IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. Siri Jagan, J. W.P. (C) No. 1149 of 2007 Dated this the 19th day of June, 2012 Head Note:- Kerala Lok Ayukta Act, 1999 – Section 12 and 15 - The Lok Ayukta does not function as a Court of law but, as an investigating functionary, who has to consider the complaint, conduct investigations, find out the truth and file a report before the Government containing the truth in respect to the allegations of the complainant and recommending action against the persons responsible. Held:- What the Lok Ayukta has to report to the competent authority is whether the allegations in the complaint have been substantiated and whether the same has resulted in injustice or undue hardship to the complainant. The primary object of the Kerala Lok Ayukta is to act as an Ombudsman to cleanse the administration wherever maladministration is detected. It is not an adversarial process. It is a process of finding out the truth. It is also not intended for prosecuting anybody like in criminal case. The duty of the Lok Ayukta is to collect all evidence by investigating the complaint and to get at the truth of the allegations in the complaint and file a report before the Government as to whether the allegations have been substantiated. For Petitioner:-
For Respondents:-
J U D G M E N T 1. The petitioner is the father of an unfortunate young boy, who was arrested by the Police. The sequence of events started from the date when one girl went missing. Her parents lodged a complaint before the police. A man - missing case was registered by the police. The girl returned after four days. It was found that the girl was in the company of the petitioner’s son and three of his friends. Thereafter, as requested by the police, the parents of the girl and the girl went to the police station and gave statements to the police. The girl submitted that she had not been in any way harmed by the youths. The girl was referred for medical examination, in which it was proved that she was not subjected to any kind of sexual intercourse. The girl and her parents had no complaint against the petitioner’s son and the other youths, in whose company the girl had been. It appears that the girl had some difference of opinion with her parents, which was the reason for her to leave her home and she was under the protective custody of the youths at the relevant time. But the police arrested the youths and charged them with offences under Sec. 366A, Sec. 376 and Sec. 420, read with Sec. 34 of the Indian Penal Code. According to the petitioner, the petitioner’s son was arrested on 21-08-2005, but was produced before the Magistrate only on 24-08-2005. when he was produced before the Magistrate on 24-08-2005, the boy complained to the Magistrate that he was manhandled by the police. The Magistrate referred the boy for medical examination to the general hospital. The doctor who examined him prepared a wound certificate, in which he recorded injuries found by him on the body of the petitioner’s son. Thereafter, the petitioner filed a complaint before the Kerala Lok Ayukta complaining of illegal custody by the police, of his son from 21-08-2005 to 24-08-2005 and manhandling of the petitioner’s son resulting in injuries to his body. The Lok Ayukta registered a complaint as Complaint No. 1804/05 and directed the Superintendent of Police, attached to the office of the Kerala Lok Ayukta to investigate the complaint. He conducted detailed investigation and submitted Ext. P9 report, wherein he came to the conclusion that the petitioner’s son was taken into custody by the police on 21-08-2005 and that the boy was manhandled by the police. Thereafter, the Lok Ayukta considered the complaint, examined witnesses, who did not include the Superintendent of Police, who conducted the investigation on behalf of the Lok Ayukta, and came to the conclusion that the complainant miserably failed to prove that his son was taken into custody by the respondents on 21-08-2005, kept in illegal custody in the police station, manhandled and was produced before the Magistrate only on 24-08-2005 as contended by him. Ext. P13 is the report of the Lok Ayukta on the complaint filed by the petitioner. The petitioner is challenging the same. According to the petitioner, there was sufficient evidence before the Lok Ayukta, which would unmistakably point to the fact that the petitioner’s son was taken into custody on 21-08-2005, kept in illegal custody and manhandled. The learned counsel for the petitioner points out that in Ext. P9 report, the Superintendent of Police, who conducted the investigation on behalf of the Lok Ayukta, had come to the definite conclusion that the petitioner’s son was taken into custody on 21-08-2005 and that he was manhandled. Strangely, in Ext. P13 report of the Lok Ayukta, there is absolutely no consideration of Ext. P9 report although the report was submitted by the Superintendent of Police attached to the Lok Ayukta. It is further submitted that the Lok Ayukta did not consider the matter in the right perspective. The learned counsel for the