THE DIVINE RETREAT CENTRE v. THE STATE OF KERALA

R. BASANT, J.------------------------------------------------- W.P.(C) NO. 27125 OF 2006-D ------------------------------------------------- Dated this the 25th day of January, 2007JUDGMENTThis writ petition filed by the petitioner arises from theaction taken by the Special Investigation Team headed by the4th respondent. The team has been constituted by theGovernment on the basis of the directions issued by this Courtin Crl.M.C.No.405/06 dated 10/3/2006. In the words of thepetitioner, the prayers in the writ petition and the interimrelief are as follows:“PRAYERS(i) to issue a writ, order ordeclaration holding that the raid searchand seizure conducted by the SpecialInvestigation Team on 30.9.2006 and1.10.2006 in the Institution of thepetitioner is illegal, void andunconstitutional;(ii) to direct the 1st respondentand its officers respondents 2 to 4 to paycompensation of Rs. One Crore towards W.P.(C) NO. 27125 OF 2006-D -: 2 :-the legal injury and damages caused to theinstitution and its inmates due to illegalaction of the Special Investigation Team;(iii) to declare that the 4th respondentor the persons conducting investigationunder the 4th respondent have no authorityor jurisdiction to conduct search andseizure at the Divine Retreat Centre tomake out fishy search and enquiry tocollect materials to implicate false chargesand make false propaganda through themedia against the petitioner;(iv) to issue a writ, order or directiondirecting the 4th respondent not to publishthe photographs/videographs taken of theinmates of the various institutionsespecially of females of the Divine RetreatCentre in the course of the search held on30/9/2006 and 1/10/2006;(v) to issue a writ, order or directiondirecting the 4th respondent to return themedicines and prescription seized from thepetitioner in the course of the search heldat the Centre on 30/9/2006 and 1/10/2006;(vi) to issue a writ, order or W.P.(C) NO. 27125 OF 2006-D -: 3 :-appropriate direction directing therespondents to ensure that theinvestigation as directed under Ext.P1 isconcluded within a time frame to bestipulated by this Honourable Court; (vii) to issue such other writ, order ordirection as this Honourable Court maydeem fit and proper in the facts andcircumstances of the case.INTERIM RELIEFFor the reasons stated in the writpetition and the affidavit accompanying thesame, it is respectfully prayed that thisHonourable Court may be pleased to directthe 1st respondent to award interimcompensation of Rs.50 lakhs for settingright the injury caused to the DivineRetreat Centre and its inmates on accountof the illegal raid, search and seizure,pending disposal of the Writ Petition.”2. Crl.M.C.No.405/06 was initiated by a learned Judge ofthis Court suo motu on the basis of an anonymous petitionreceived. It is unnecessary to advert to the background in W.P.(C) NO. 27125 OF 2006-D -: 4 :-which the learned Judge proceeded to pass the order dated10/3/2006. What is important is the conclusions and directionsthat were ultimately issued by the Court. For the sake ofconvenience, I shall extract below the relevant conclusions andthe operative portion of the order dated 10/3/06:“8. Considering all aspects of thematter, I am of the view that a SpecialInvestigation Team headed by Sri. VinsonM. Paul IPS., Inspector General of Police,who is at present working as the ManagingDirector of Kerala Police HousingConstruction Corporation,Thiruvananthapuram, is to be constitutedto conduct investigation of Crime No.381of 2005 of Koratty Police Station. Theother members of the Team will be handpicked by Sri. Vinson M.Paul. TheDirector General of Police shall makeavailable the services of other officerswhom Sri. Vinson M. Paul requires. TheSpecial Investigation Team shall conductinvestigation of Crime No.381 of 2005 ofKoratty Police Station. It is open to theSpecial Investigation Team to resort to thescientific methods such as Polygraph Test, W.P.(C) NO. 27125 OF 2006-D -: 5 :-Brain mapping, (P.300 test), D.N.A. fingerprinting etc., while conducting theinvestigation.9. Government shall issue anotification under Section 17 of thePrevention of Corruption Act conferringpower to the Team to investigate theoffences under the Prevention ofCorruption Act also. The SpecialInvestigation Team shall also enquire intothe allegation of foreign exchangeviolation. The officers included in theSpecial Investigation Team shall not bedisturbed unless and until theinvestigation of the case is over.Government shall provide the necessaryinfrastructure like fund, vehicles etc., tothe Special Investigation Team. AllDepartments of the Government shall co-operate and render necessary assistance tothe Special Investigation Team. 10. The Special Investigation Teamshall also enquire into the allegations ofunnatural deaths stated in the petition.The Team shall enquire as to whether aperson by name Karyavelu worked in theburial ground and whether he died under W.P.