# ) v. STATE OF KERALA & ORS

- **Citation:** [2008] 4 S.C.R. 701
- **Court:** Supreme Court of India
- **Decided:** 2008-03-11
- **Case number:** Criminal Appeal E No. 472 of 2008
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-state-of-kerala-ors-24468
- **Pages:** 44

## Headnote

l J
[2008] 4 S.C.R. 701
DIVINE RETREAT CENTRE
A
).
v.
STATE OF KERALA & ORS.
(Criminal Appeal No. 472 of 200.8)
MARCH 11, 2008
B
. [S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.)
..
Jurisdiction:
~
Jurisdiction of High Court- Qua registration of crime and c
investigation -Anonymous petition to High Court, addressed
to a named Judge - AHeging commission of crime against a
particular victim and allegations in general made against an
institution - Initiation. of proceedings Suo motu - Further
withdrawing the investigation of the case in re$pect of the
particular victim from the Investigating Officer and entrusting D
the same to Special Investigation Team - Direction to Special
~
!fJvestigation Team also to investigate in respect of general
. allegations wherefor no complaint lodged - On appeal, held:
High Court in exercise of its jurisdiction either u/s 482 Cr. P. C.
or under ArtiC/e 226 of Constitution, cannot direct investigation
E
by' constituting a Special Investigation Team on the strength
of wild_ a/legations in anonymous petitions without forming any
prima facie opinion in respect of those a/legations - Direction
of investigation into a/legations in respect of which no
complaint lodged, is violative of principles of natural justice -
F
..
Neither of the parties entitled to choose their own investigating
.,
agency ..... The power to investigate must be exercised strictly
on the comiition of which that power is granted-InvestigationPrinciples of Natural Justice- Code of Criminal Procedure,
1973- s. 48- Constitution of India, 1950 -Article 2262.
G
Ju._risdiction of High Court under Article 226 of
-. Constitution vis;_a-vis s. 482 Cr.PC. - Held: The remedies
.,.,
1
. available
0
underArticle 226 are neither echoed nor transplanted
info s. 482 - Powers under both the provisions operate in
701
H
A
B
c
. )
702
SUPREME COURT REPORTS
[2008] 4 S.C.R.
different fields - Constitution of India, 1950 - Article 226 -
Code of Criminal Procedure, 1973 - s. 482.
Code of Criminal Procedure, 1973-s. 482 - Inherent
power under -Nature and scope of - Discussed.
Practice and Procedure:
Letter Petition - Entertaining of- By Constitutional Courts
- Procedure - Held: Individual Judges not to entertain
communications and letters personally addressed to them
unless the same is allocated to him by the Chief Justice - All
petitions invoking jurisdiction of the court must be addressed
to the entire court and not to any individual judge - Epistolary
Jurisdiction.
Anonymous petitions - Addressed to a named Judge -
Held: Suo motu proceedings Cannot be initiated thereon .
Constitution of India, 1950 - Article 226 - Scope of -
Interference with the Investigation - Held: Such power to be
exercised in rarest of rare cases where non-compliance with
the provisions of chapter XII of Cr.P. C. - Even in such cases,
E High Court cannot direct as to how the investigation is to be
concluded.
\
)
, .,
l,
._
Jc
~ ..
Locus Standi - Anonymous petition before High Court -
Registration of case - Director of the Institution impleaded as
party-accused - High Court directing investigation by Special
F Investigation Team - Locus standi of the institution to challenge
J.
G
the order of High Court - Held: The institution had the locus
'f
since the a/legations in the petition were against the institution
and since its Director was impleaded as party - Constitution
of India, 1950-Article 136.
Public Interest Litigation - Entertainment of - When -
Held: A Public Interest Litigation can be entertained only at
the instance of bonafide litigant - An anonymous petition
cannot be treated as Public Interest Litigation as there is no
H way to verify its bonafide- Suo motu action initiated cannot be
',
i
DIVINE RETREAT CENTRE v. STATE OF KERALA
& ORS.
treated as the one in Public Interest Litigation.
