STATE OF KERALA Vs. STATE

JUDGEMENT

(1.) This reference is made by the Enquiry Commissioner and Special Judge (Vigilance), Thrissur under Section 395 (2) of Cr.P.C. Following are the questions referred :

(2.) Questions referred can be understood and answered only after considering the factual backgrounds. On 17-1-1998 an F.I.R. was registered as V.C. 1/98.against the first respondent on the basis of the vigilance enquiry for offences punishable under Section 13 (1) (d) read with Sec. 13 (2) of the Prevention of Corruption Act, 1988 and under Sections 420, 468, 471 and 477A of IPC. The allegation against the 1st respondent who was employed as a Medical Officer, P. H. Centre, Senapathy, Idukki District from June, 1993 to June, 1997 is that he fraudulently marked his attendance register in the P. H. Centre while he was working in the St. Joseph Hospital, Dharmagiri, Kothama- galam, Ernakulam District for about three years during the period from 1994 to 1997. Investigating Officer had questioned as many as 57 witnesses and seized 69 documents and submitted his final report on 17-3-2001 stating that there were no sufficient evidence to charge sheet and take a criminal case but it recommended to take departmental action. Accordingly Government charge sheeted him as per Service Rules and enquiry was directed to be conducted under the Kerala Civil Service (Classification, Control and Appeal) Rules. The investigating officer, in the final report filed before the Special Judge, recommended to drop the case. When final report was submitted this reference was made as according to Special Judge case files (CD file) indicates a prima facie case against the 1st respondent. But sanction by Government/Competent authority is required as a condition precedent to launch prosecution in view of Sec- tion 19 of the Prevention of Corruption Act.

(3.) With regards to first two questions, regarding power under Sections 156 (3) and 173 (8) of Cr.P.C. are concerned matter is well settled. As held by the Supreme Court in H. S. Bains v. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 : 1980 Cri LJ 1308, the power under Section 156 (3) can be exercised even after the submission of a report under Section 173 which would mean that it is open to the Magistrate not to accept the conclusion of the Police Officer and direct further investigation by the said agency. When the police submits a final report after investigation with the conclusion that there is no sufficient materials available for the prosecutor of the accused, Magistrate or Special Judge has no jurisdiction to direct the police to submit a charge sheet even if he can himself take cognizance of such offence under Section 190 (1) as held by the Supreme Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 R. N. Chatterji v. Havildar Kuer Singh, 1970 (1) SCC 496. This is all the more so when Magistrate cannot take cognizance without prior sanction in view of Section 197 of Cr.P.C. or Section 19 of the P.C. Act. Power of the Magistrate is only to direct a reinvestigation or further investigation by the same agency and not to direct the police to submit charge sheet. Judgment of the Apex Court in Hemant Dhasmana v. Central Bureau of Investigation, AIR 2001 SC 2721 : 2001 Cri LJ 4190 also shows that Special Judge can direct further investigation by the same agency in the corruption cases for ends of justice even though it cannot direct investigation by a particular officer. This is the power vested in the Magistrate under Section 173 (8) of Cr.P.C.