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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