703
A
A female remand prisoner, sent a petition to District
Judge alleging that while she was taking shelter in the
appellant-institution, she was molested and exploited by
the head of the instituti

## Text

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l J
[2008] 4 S.C.R. 701
DIVINE RETREAT CENTRE
A
).
v.
STATE OF KERALA & ORS.
(Criminal Appeal No. 472 of 200.8)
MARCH 11, 2008
B
. [S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.)
..
Jurisdiction:
~
Jurisdiction of High Court- Qua registration of crime and c
investigation -Anonymous petition to High Court, addressed
to a named Judge - AHeging commission of crime against a
particular victim and allegations in general made against an
institution - Initiation. of proceedings Suo motu - Further
withdrawing the investigation of the case in re$pect of the
particular victim from the Investigating Officer and entrusting D
the same to Special Investigation Team - Direction to Special
~
!fJvestigation Team also to investigate in respect of general
. allegations wherefor no complaint lodged - On appeal, held:
High Court in exercise of its jurisdiction either u/s 482 Cr. P. C.
or under ArtiC/e 226 of Constitution, cannot direct investigation
E
by' constituting a Special Investigation Team on the strength
of wild_ a/legations in anonymous petitions without forming any
prima facie opinion in respect of those a/legations - Direction
of investigation into a/legations in respect of which no
complaint lodged, is violative of principles of natural justice -
F
..
Neither of the parties entitled to choose their own investigating
.,
agency ..... The power to investigate must be exercised strictly
on the comiition of which that power is granted-InvestigationPrinciples of Natural Justice- Code of Criminal Procedure,
1973- s. 48- Constitution of India, 1950 -Article 2262.
G
Ju._risdiction of High Court under Article 226 of
-. Constitution vis;_a-vis s. 482 Cr.PC. - Held: The remedies
.,.,
1
. available
0
underArticle 226 are neither echoed nor transplanted
info s. 482 - Powers under both the provisions operate in
701
H
A
B
c
. )
702
SUPREME COURT REPORTS
[2008] 4 S.C.R.
different fields - Constitution of India, 1950 - Article 226 -
Code of Criminal Procedure, 1973 - s. 482.
Code of Criminal Procedure, 1973-s. 482 - Inherent
power under -Nature and scope of - Discussed.
Practice and Procedure:
Letter Petition - Entertaining of- By Constitutional Courts
- Procedure - Held: Individual Judges not to entertain
communications and letters personally addressed to them
unless the same is allocated to him by the Chief Justice - All
petitions invoking jurisdiction of the court must be addressed
to the entire court and not to any individual judge - Epistolary
Jurisdiction.
Anonymous petitions - Addressed to a named Judge -
Held: Suo motu proceedings Cannot be initiated thereon .
Constitution of India, 1950 - Article 226 - Scope of -
Interference with the Investigation - Held: Such power to be
exercised in rarest of rare cases where non-compliance with
the provisions of chapter XII of Cr.P. C. - Even in such cases,
E High Court cannot direct as to how the investigation is to be
concluded.
\
)
, .,
l,
._
Jc
~ ..
Locus Standi - Anonymous petition before High Court -
Registration of case - Director of the Institution impleaded as
party-accused - High Court directing investigation by Special
F Investigation Team - Locus standi of the institution to challenge
J.
G
the order of High Court - Held: The institution had the locus
'f
since the a/legations in the petition were against the institution
and since its Director was impleaded as party - Constitution
of India, 1950-Article 136.
Public Interest Litigation - Entertainment of - When -
Held: A Public Interest Litigation can be entertained only at
the instance of bonafide litigant - An anonymous petition
cannot be treated as Public Interest Litigation as there is no
H way to verify its bonafide- Suo motu action initiated cannot be
',
i
DIVINE RETREAT CENTRE v. STATE OF KERALA
& ORS.
treated as the one in Public Interest Litigation.