petitioner submits that the Lok Ayukta considered the matter as a criminal case, as if it was for the petitioner to prove the guilt of the respondents beyond any reasonable doubt. The learned counsel submits that picking on some alleged discrepancies in the evidence, the Lok Ayukta came to the conclusion that the petitioner had not proved his case. According to the learned counsel for the petitioner, what the Lok Ayukta has to do is to investigate the complaint and not to try the complaint, which is what has been done by the Lok Ayukta. In the above circumstances, the petitioner seeks the following reliefs: “i) to issue a writ of certiorari or any writ, direction or order quashing Ext. P13 order of the Lok Ayukta as arbitrary, unreasonable and illegal. ii) to issue a writ of mandamus directing the respondents to pay reasonable, appropriate and adequate compensation for the petitioner’s son for the pain and suffering suffered by him at the hands of respondents 2 to 4. iii) to issue a writ of mandamus or direction or order directing the 1st respondent Government to initiate departmental as well as criminal proceedings against respondents 2 to 4 for their illegal and unlawful acts. iv) to declare that in view of the evidence available in the enquiry before the Lok Ayukta, the petitioner is entitled to have all the prayers in Ext. P4 complaint allowed in his favour.” 2. Although the Lok Ayukta has chosen to enter appearance through counsel, the counsel was not present when the matter was taken up for hearing. Although notice has been served on all the respondents, when the matter was taken up for hearing there is no one representing them to argue the case. The 2nd respondent appears through counsel and opposes the writ petition on the ground that he had nothing to do with the allegations in the complaint. 3. I have considered the rival contentions in detail. I am of opinion that the Lok Ayukta has not considered the matter in the right perspective. On a reading of the Kerala Lok Ayukta Act, it is abundantly clear that when a complaint is received what the Lok Ayukta is expected to do is to investigate the complaint and not to try the same as a criminal case. That is why the Lok Ayukta has been given the assistance of the police personnel to conduct the investigation. The preamble of the Kerala Lok Ayukta Act reads thus: “Preamble. - WHEREAS it is expedient to make provision for the appointment and functions of certain authorities for making enquiries into any action (including any omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public servants in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto.” (Underlining Supplied) Sec. 3(1) of the Act reads thus: “3. Appointment of Lok Ayukta and Upa - Lok Ayuktas. - (1) For the purpose of conducting investigations and inquiries in accordance with the provisions of this Act, the Governor shall appoint a person to be known as Lok Ayukta and two other persons to be known as Upa - Lok Ayuktas.” (Underlining Supplied) Sec. 7 of the Act reads thus: “7. Matters which may be investigated by the Lok Ayukta and the Upa - Lok Ayuktas. - (1) Subject to the provisions of this Act, the Lok Ayukta and one of the Upa - Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or specific approval of - (i) the Chief Minister; or (ii) a Minister; or (iii) a Member of the State legislature; or (iv) a Secretary; or (v) an office bearer of a political party at the state level; or (vi) an officer referred to in sub-clause (iii) of clause (d) of Sec. 2, in any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa - Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa - Lok Ayuktas together and the decision of the majority therein shall prevail, (2) Subject to the provisions of this Act, an Upa - Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office bearer of a political party at State level or an officer referred to in sub-clause (iii) of clause (d) of Sec. 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa - Lok Ayukta, the subject of a grievance or an allegation. (3) Notwithstanding anything contained in sub-sections (1) and (2), the Lok Ayukta or an Upa - Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government. (4) The Lok Ayukta may, by general or special order, assign to each of the Upa - Lok Ayuktas the matters which may be investigated by them under this Act. (5) Notwithstanding anything contained in sub-sections (1) to (4), when an Upa - Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa - Lok Ayukta, and in the absence of both, by the Lok Ayukta, (6) Notwithstanding anything contained in any other provisions of this Act, no investigation made by an Upa - Lok Ayukta under this Act and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is no assigned to him by such order. (7) For the removal of doubts, it is hereby clarified that the term ‘Lok Ayukta’ wherever it is used in this Act, in relation to any of the persons referred to in sub-section (1), shall mean the Lok Ayukta and, as the case may be, one or both of the Upa - Lok Ayuktas as provided in that sub-section.” (Underlining