the States.
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