703
A
A female remand prisoner, sent a petition to District
Judge alleging that while she was taking shelter in the
appellant-institution, she was molested and exploited by
the head of the institution and that she became pregnant.
When she came out of the institution, she was implicated 8
in false theft case and lodged in jail. District Judge
forwarded the petition to the Magistrate and also to the
'High Court. The Magistrate ordered investigation into the
matter. Subsequently, a case (Crime No.381 of 2005) was
registered u/s. 376(g) IPC. The petition was placed before C
the High Court, and investigation was directed. A
s·ubsequent petition sent by the prisoner to High Court
was also placed in the same file. High Court on 22.12.2005
closed the matter. District Judge received a petition dated
26.10.2005 addressed to one of the Judges of High Court. D
The petition alleged the incident of the female prisoner
and also mentioned about many other unnatural deaths
for which the appellant-institution was alleged to be
responsible. Violations of foreign exchange were also
alleged against the appellant. It was also alleged that E
proper investigation was not being done in the case of
the female prisoner. District Judge forwarded the petition
to the Judge of the High Court to whom the petition was
addressed. The matter was placed before him. The High
Court opined that the petition of the female prisoner F
addressed to High Court praying for proper investigation
should have been treated as a separate petition and the
same should have been clubbed with the anonymous
petition. The court issued direction to register the case
as a suo motu case. The case was accordingly registered, G
duly impleading the persons against whom accusations
were made. The Court by his final order directed
withdrawal of investigation of Crime No. 381 of 2005 from
the Investigating Officer and entrusting the same to a
Special Investigating Team. The court directed the Special H
704
SUPREME COURT REPORTS
.
.
[2008) 4 S.C.R.
A
Investigation Team also to inquire into the allegations of
unnatural deaths, allegations of foreign exchan·ge
violations and any·other cognizable offence about which
ttie team gets information.
·
·
·
·
In appeal to this Court, the appellant contended
8 interalia that High Court did not ·have jurisdiction u/s 482
Cr.P.C. to order investigation into any case by the police;
that such directions could not have been issued even in ·.
Public Interest Litigation under Article 226 of the
Constitution of India; and that in neither of the petitions
C irregularity in the matter of investigation was disclosed.
Respondent contended interalia that the appellant
had no .locus to challenge the order of the High Court in
as much as it was not ari accused in any criminal case;
0
and that even the accused had no right of hearing until
filing of a report u/s 173 Cr.P.C. ·
Allowing the appeal, the Court
I
HELD: 1.1 The High Court in exercise of its inherent
E 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
particularJy on the basis of complaints or anonymous
petitions addressed to a. named Judge. Such
communications cannot be converted into suo motu
F
proceedings for setting the law in motion. Neither the
accused nor ttJe complainant or informant are entitled to
choose their own investigating agency to investigate a
crime in which they may be interested. [Para 34] [728-C-D]
G
Emperor vs. Khwaja Na~irAhmad AIR ~945 P.C.18; S.N.
Sharma vs.Bipen Kumar Tiwari and Ors. 1970 (1) S.C.C. 653;
State of Bihar and An..r. vs. J.A. C. Saldanha and Ors. 1980 (1)
S.C.C. 554; M. C. Abraham and Anr. vs: State or: Maharashtra
and Ors. 2003 (2) S.C.C. 649; State of West Benga/vs. S.N.
H Basak 1963 (2) S.C.R.52; Ha~ari Lal Gupta vs. Rameshwar
.-... r"',,
'
DIVINE RETREAT CENTRE v. STATE OF KERALA
705
& ORS.
Prasad and Anr. Etc. 1972 (1) S.C.C. 452; Nirmaljit Singh A
Hoon vs. The State of West Bengal and Anr. 1973 (3) S.C.C.
753; State of WB. and Ors. vs. Sujit Kumar Rana 2004 (4)
sec 129 - relied on.