(C) NO. 27125 OF 2006-D -: 6 :-mysterious circumstances. If any case wasregistered in connection with the death ofKaryavelu the present stage of thatinvestigation shall be verified andappropriate action taken. The Team shallalso enquire whether there was a person byname Binu attached to the Retreat Centreand whether he died under suspiciouscircumstances. In case the Team getsinformation regarding any cognizableoffences, those matters shall also beinvestigated in accordance with law.11. In the result, the followingorders are passed:The Government shall issue necessaryorders constituting a Special InvestigationTeam headed by Sri.Vinson M. Paul IPS.,Managing Director of Kerala PoliceHousing Construction Corporation,Thiruvananthapuram as expeditiously aspossible, at any rate within two weeksfrom the date of receipt of a copy of theorder. The other members of the Teamwill be selected by the head of the Team.As and when the team is constituted, eitherthe head of the Team or the person W.P.(C) NO. 27125 OF 2006-D -: 7 :-authorised by him may collect theCompact Discs/Paper Cutting etc., enclosedalong with the petition from this Court.The head of the Special Investigation Teamshall file a preliminary report as to theaction taken in the matter within onemonth from the date of constitution of theTeam. It is open to the head of the Teamor a person authorised by him to approachthis Court for further direction orclarification if any, during the course ofinvestigation. Forward copies of the orderto the Government and Sri. Vinson M. PaulI.P.S., for necessary action”.(emphasis supplied)3. It is significant that the petitioner or the Government orany other has not chosen to challenge the said order. The saidorder is in force. The learned counsel for the petitioner submitsbefore me that the petitioner has not challenged the said orderand has no intention of challenging the order now. The SpecialInvestigation Team has been constituted by the Government.Reports have been filed by the Special Investigation Team.Directions have been issued in the matter by this Court earlier W.P.(C) NO. 27125 OF 2006-D -: 8 :-on such reports.4. Many objections have been taken against the order bymany members of the public, organizations and leaders, it issubmitted at the Bar. But what is relevant legally is that thesaid order has not been challenged by any one. The ordertherefore stands and is liable to be implemented.5. I would have assumed that the petitioner – who isshown to be a religious, ecclesiastical and philanthropicorganization, taking care of more than 25000 inmates every daywho undergo spiritual, physical and psychological treatment,had chosen not to challenge the order dated 10/3/06 of thisCourt in its anxiety to get itself cleared of the allegedly false andbaseless allegations raised against it. But that does not appearto be the truth. While sniping is resorted to at the order passedin Crl.M.C.405/06, there is no attempt, in accordance with law,made to challenge the order on merits. This writ petitionreveals unmistakably that the absence of challenge does notstem from a desire to subject itself to any type of enquiry to getitself cleared of the allegations. 6. By the said order, the 4th respondent, as stated earlier,has been permitted to seek further directions from time to time W.P.(C) NO. 27125 OF 2006-D -: 9 :-from this Court. At the time of hearing the learned DirectorGeneral of Prosecutions on behalf of the 4th respondent submitsthat at the moment no further directions are necessary orsought.7. Various persons have wanted to come on record.According to them, the petitioner herein is attempting to stall aproper enquiry/investigation on the basis of the order passed inCrl.M.C.No.405/06. This writ petition it is alleged is only anattempt to legally intimidate the 4th respondent to deter himfrom sincerely and efficiently discharging the duties assigned tohim under the order dated 10/3/06, it is alleged. I am notpersuaded to permit any one of such petitioners to come onrecord in this writ petition. All such requests are turned down.I.A.Nos.15046 and 15124 of 2006 filed by such petitioners aredismissed. It shall be open to them to furnish to the 4threspondent any relevant information which they have with themhaving a bearing on the investigation/enquiry which the 4threspondent is, under law, obliged to undertake. 8. The investigation/enquiry on the basis of the orderdated 10/3/06 is in progress. The 4th respondent cannot befound fault with for conducting such investigation/enquiry. All W.P.