Supplied) Sec. 8 of the Act reads thus: “8. Matters not subject to investigation. - (1) Except as hereinafter provided, the Lok Ayukta or an Upa - Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule. (2) The Lok Ayukta or an Upa - Lok Ayukta shall not investigate,- (a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa - Lok Ayukta, as the case may be; (b) any action in respect of a matter which has been referred to inquiry under the Commissions of inquiry Act, 1952 (Central Act 60 of 1952); (c) Any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place: Provided that a complaint referred to in clause (c) may be entertained by the Lok Ayukta or an Upa - Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause. (3) in the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa - Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima - facie be regarded as having been improperly exercised. (underlining supplied) Sec.9 of the Act reads thus: “9. Provisions relating to complaints and investigations. - (1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lok Ayukta or an Upa - Lok Ayukta. (2) Every complaint shall be made in such form and in such manner, as may be prescribed, and shall be supported by an affidavit. (3) Where the Lok Ayukta or an Upa - Lok Ayukta proposes, after making such preliminary inquiry as he deems fit, to conduct any investigation under this Act, he - (a) shall forward a copy of the, complaint to the public servant and the competent authority concerned. (b) shall afford to such public servant, an opportunity to offer his comments on such complaint. (c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit. (4) Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held, either in public or in camera, as the Lok Ayukta or the Upa - Lok Ayukta, as the case may be, considers appropriate in the circumstances of the case. (5) The Lok Ayukta or an Upa - Lok Ayukta may, in his discretion, refuse to investigate or discontinue investigation of, any complaint involving a grievance or an allegation, if in his opinion - (a) the complaint is frivolous or vexatious or is not made in good faith. (b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or (c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies. (6) In any case where the Lok Ayukta or an Upa - Lok Ayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned. (7) The conduct of an investigation under this Act against a public servant in respect of any action shall not affect such action or any power or duty of any other public servant to take further action with respect to any matter subject to investigation. (8) In every proceeding before the Lok Ayukta or an Upa - Lok Ayukta under this Act, the State shall be made a party thereto and the Government shall appoint a Special Attorney and one or more senior Government Pleaders to represent the Government before the Lok Ayukta or an Upa - Lok Ayukta, as the case may be, on the terms and conditions prescribed: Provided that it shall not be necessary that State should be made a party in cases where Government interests are not involved.” (Underlining Supplied) Sec. 11 of the Act reads as follows: “11. Evidence. - (1) Subject to the provisions of this section, for the purpose of any investigation (including the preliminary inquiry, if any, before such investigation) under this Act, the Lok Ayukta or an Upa - Lok Ayukta may require any public servant or any other person who, in his opinion, is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document. (2) For the purpose of any such investigation (including the preliminary inquiry), the Lok Ayukta or an Upa - Lok Ayukta shall have all the powers of a Civil Court, while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commissions for the examination of witnesses or documents; (f) such other matters as may be precribed. (3) Any proceeding before the Lok Ayukta or an Upa - Lok Ayukta shall be deemed to be a judicial proceeding within the meaning of Sec. 193 of the Indian Penal Code (Central Act 45 of 1860). (4) No person shall be required or authorised by virtue of this Act to furnish any such information or answer any such question or produce so much of any document, - (a) as might prejudice the affairs of the State or the security or defence or international relations of India (including India’s relation with the Government of any other country or with any international organisation); (b) as might involve the disclosure of proceedings of the Cabinet of the Government of Kerala or any Committee of that Cabinet and for the purpose of this sub-section, a certificate issued by the Chief Secretary certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b) shall be binding and conclusive. (5) For the purpose of investigation under this Act, no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a Court.” (underlining supplied) Sec. 12(1) reads thus: “12. Reports of Lok Ayukta etc. - (1) If, after investigation of any action in respect of which a complaint involving grievance has been made, the Lok Ayukta or an Upa - Lok Ayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or