State of Karnataka vs. L. Muniswamy and Ors. 1977 (2)
S.C.C.699; Central Bureau of Investigation vs. Ravi Shankar 8
Srivastava, /AS and Anr. 2006 (7) SCC 188; Popular Muthiah
vs. State Represented by Inspector of Police 2006 (7) SCC
296 - held inapplicable.
1.2 High Court cannot set the law in- motion against c
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, 0
which cannot lightly be undertaken by the High Court
even in exercise of its jurisdiction under Article 226 of the
Constitution of lnclia. The High Court in exercise of its
whatsoever jurisdiction cannot direct investigation by
constituting a Special Investigation Team on the strength E
of anonymous petitions. The High Courts cannot be
converted into Station Houses. [Para 43] [734-B-0]
1.3 High Co.urt initiated suo motu proceedings without
even examining as to whether the contents of theanonymous letter and material sent along witb it disclosed F
any prima facie case for ordering .an investigation. 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 r'gard to those G
allegations. [Paras 40 and 42] [731-C; 733-G]
1 4 It is evident from Sections 154, 156 and 157 Cr.P.C.
.
,.
.
that even a police officer can not act on the basis of
information received or otherwise and proceed to
investigate provid~d he has reason to suspect the H
706
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A commission of a cognizable offence which he is
empowered to investigate under Section 156 Cr.P.C.
[Para 43) [733-H; 734-A]
1.5 The investigation of an offence is the field
exclusively reserved for the police officers whose powers
8 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 Cr.P.C. However, unfettered discretion does
not mean any unaccountable or unlimited discretion and
C act according to one's own choice. The power to
investigate must be exercised strictly on the condition of
which that power is granted by Cr.P.C. itself. [Para 33)
[727-H; 728-A-B]
0
1.6 There is nothing like unlimited arbitrary
jurisdiction conferred on the High Court under Section
482 Cr.P.C .. 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.
Section 482 does not confer any new power on the High
E Court but only saves the inherent power which the court
possessed before the enactment of Cr.P.C .. There are
three circumstances under which the inherent jurisdiction
may be exercised, namely (i) to give effect to an order
under Cr.P.C., (ii) to prevent abuse of the process of Court,
F and (iii) to otherwise secure the ends of justice. [Para 22)
[723-E-G]
Kurukshetra University vs. State of Haryana 1977 (4)
S.C.C. - relied on
G
1.7 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
H Officer mala fide. That power is to be exercised in rarest
\
I
\
I
DIVINE RETREAT CENTRE v. STATE OF KERALA
707
& ORS.
of the rare cases where a clear case of abuse of power A
and non-compliance with the provisions falling under
Chapter XII Cr.P.C. 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 B
the observance of process as provided for in the Code.
[Para 35] [728-C-D]
't
S.N. Sharma vs. Bipen Kumar Tiwari and Ors. 1970 (1)
S.C.C. 653 - relied on.
~
c
1.8 Even in cases where no action is taken by the
police on the information given to them, the informant's
remedy lies under Sections 190, 200 Cr. P.C., but a Writ
Petition in such a case is not to be entertained. [Para 36]
[728-H]
D
Gangadhar Janardan Mhatre vs. State of Maharashtra
and Ors. 2004 (7) sec 768 -
1.9 The whole of public law remedies available under
Article 226 of the Constitution of India and the constituent E
power to issue writs in the nature of mandamus, certiorari,
prohibition and quo-warranto are neither echoed nor
transplanted into Section 482. May be both the powers to
issue writs and pass appropriate orders under Sec"tion
482 are conferred upon the High Court but they
F
undoubtedly operate !n different fields. [Para 48] [736-G;
y
737-A]
Pepsi Foods vs. Special Judicial Magistrate 1998 (5)
sec 749- distinguished.
1.10 The contents of the petition submitted by the G
victim and as well as the allegations made in the
anonymous complaint do not 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) IPC. Neither the anonymous H
708
.