(C) NO. 27125 OF 2006-D -: 10 :-the powers legally available with him must certainly be pressedinto service by him to carry out the directions issued by thisCourt in the said unchallenged order dated 10/3/06.9. If the 4th respondent resorts to any illegal action,certainly the aggrieved party can take recourse to law. Suchremedies/reliefs as are legally permissible can, of course, besought by the petitioner herein also. In a writ petition underArt.226 of the Constitution, the aggrieved can seek the publiclaw remedy of compensation also. But certainly such a directionfor compensation will not be lightly granted. Any court will haveto note that ordinarily and normally such relief of compensationis to be claimed through civil courts of law duly constituted,though in an exceptional case the constitutional powers can beinvoked by this court to direct compensation and redress thegrievance of an aggrieved person who complains of loss sufferedby improper, mala fide and illegal exercise of powers vested inthe State and its officials.10. Of course, the fact that such alleged action is taken bythe 4th respondent on the strength of an order passed by thisCourt will not clothe him with any immunity if it is shown that heis guilty of any improper, contumacious or mala fide conduct. W.P.(C) NO. 27125 OF 2006-D -: 11 :-11. Thus, the crucial question is whether there is anysatisfactory allegations or circumstances that can persuade thisCourt to issue any or all of the six directions sought against the4th respondent and other respondents for action taken by the 4threspondent and the members of the Special Investigation Teamon the basis of the unchallenged order passed by this Court inCrl.M.C.No.405/06.12. We now have to consider what precisely is the cause ofaction alleged in this writ petition to justify the claim forcompensation and other reliefs. One must again remind himselfthat the order dated 10/3/06 remains unchallenged. If the 4threspondent takes any action as permitted or as mandated underthe unchallenged order dated 10/3/06, that cannot give rise toany cause of action.13. The crux of the allegations is that on 30/9/06 and1/10/06 an Inspection Team comprising of four Doctors assistedby the police personnel had visited the petitioner –establishment. They had allegedly gone round the petitioner –establishment and had inspected the premises and perused thedocuments. They had allegedly taken some documents/medicines into their custody. The Team which went to visit the W.P.(C) NO. 27125 OF 2006-D -: 12 :-establishment on 30/9/06 and 1/10/06 comprised of four Doctors.The police personnel also accompanied them. It is contendedthat such visit by them was really not an innocent or innocuousvisit; but amounted to search and seizure. The procedureprescribed for such search and seizure had not been followed.Such visit by the Team amounts to denial of human rights.Right to privacy has been offended. A roving enquiry is beingconducted to ascertain whether any impropriety has beencommitted by the petitioner. This amounts todenial/infringement of the fundamental right under Art.21 of theConstitution. Such inspection was widely publicised. Suchinspection affects the morale and the reputation of the petitioner– establishment. It offends the privacy of the inmates. Itoffends religious freedom of the petitioner and the inmates. Itis, in these circumstances, that the relief extracted above areclaimed.14. I have heard the learned counsel for the petitionerSri.M.K. Damodaran and the learned Director General ofProsecutions Sri.P.G. Thampi. I had requested Sri.S. Sreekumar,Standing Counsel for the C.B.I. to appear as amicus curiae and W.P.(C) NO. 27125 OF 2006-D -: 13 :-assist this Court. He has been heard. 15. The 4th respondent has explained to the Court hisversion of what actually had taken place on 30/9/06 and 1/10/06.He feels that he is bound and obliged under law to carry out thedirections of this Court in the order dated 10/3/06. If he were toeffectively carry out such directions, he has to study the workingof the institution. For that purpose, he wanted a dulyconstituted medical team to inspect the establishment andascertain certain details. Such ascertainment of details isabsolutely essential for discharging the onerous responsibilityplaced on his shoulders by the unchallenged order of this Court.No search has been conducted. No seizure has been effected.No raid as alleged had taken place. The 4th respondent hadaddressed the Director of Health Services to constitute a medicalteam to inspect the institution run by the petitioner and submit areport. A team of medical officials has been constituted by theDirector of Health Services. They had inspected the petitioner– establishment on 30/9/06 and 1/10/06. After such inspection,they have submitted reports. The Special Investigation Team isconsidering the further action to be conducted. The SpecialInvestigation Team had not publicised the result of the W.P.