to any other person, the Lok Ayukta or an Upa - Lok Avukta shall, by a report in writing, recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time, as may be specified in the report and also intimate the complainant about its having made the report.” (Underlining Supplied) Sec. 15 reads thus: “15. Initiation of Prosecution. - Notwithstanding anything contained in Sec. 14, if after investigation into any complaint, the Lok Ayukta or an Upa - Lok Ayukta is satisfied that the public servant has committed any criminal offence and that he should be prosecuted in a Court of law for such offence, then, he may pass an order to that effect and initiate prosecution of the public servant concerned, if there is no necessity for prior sanction; and if prior sanction of any authority is required, with the sanction of the appropriate authority. Explanation. - For the purpose of this section, - (a) ‘investigation’ means the collection of evidence regarding the correctness or otherwise of the allegation or grievance; (b) ‘initiation of prosecution’ means the filing of a report or a complaint before a Court of competent jurisdiction to take cognisance of an offence.” (Underlining Supplied) Sec. 16 of the Kerala Lok Ayukta Act reads as follows: “16. Staff of Lok Ayukta, etc. - (1) There shall be such officers and employees, as may be prescribed, to assist the Lok Ayukta and the Upa - Lok Ayuktas in the discharge of their functions under this Act. (2) The categories of officers and employees referred to in sub-section (1) and their appointment and other conditions of service including such special conditions, as may be necessary, for enabling them to act without fear in the discharge of their functions, shall be such, as may be prescribed, in consultation with the Lok Ayukta. (3) Without prejudice to the provisions of sub-section (1), the Lok Ayukta or an Upa - Lok Ayukta may, for the purpose of conducting investigations under this Act, utilise the services of - (a) any officer or investigating agency of the State Government; or (b) any officer or investigating agency of the Central Government with the prior concurrence of that Government; or (c) any other agency. (4) The officers and other employees referred to in sub-section (1) shall be under the administrative and disciplinary control of the Lok Ayukta: Provided that when the Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, the senior among the Upa - Lok Ayuktas may discharge the functions of the Lok Ayukta under this sub-section.” From the scheme of the Act, as is evident from the above provisions of the Act, I am of opinion that, the Lok Ayukta does not function as a Court of law but, as an investigating functionary, who has to consider the complaint, conduct investigations, find out the truth and file a report before the Government containing the truth in respect to the allegations of the complainant and recommending action against the persons responsible. What the Lok Ayukta has to report to the competent authority is whether the allegations in the complaint have been substantiated and whether the same has resulted in injustice or undue hardship to the complainant. But a reading of Ext. P13 order of the Lok Ayukta would make it abundantly clear that, that is not what has been done by the Lok Ayukta. The concluding paragraph of Ext. P13 is more than sufficient to prove the same. Paragraph 17 of Ext.P13 order reads thus: “17. The evidence on record establishes that the complainant miserably failed in prove that his son PW 3 was taken into custody by respondents 2 to 4 at about 1 P.M. on 21-08-2005, kept in illegal custody in the police station and manhandled him and he was produced before the Magistrate only on 24-08-2005 as contended by him. Therefore we find that the complainant is not entitled to get any of the reliefs claimed in this complaint. Accordingly this compliant is dismissed.” (underlining supplied) Ext. P9 is the report of the Superintendent of Police attached to the office of the Kerala Lok Ayukta, who conducted the investigation on behalf of the Lok Ayukta. The findings of the Superintendent of Police in Ext.P9 are as follows: “Findings On 24-08-2005 at 1345 hrs myself along with Sri. G. Murukesan, Dy. Superintendent of Police, Investigation Agency visited Fort Police Station. The respondents were not present there. On enquiry it came to understand that Praveenkumar son of the petitioner and his friends Ratheesh, Pramod and Shinto were sent to the General Hospital Thiruvananthapuram for potency examination. Enquiry made into the allegation revealed as follows. The petitioner Thankayyan (W1) is working as a security guard at Manvila. He is having two sons and his youngest son, Praveenkumar aged 20 (W3) is working as a marketing executive in M/S Zee India International Ltd., Ulloor. W4 Maharajan is running a firm at Chala by name ART Plastic Mart. He is having two sons and a daughter. His daughter Anitha Vani aged 16 years is studying in 12th standard in a Tamil Higher Secondary School at Chala. There are some problems between Anitha Vani