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A 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. [Paras 29 and ·301 [726-D, E, G, H]
1
,
1.11 It is difficult to discern the basis for arriving at
B the conclusion that the entire attempt of the Investigating
Officer was to exonerate the accused and make the
complainant as accused. (Para 32] [727-C]
·.;.
.
M. C. M~hta vs. Union of India 2007 (1) SCC 110 -
C referred to.
2.1 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
D justice. 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
E heard to the person likely to be affected by such order
and particularly when such order results in drastic
consequences of affecting one's own reputation. (Para
44] (735-B; 734-H; 735-A-B]
2.2 The order directing the investigation on the basis
F of such vague and indefinite allegations undoubtedly is
in the teeth of principles of natural justice. It is correct 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, 239 and 240 Cr.P.C.
G The appellant is not an accused and, therefore, it was not
entitled for any notice from the High Court befo.re passing
of the impugned order. [Para 44] (734-E-G]
3. The appellant undoubtedly is aggrieved by the
impugned order and, therefore,' entitled to invoke the
H jurisdiction of this Court under Article 136 of the
\
I
-l.
y
,
I
y
DIVINE RETREAT CENTRE v. STATE OF KERALA
709
& ORS.
Constitution of India; The Director of .the appellantA
institution has been impleaded as a partyrespondent 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 B
impugned order. [Para 45] [735-E, D]
Janata Dal vs. H. S. Chowdhary and. Union of India and
Anr. vs. W.N. Chadha 1993 Supp. (4) SCC 260 -
distinguished.
· 4. The suo motu action initiated cannot be treated as C
the one in Public Interest Litigation. The Public Interest
Litigant must disclose his identity.so as to enable the court
to decide that th~ informant is. not a wayfarer or officious
intervener withQut any interest or concern. A Public
Interest Litigation can be entertained by the Constitutional D
Courts only at the instaQce 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. [Paras 49, 55 E
. and 56] [741-B; 740-H; 741-A; 737-8-D]
Sunil Batra (//) vs. Delhi Administration- ~980 (3) SCC
488; Dr. Upendra Baxi (I) vs. State of UP 1983 (2) SCC 308;
Miss Veena Sethi vs. State of Bihar 1982 (2) SCC 583;
Citizens for Democracy through its President vs. State of F
Assam and Ors. 1995 (3) SCC 743; Janata Dal vs. H.S.
Chowdhary AIR 1993 SC 892 - distinguished.
S.P Gupta and Ors. vs. President of India and Ors. AIR
1982 SC 149; Dattaraj Nathuji' Thaware vs. State of G
Maharashtra and Ors. 2005 (1) SCC 590; State of West Bengal
and Ors. vs. Sampat Lal and Ors. 1985 (1) SCC 317; Bandhua
Mukti Morcha vs. Union of India and Ors. 1984 (3) SCC 161 -
relied on.
5.1 It is clear from the record that the Judge of the H
"
710
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A High Court 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
B 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 behches of the court and allocate cases to the
benches so constituted; and the puisne judges can only
c 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. [Para 57]
D [741-C-E]
State of Rajasthan vs. Prakash Chand and Ors. 1998 (1)
SCC 1; Bandhua Mukti Morcha vs. Union of India and Ors.
>
1984 (3) sec 161 - relied on.
E
5.2 The Judge ought not to have entertained the
anonymous petition, contents of which remain unverified
Jr
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. [Para 59] [742-C]
F
5.3 Independence of the judiciary is jeopardized when
courts become embroiled in the passions of the day and
'1
assume primary responsibility to resolve the issues which
are otherwise not entrusted to it by adopting procedures·
which are otherwise not known. [Para 60] [742-C]
G
5.4 There is heavy duty cast upon the constitutional
courts to protect themselves from the onslaught
unleashed by unscrupulous litigants masquerading as
t ..
