Kerala: Bold principles and vigilante acts

THIRUVANANTHAPURAM: “The Vigilance and Anti-Corruption Bureau has a duty to ensure that those who are  not involved in  any corruption cases are not victimised or harassed using the bureau through false or vexatious complaints or allegations. A small mistake on the part of the VACB by way of using vested interests to harass an honest public servant is likely to raise demands to bridle the VACB’s independence. Therefore, the  VACB has to function with a ‘zero mistake’ strategy through due diligence,  care and utmost sensitivity.” These are the excerpts from a circular issued by Vigilance director Jacob Thomas  two weeks back.

But the ‘zero mistake’ strategy of the VACB has received a setback as the agency carried out searches at the residence of one of the senior most IAS officers, denting  the reputation of the  highly respected officer. According to legal experts, as per the Code of Criminal Procedure (CrPC),  the Vigilance could enter any private premises for a search only with a proper warrant. “The act of the Vigilance team at the flat of additional chief secretary K.M. Abraham was a violation of the procedures for search prescribed by  sections 93 and 94 of the CrPC. It could be considered as an act of trespassing, which is an offence under the Indian Penal Code,” said a leading lawyer who was associated with the government.

Former state police chief K.J. Joseph also said that the Vigilance could carry out searches at premises only after registering the case. “Preliminary inquiry is only meant for ascertaining whether there was prima facie evidence for the allegation. For this, a search was not at all essential,” said Mr. Joseph, who had served as a Vigilance director. Another former Vigilance director also said that the search at the residence of an officer for preliminary inquiry was never acceptable. He also said that the Vigilance officials could have explored other options like collecting the statement of the suspected officer or verifying property statements to ascertain the wealth.

Even since the Supreme Court verdict in the Lalita Kumari versus  Govt of UP case came, the VACB has been registering cases after 15 days to six weeks of the preliminary inquiry to ascertain whether the allegation disclosed an cognizable offence. This had indeed put the public servants on tenterhooks  as the chances of getting a corruption case slapped on them are high. Being involved in a Vigilance case can affect the career prospects of a public servant. “Earlier there was no strict time limit for preliminary investigations. It could go on till three to six months or even more.  In such cases, the inquiry official used to get sufficient time to see if the allegations were prima facie true. But with the Lalita Kumari case verdict, the time limit has to be strictly followed,” said a Vigilance official.

As per the recent circular issued by the Vigilance director, as an effective protection to honest public servants against false, vexatious, frivolous or hearsay allegations, the inquiry officer shall take a decision at the first step of inquiry to further questioning the petitioner  as to whether the allegations are true or false. Before or during this questioning of the petitioner, some additional information about the subject matter of the petition and suspected official shall be collected through telephone or desk research by various modes prescribed by the bureau. But many IAS officers feel that these directives remain  on paper. “The VACB is now acting blindly on petitions, it seems. Cases are being registered swiftly against officers on the basis of flimsy petitions, the latest instance being that of additional chief secretary Tom Jose,” said the officer.

What is Lalita Kumari case

A Supreme Court Constitution bench headed by the then Chief Justice P. Sathasivam, who is now Kerala Governor, pronounced the judgment in the Lalita Kumari  versus Government of UP case.  Lalita Kumari was a minor girl.  The SC judgment mandates registration of FIR if the information disclosed commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. “If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be  conducted only to ascertain whether cognizable offence is disclosed or not,” said the order.

Initially, the SC prescribed a time limit of 15 days for the preliminary inquiry. But  it was modified in March 2014 by giving six weeks’ time in exceptional cases. According to the SC judgment, a police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.  Action must be taken against erring officers who do not register the FIR if the information received by them discloses a cognizable offence. Preliminary inquiry (quick verification) could be done in matrimonial and  family disputes, commercial offences and medical negligence  and corruption cases, said the judgment.