and her parents regarding family issues. On 18-08-2005 morning she left home in the pretex of going to school but she did not go to the school. This fact came to the knowledge of her father (W4). In the evening W4 asked her the reason of her not going to school. This resulted in an alteration between them and W4 beat her with hands. At about 2045 hrs Anitha Vani left home without the knowledge of her parents and brothers. When it came to the knowledge of her parents that she was missing they made enquiries about her at various places but no information could be obtained about her whereabouts. On 19-08-2005 evening Sri. Maharajan preferred a petition at Fort Police Station in this regard. Since no information could be obtained till 20-08-2005 evening he gave First Information Statement to the third Respondent, the S.I. of Police Fort Police Station and based on his FI statement a case in Cr No. 635/05 u/c Man missing was registered at Fort Police Station by the third respondent. The 3rd respondent investigated the case from 20-08-2005 to 22-08-2005. In the mean while W4 located the Mobile Phone number dialed by his daughter prior to leaving home and he tried to contact this number several times, but could not till 20-08-2005. The third respondent contacted W3 in this mobile phone on 20-08-2005 and understood that the missing girl was in his company. He instructed W3 to surrender along with her at the police station. On 21-08-2005 evening Anitha Vani returned to her home in the comp of W3 and their friends Ratheesh, Pramod and Shinto. As soon as she reached home W4 informed the third respondent about her arrival. Immediately the third respondent came to the house of W4 and confirmed that the missed girl returned. He gave direction to W4 to produce her before him at Fort Police Station on the next day. Accodingly on 22-08-2005 afternoon W4 and his wife went to Fort Police Station along with Anitha Vani and reported before the third respondent. She was sent for medical examination to the Women and Children’s Hospital Thycadu on the same day and was subjected for examination by a Lady Doctor. On 22-08-2005 night Anitha Vani was detained in the Police Station under the survilance of Women Police Constables and she was produced before the Jdl. First Class Magistrate’s Court II Thiruvananthapuram on the next day. The Magistrate questioned the girl in detail and recorded her statement. Thereafter she was released to her parents. On 23-08-2005 the 3rd respondent submitted a report to the Judl. First Class Magistrate’s Court II stating that offences punishable under Sec. 366(A), Sec. 376, Sec. 34 IPC were committed in this case and hence he had deleted caption Manmissing and added these sections of law (Ext. D). On 23-08-2005 the second respondent took up the investigation. On the same day he filed a report in the Court to the effect that he had added Sec. 420 IPC also in this case as his investigation revealed commission of offence punishable under Sec. 420 IPC also. On 29-08-2005 the second respondent filed another report before the JFCM Court II informing that Sri. Praveenkumar, Ratheesh, Pramod and Shinto were included in the array of accused in Crime No. 635/05 of Fort Police Station (Ext. H). On 24-08-2005 evening all the accused mentioned above were produced before the Judl. First Class Magistrate’s Court II Thiruvananthapuram with remand report by the second respondent. All of them complained before the Magistrate that they were taken into custody on 21-08-2005 evening and were manhandled by the police. The Magistrate sent all these persons to the General Hospital for examination and treatment on the same day. Subsequently remanded them to the Sub Jail Thiruvananthapuram. On 25-08-2005 all of them were sent to the Medical College Hospital for further treatment. As part of the investigation the second respondent took all the four accused into police custody on 29-08-2005 for three days and returned them on 01-09-2005. It is alleged by the petitioner (W1) that Sri. Praveenkumar (W3) and his friends Ratheesh, Pramod and Shinto were taken into custody on 21-08-2005 and unlawfully detained. W2 and 3 supported this allegation. Vide Ext. J it can be seen that W1 filed a petition and affidavit before the Jdl. First Class Magistrate’s Court II Thiruvananthapuram on 22-08-2005 alleging that W3 and others were taken into custody and detained by the third respondent. Also that they were manhandled by the police. He also preferred a petition to the Commissioner of Police Thiruvananthapuram on 22-08-2005 at 18.07 hrs to this effect vide Ext. K receipt. It is quite interesting to note that W3 Praveen kumar was arrested in the presence of his brother Arunkumar (W2) on 24-08-2005 at 11.00 hrs at Ulloor because Arunkumar is running business of Chicken at Aruvikkara and that he along with his father (W1) was running to get his brother (W3) released from Police custody since 21-08-2005 evening. There is no reason to disbelieve the statement of W1 to W4 and Ext. J and K. All these facts go to show without saying that W3 Praveenkumar and his friends Ratheesh, Pramod and Shinto were taken into custody by the third respondent on 21-08-2005 evening and unlawfully detained in the Police Station till 24-08-2005. When W1 and W2 approached him and the second respondent several times to see Praveenkumar the respondents did not entertain their request. I have perused the CD file in Cr No. 635/05 of Fort Police Station and it is revealed that there is no evidence to show that the accused in this case, Praveenkumar (W3), 27 Ratheesh age 22 S/o. Sivarajan Achani; Rejith Bhavan, Panachayi! Aruvikkara Village. 