(C) NO. 27125 OF 2006-D -: 14 :-inspection. The petitioner – establishment has religiousovertones and the 4th respondent was alertly conscious of thepossible fallout from such inspection. To ensure transparency,the inspection by the medical team had been videographed. Itwas not published by the 4th respondent or any official underhim. It may be true that some media personnel had alsovideographed. The police have no right to forbid the mediapersons from entering the petitioner's premises. It is zealouslyensured that no information is furnished to the media by themembers of the Special Investigation Team. The inspection wasnot conducted by the Special Investigation Team; but wasconducted by a team of medical officials constituted by theDirector of Health Services at the instance of the 4th respondent.12 police officials including a woman Police Constable and aSuperintendent of Police were available in plain clothes to assistthe members of the medical team in the course of theirvisit/inspection. They have in no way interfered with theworking of the institutions. They have in no way vexed orharassed the inmates, the volunteers, officers or staff of thepetitioner. 16. The 4th respondent submits that the allegations raised W.P.(C) NO. 27125 OF 2006-D -: 15 :-in respect of the inspection are all false and are raised with thetransparent intention of intimidating and threatening the 4threspondent from carrying out a proper and legal investigation/enquiry as directed by this Court in the order dated 10/3/06. 17. Copies of the reports of the medical team and theorder constituting the medical team have all been placed beforethis Court for perusal.18. The crucial question is whether the 4th respondent orany one acting under the 4th respondent on the strength of theunchallenged order dated 10/3/06 is guilty of any indiscretionwhich would give rise to a valid cause of action to claimcompensation in public law. Having considered the entirematerials available, I am unable to find any specific act ofimpropriety or illegality or any act without authority committedby the 4th respondent and his team. At any rate, nothing hasbeen brought to my notice which would persuade this Court toinvoke the powers under Art.226 of the Constitution to grant anyrelief as claimed in this writ petition. The disputed andcomplicated questions of fact cannot be attempted to be resolvedin proceedings under Art.226 of the Constitution. No compellingreason is shown as to why such a dispute regarding facts has to W.P.(C) NO. 27125 OF 2006-D -: 16 :-be attempted to be resolved in this writ petition. Normally, anyperson who claims to be aggrieved by the conduct of a publicservant must resort to the ordinary remedies available underlaw. I find no reason to deviate from that principle in the factsand circumstances of this case. 19. Prayer No. (i) to declare the acts performed by theSpecial Investigation Team on 30/9/06 and 1/10/06 cannot hencesucceed. Prayer No.(ii) for a direction to pay an amount ofRupees One Crore to the petitioner cannot also succeed. Thebizarre and fanciful claim, without any basis probabilises thecontention that the real attempt is to resort to intimidation byinitiation of legal proceedings. The third prayer to declare thatthe 4th respondent and the members of his Inspection Team haveno authority to inspect the petitioner's premises would benegation of the order dated 10/3/06. The petitioner who is notaggrieved by the order dated 10/3/06 passed by a learned SingleJudge cannot attempt to challenge the said order before anotherSingle Judge Bench of the same Court. Prayer No.(iv) to issuean order to the 4th respondent not to publicise the photographsand videographs is found to be unnecessary and unsustainable asthe 4th respondent undertakes that he has no intention and is not W.P.(C) NO. 27125 OF 2006-D -: 17 :-shown to have published such photographs or videographs at anytime. The 5th prayer for return of medicines and prescriptionstaken by the team on 30/9/06 and 1/10/06 is found to beunsustainable inasmuch as the team does have the legalcompetence to keep such medicines and prescriptions toascertain whether there has been any violation of the relevantprovisions in respect of the transaction of such medicines andprescriptions. At any rate, I am not satisfied that the powersunder Art.226 of the Constitution can or need be invoked togrant prayer No.(v) at this stage. The 6th prayer made is that itmay be ensured that the investigation/enquiry is completed asper the order dated 10/3/06 as expeditiously as possible. I amsatisfied that the said request is justified. But considering thenature of the challenge before the 4th respondent as indicated inthe unchallenged order dated 10/3/06 it would be imprudent andinexpedient for this Court to fix any particular time limit.Prayers (i) to (vi) cannot, in these circumstances, be granted. 20. I find merit in the apprehension aired by the 4threspondent that the very purpose of this petition is to legallyintimidate and threaten the Special Investigation Team. Thepetitioner who has not challenged the order dated 10/3/06 is W.P.