Public Interest Litigants. The individual judges ought not
to entertain communications and letters personaUy
H addressed to them and initiate action on the judicial side
, .
l J
DIVINE RETREAT CENTRE v. STATE OF KERALA
711
& ORS. [B. SUDERSHAN REDDY, J.]
based on such communication so as to avoid A
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 s
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. [Para 61] [742-E-G]
6. The third respondent having completed the
investigation arrived at certain conclusions, but
unnecessarily kept the matter pending. In the
circumstances of the case, third respondent is directed
c
to make available the material gathered during the course D
of investigation in Crime No. 381 of 2005 to the
Investigating Officer. Thereafter, the Investigating Officer
shall submit appropriate report in accordance with the
provisions of Cr.P.C .. [Paras 64 and 65] [743-E, G, H]
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
E
No. 472 of 2008
From the final Judgment and Order dated 10.3:2006 of
the High Court of Kerala at Ernakulam in Crl. M. C. No. 405 of
2006
F
Y
Anil B. Divan, Romy Chacko, Saji Raphel, Gayathri Devi
S. and Arpit Gupta for the Appellant.
P.P. Rao, G. Prakash, Beena Prakash, Purushottam S.T.
and FebinA.K. forthe Respondents.
Deepak Prakash and Sajith P. (for P. Sumathy) for the
lnteNenor.
The Judgment of the Court was delivered by
B. SUDERSHAN REDDY, J. 1. Leave granted.
G
H
712
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A
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
cent.rat question that falls for our consideration in this appeal.
3. The relevant facts, giving rise to this appeal, have been
· 8
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
c 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
0
Investigation Team headed by Vinson M. Paul, l.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
E 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 Najr.
5. The tell-tale facts disclosed from the record may have
F
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
G identified as Father Mathew Thadathil). When she came out of
Centre to attend her sister's marriage .she was implicated in a
false theft case and lodged in the jail.
H
6. The District Judge having. received the petition on
28.7.2005 forwarded the same to the concerned Magistrate on
.
' )
l J
DIVINE RETREAT CENTRE v. STATE OF KERALA
713
& ORS. [B. SUDERSHAN REDDY, J.]
9.8.2005 to do the needful. The Judicial Magistrate First Class,
A
Koyilandi recorded the statement of the victim on 11.8.2005
and thereafter the- matter was transferred to the Judicial
Magistrate First Clas~. Chalakuddy. The learned Magistrate
having received the records ordered investigation. A case was
registered in Crime No. 381 of 2005 under Section 376(g) l.P.C.
B
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, c
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.
'· D
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 E
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) l.P.C. and further stated: ;
"In the meantime, Smt. Mini Varghese delivered. The Local F
y
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 G
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.1.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 H
714
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A
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
B
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
C matter to be placed before the Registrar General for necessary
actio11 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
D following manner:
"Shri Thomas P. Joseph, District Judge, Kozhikode has
sent a communication dated 28.10.2005, enclosing a
complaint addressed to the Hon'ble Mr. Justice K.
Padmanabhan Nair. The communication of the learned
E
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
F
endorsement:
"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?"
G
Thereafter the Registry re-submitted the whole file before
Padmanabhan Nair, J as under:
H
"It appears that Smt. Mini Varghese, FRP 287, District
Jail, Kozhikode had sent a complaint to the Hon'ble High
Court, narrating her agonies. The matter was placed before
the Hon'ble Mr. Justice K. Thankappan, since His Lordship
'
J
DIVINE RETREAT CENTRE v. STATE OF KERALA
715
& ORS. [B. SUDERSHAN REDDY, J.]
was dealing with the petitions sent from jail. As per the A
order of the Hon'ble 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.
B
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 c
Hon'ble Judge, as per His Lordship's order dated
22.12.2005 directed that the matter be closed.
The entire file is submitted."