3) Promod age 21 S/o. Krishnankutty, Lekshmi Priya, Dam Road, Aruvikkara and Shinto age 24 S/o. Thomas, Elavathinkal, Kunnukara P.O. Ernakulam have committed offences punishable under Sec. 366(A) 376, 420 and 34 IPC. According to Ext. E, the Medical examination report, the missed girl Anitha was not raped by any one. There is no evidence of any violence. She is aged more than 16 years as per Ext. F. Neither the girl nor her relatives raised any complaint that she was subjected to rape or sexual intercourse or any type of harassment by any person. Ext. E and the statements of the girl, W3 and other accused given before the Magistrate will clearly support this fact. Both the second and third respondents did not verify the statements of these persons in details. Actually no investigation is seen made in this case. When it came to the knowledge of the second respondent that W1 approached the Jdl. First Class Magistrate’s Court II Thiruvananthapuram and the Hon’ble Lok Ayukta for getting remedy he included W3 and his friends as accused in Cr 635/05 after altering the section of law to 366(A), 376, 420 and 34 IPC and recorded their arrest. The fourth respondent is a police constable of Thampanoor Police Station. He is attached to the Crime squad of the Asst. Commissioner of Police, Fort, on working arrangement. Though he is a member of the Crime Squad of the Asst. Commissioner, Fort, he is working in the office of the second respondent. It is alleged by W3 that he was manhandled by the fourth respondent. Though this is denied by the fourth respondent there is no reason to disbelieve W3 because W3 did not raise any allegation against other constables. As discussed under the above said paragraphs I am to report that the allegations are substantiated in evidence. It is further observed that there is serious supervisory lapses on the part of the Asst. Commissioner of Police, Fort and the Commissioner of Police, Thiruvananthapuram city. On 23-08-2005 the 3rd respondent sent Express Report to the Asst. Commissioner of Police, and the Commissioner of Police informing that Sec. 366(A), Sec. 376, Sec. 34 IPC were added in the case and the case was included in the list of grave crimes. It is the bounden duty of both these officers to conduct close supervision on grave crimes. The Asst. Commissioner should visit the place of incident, question the witnesses and accused, write grave crime report, give necessary instructions to the investigating officer and to send his Grave Crime Report to the Dy. Inspector General of Police with copy to the Commissioner of Police. But till 07-09-2005 he has not done these things which shows that he has miserably failed in the supervision of the work of his subordinate which is a grave dereliction of duty. Sri. Haridas is the Asst. Commissioner of police Fort who is responsible for the dereliction. Though a petition containing serious allegations against the third respondent was received by the Commissioner of Police he did not interfere in it but merely forwarded the same to the counter petitioner in the petition. i.e., the SI of Police, Fort Police Station for necessary action. This shows the negative attitude of a responsible police officer when a petition containing allegation of violation of human rights and serious irregularities was received by him. Hence there is supervisory lapses on his part also. Respondent No. 2 is the Station House Officer of Fort Police Station. The third respondent is a Junior Sub Inspector and he is under training. His training is not completed. He is posted at Fort Police station as part of his training. It is the prime duty of the 3rd respondent and the Asst. Commissioner of Police, to give correct and legal instructions to the trainee Sub Inspector then and there. On a perusal of the case diary file it is seen that the case diaries of the 2nd and 3rd respondents were written by some one else on behalf of them. An investigating officer, especially a trainee, should write the case diaries in his own handwriting. Since the 3rd respondent is only a trainee he cannot be found fault with in the above mentioned irregularities because he acted as directed by his superiors especially by the second respondent. Under this circumstances I may submit the following recommendations. 