(C) NO. 27125 OF 2006-D -: 18 :-attempting to virtually thwart and frustrate the order dated10/3/06 by initiating proceedings against the 4th respondent. Mylearned brother appears to have been conscious of the nature ofthe challenge before the Special Investigation Team and thatexplains why the court had resorted to the unprecedented courseof specifying the officer who should take up the investigation. Irepeat that the said direction remains unchallenged. The 4threspondent must be presumed to be made of sterner stuff andshould not succumb to any alleged attempt by any one to cowhim down and to deter him from properly discharging his dutiesunder the order dated 10/3/06 which remains unchallenged. Ofcourse, the 4th respondent can exercise only such powers as arelegally available to him under law and under the directionsissued by this Court. He must alertly be conscious of his theadditional sublime burden of responsibility on him to actefficiently but within the law strictly, he having been chosen bythe Court to accomplish this onerous responsibility.21. I refuse to be dragged into a controversy as to whetherthe order dated 10/3/06 can clothe the petitioner with anyparticular power. Suffice it to say that my learned brother hadintended that the Special Investigation Team must discharge W.P.(C) NO. 27125 OF 2006-D -: 19 :-their duties only in accordance with law. Absolutely nothing hasbeen placed before me to show that the 4th respondent hasoverstepped the mandate under the impugned order dated10/3/06. So long as the order dated 10/3/06 stands – no partyhaving chosen to challenge the same, the 4th respondent is boundto discharge his duties under that order conscientiously. Iexpect him to do that.22. What are the powers of the 4th respondent? I do notintend to be exhaustive. He has been directed to conductinvestigation into a specific crime. He has been directed toconduct enquiry into alleged unnatural deaths. He has beendirected to be watchful and ascertain whether there is materialsto indicate the commission of any other cognizable crimes. He iscompetent to conduct preliminary enquiries under thePrevention of Corruption Act. He can suo motu register crimesif he comes across materials to indicate the commission of anycrimes. I am not to list out such powers that he has. I needonly say that the action taken on 30/9/06 and 1/10/06 do notappear to me to be beyond his jurisdictional competence as anInvestigating Officer under the Code of Criminal Procedure andas a person to whom specific directions have been issued under W.P.(C) NO. 27125 OF 2006-D -: 20 :-the unchallenged order dated 10/3/06.23. An attempt is made to contend that the petitioner –establishment is a religious institution and the attempt made bythe 4th respondent under the impugned order affects the freedomof religion. In a secular polity, all institutions whether religiousor otherwise are expected to function under law and no one canresist any attempt of investigation/enquiry into thecrimes/irregularities committed by them on the plea that theinstitution is a religious one. That the petitioner is a religiousestablishment cannot afford any protection against the dueprocess of law. In a society wedded to rule of law, which weare, no one, how high soever he be is beyond law. Religiousinstitutions are also not above the law. The generation of suchan impression and acceptance of the same would amount tonegation of rule of the law. Myopic public activists with an eyeon the ballot box may collaborate to whip up the cry of religionin danger; but it cannot be forgotten that the danger to religionis only averted when there is proper investigation/enquiry andtruth is brought out. Greater maturity on the part of social andpolitical activists is expected and if that be so, one would haveexpected the petitioner and all others to co-operate with the W.P.(C) NO. 27125 OF 2006-D -: 21 :-enquiry/investigation under the unchallenged order so that anycloud over the petitioner – institution is cleared by such anenquiry/investigation.24. I may hasten to observe that I have ignored thearguments in the nature of challenge against the order dated10/3/06 as the said unchallenged order cannot be sought to bechallenged before me in this writ petition.25. No directions are sought by the 4th respondentregarding implementation of the order dated 10/3/06. It is notnecessary for me hence to advert in detail to the nature of suchpower. Suffice it to say that I find absolutely nothing illegal inthe exercise of the power by the 4th respondent in pursuance ofthe order dated 10/3/06 so far justifying the granting of anyrelief by invoking the powers under Art.226 of the Constitution. 26. This writ petition is, in these circumstances, dismissed.Sd/- (R. BASANT, JUDGE)Nan///true copy//P.S. to Judge