On re-submission of the file, the learned judge passed the D
following order on 8.2.2006 thus:
1
"I have carefully gone through Anonymous petition and the
documents endorsed along with. One 9f the documents
enclosed alongwith the petition is a petition submitted by
FPR 287, Mini Varghese raising an allegation of rape E
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
F
'(
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 l.P. Code is registered and the same is being G
investigated by the C I of Police Chalakkudy. The Cl of
Chalakkudy had also submitted a similar statement on
~
31-10-05.
..
It is seen that on 8-11-05 the report of the CI was brought
-,
to the notice of the Hon'ble Judge who was dealing with
H
716
A
B
c
D
E
F
G
SUPREME COURT REPORTS
[2008] 4 S.C.R.
the petition received from jail. He passed an order on 2212-05 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.petition ..
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 involv~ment 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 Cr/.
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 him.
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 .1 O .2005
H received from Mini Varghese by the Registry on 21.11.2005
' J
DIVINE RETREAT CENTRE v. STATE OF KERALA
717
& ORS. [B. SUDERSHAN REDDY, J.]
was placed in the same file based on which Thankappan; J
A
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 fi1e." This fact was also brought
to the notice of Padmanabhan Nair, J.
B
12. However, the learned Judge was of the view that the
'r
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 c
of the view that the said petition was required to be clubbed
..
with the anonymous petition:
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 D
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 E
heard the matter and reserved the case for order. The impugned
order was passed. on 10.3.2006.
SUBMISSIONS:
14. The validity of the said order is impugned in this appeal
F
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 thff·order void.
It was further contended that the impugned order suffers from G
lack of jurisdiction. The jurisdiction of the High Court under
Sec~ion 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 dire~tions issued by the High
Court could not have been issued even in a public interest H
'
J
718
SUPREME COURT REPORTS
[2008] 4 S. C.R.
A
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
B 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.
"f
15. Shri P.P. Rao, learned senior counsel appearing on
c 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
.D
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
r
inasmuch as it is not an accused in any criminal case. It was
E also contended that even the accused in a criminal case has no
right of hearing until filinQ of a report under Section 173 of the
Code.
NATURE OF JURISDICTION UNDER SECTION 482
OF CODE. QUA THE REGISTRATION OF A CRIME AND
F 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 recognized way
G back in Emperor Vs. Khwaja Nazir Ahmad1 . 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
~
H
1 (AIR1945 P.C. 18)
' )
-~
DIVINE RETREAT CENTRE v. STATE OF KERALA.
719
& ORS. [B. SUDERSHAN REDDY, J.]
should· not interfere with the police in matters which are within
A
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 B
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 C
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 D
under S. 491, Criminal P.C., to give directions in the
nature of habeas corpus. In such a case as the present,
however, the Court's functions begin when a charge is
preferred before it and not until then. It has sometimes.
been thought that S. 561A has given increased powers E
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
F
the only powers possessed by the Court are those
expressly conferred by the Criminal Procedure Code,
and that no inherent power had survived the passing of
that Act."
(emphasis supplied)
17. In S.N. Sharma Vs. Bipen Kumar Tiwari & ors.2 , G
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
1
investigate any cognizable 9ffence is uncontrolled by t~e
2 [(1970) 1 S.C.C. 653]
H
'
I
720
SUPREME COURT REPORTS
[2008] 4 S.C.R.
A
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 sub0rdinate to him to proceed to enquire
into the case. "The power of the police to investigate has been
B 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
1
they suspect that a cognizable offence has been
c
. 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
D
ma/a 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
E
its authoritative pronouncement in State of Bihar & anr. Vs.
J.A.C. Saldanha & ors.3 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
F
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
G
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
H
3 [(1980) 1 S.C.C. 554]
'
'
DIVINE RETREAT CENTRE v. STATE OF KERALA
721
& ORS. [B. SUDERSHAN REDDY, J.]
officer submits report to the Court requesting the Court A
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 8
adjudicatory function of the judiciary to determine whether
an offence has been committed and if so, whether by the
t
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 c
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 ........
D
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.................................................................................................
pp26.