1) Direction may be given to the first respondent to entrust investigation in Cr No. 635/05 under Sec. 366(A), Sec. 376, Sec. 420 and Sec. 34 IPC of Fort Police Station to the Crime Branch CID. 2) Direction may be given to the first respondent to initiate disciplinary action against the respondents 2 and 4 for the illegal act and official misconduct on their part as discussed earlier and to initiate disciplinary action against Sri. Haridas Assistant Commissioner of Police Fort for his supervisory lapses as mentioned earlier.” (underlining supplied) In Ext. P13 order of the Lok Ayukta , there is absolutely no reference to this investigation report by the Superintendent of Police engaged by the Kerala Lok Ayukta to investigate the truth of the complaint although the said report entirely supports the case of the complainant in all respects and in addition also points out dereliction of duty by superior officers who were not named in the complaint as well. Going by the contentions in the report I get the unmistakable feeling that the complainant was denied justice by the police officers concerned. Of course, the Lok Ayukta can certainly consider the report of the Superintendent of Police and come to their own conclusion in respect thereof, which power cannot be denied to the Lok Ayukta. But, they must certainly bring the report of the Investigating Officer and the materials collected by him into evidence in the proceedings of the complaint, give the respondents in the complaint an opportunity to cross-examine the investigating officer on the findings in the report and then consider whether the report can be acted upon or not. That has not been done in this case. What have been done are, to summarise the depositions of witnesses, who were examined on behalf of the complainant, to pick holes in their evidence as in a criminal case and to enter a finding that the complainant has not proved his case. The Lok Ayukta has not been established for that purpose. The primary object of the Kerala Lok Ayukta is to act as an Ombudsman to cleanse the administration wherever maladministration is detected. It is not an adversarial process. It is a process of finding out the truth. It is also not intended for prosecuting anybody like in criminal case. The duty of the Lok Ayukta is to collect all evidence by investigating the complaint and to get at the truth of the allegations in the complaint and file a report before the Government as to whether the allegations have been substantiated. This is clear from a comparison of Sec. 12 and Sec. 15. Under Sec. 12, the Lok Ayukta has to find out whether after investigating any action in respect of a complaint involving a grievance such action has resulted in injustice or undue hardship to the complainant or any other person. Under Sec. 15, the Lok Ayukta has to go further and if it is satisfied that the public servant has committed any criminal offence and that he should be prosecuted in a Court of law for such offence, initiate prosecution. Therefore the Lok Ayukta has to consider whether there is sufficient reason to infer whether there is any injustice or hardship to the complainant or any other person and then to find out whether there is sufficient evidence to prosecute the public servant. For the standard of proof required, the two parts are different. For the first, at the most what is required is preponderance of probability. It is only for the second part evidence for a successful prosecution for a criminal offence has to be made out. In this case, the Lok Ayukta considered the matter as if they were trying a criminal case and came to the conclusion that the complainant has not proved his case. What the Lok Ayukta has to do is to investigate the complaint and to forward a report as to whether the allegation has been substantiated by the evidence collected by it. Certainly, in this case it has not been done. Ext. P9 report has its own evidentiary value. That has been submitted by an investigating agency attached to the office of the Kerala Lok Ayukta, who is an independent person, unbiased and unprejudiced and who conducted the investigation as directed by the Lok Ayukta. That being so, the Lok Ayukta ought to have given great weight to the report of the investigating officer. Instead, the Lok Ayukta has totally ignored the report without even referring to it. In the above circumstances, I have no hesitation to hold that Ext. P13 is liable to be set aside. I do so. But, I am not inclined to enter into specific findings in respect of the complaint of the petitioner in this writ petition, insofar as it is for the Lok Ayukta to do the same after considering the case in the right perspective. Accordingly, I remand the matter to the Lok Ayukta for fresh consideration in accordance with law, in accordance with the findings in the writ petition. The Lok Ayukta shall certainly take into account Ext. P9 report of its own investigating agency, bring it in evidence in the proceedings, give an opportunity to the respondents to cross - examine the Superintendent of Police on the report and give specific reasoning as to their conclusion in the report to be submitted before the Government under Sec. 12 of the Kerala Lok Ayukta Act in accordance with the standard of proof required for their conclusion as described above. The writ petition is disposed of as above. |
