Kerala High Court Quashes State Order Sanctioning Further Probe Under CrPC Section 173(8) | Affirms Activist’s Locus Standi in Former DGP Tomin J Thachankary Disproportionate Assets Case
Sanchayita Lahkar
The High Court of Kerala Division Bench of Justice Dr. A.K. Jayasankaran Nambiar and Justice Jobin Sebastian delivered its judgment on 27 August 2025, setting aside a Government order that had accorded sanction for further investigation in a criminal case. The Bench held that the order was not sustainable in law and declared it invalid. The Court further directed the jurisdictional Special Court to frame charges based on the final report already filed, along with any supplementary final report that may be submitted with its permission. The Bench also requested the Special Court to complete the trial within six months.
The matter arose from a writ appeal filed against the dismissal of a writ petition that challenged an order dated 28 January 2021 of the State Government in the Vigilance Department. The order had accorded sanction for a further investigation in Crime No.VC3/2007/SCE under Section 173(8) of the Code of Criminal Procedure and entrusted the investigation to another Special Investigation Unit. The appellant described himself as an anti-corruption crusader who had consistently approached the courts to ensure timely investigation in corruption cases, including the matter against the second respondent. It was his case that the Government order prolonging the investigation had been issued solely to benefit the accused, a senior police officer.
The appellant contended before the writ court that the State could not issue such an order at a stage when the final report had already been submitted to the jurisdictional Special Court. He also pointed out that the accused had unsuccessfully sought discharge before the Special Court and thereafter had withdrawn his criminal revision petition filed before the High Court. The appellant argued that the impugned Government order was intended to delay the proceedings and thereby protect the second respondent’s career progression.
The learned Single Judge, while dismissing the writ petition, held that the appellant lacked locus standi since he was neither the complainant nor had a direct nexus with the case. The Single Judge further held that the State did have power to order further investigation and that such power could not be negated merely on the possibility of misuse. The Single Judge observed that only cases of extraordinary abuse of power could justify interference under Article 226 of the Constitution.
In appeal, counsel for the appellant argued that locus standi could not be denied to him, particularly since he had repeatedly obtained directions from the Court to expedite the investigation in the past. He relied on various precedents to contend that public-spirited individuals could intervene in cases involving corruption in public office. It was further argued that the Government lacked authority to direct a further investigation at the instance of the accused, especially when no fresh material had been discovered by the investigating agency itself.
On the other hand, the State submitted that it had the authority to order further investigation even after the filing of a final report. It relied on earlier judgments supporting the existence of such power. The State also submitted that the investigating agency had subsequently come across fresh material and therefore the impugned order had facilitated further progress. It argued that even if the order were set aside, liberty should be reserved for the prosecution to file a supplementary final report.
The second respondent, represented by senior counsel, argued that the appellant was motivated by personal vendetta, citing pending criminal cases against him. He maintained that the order was valid, having been issued after consultation with the Advocate General. It was also contended that the State retained general supervisory powers over investigations.
The Court perused the long chronology of events beginning with the complaint in 2002, registration of crime in 2007, filing of final report in 2013, subsequent transfers of the case, and multiple petitions filed by the appellant seeking expeditious completion. It recorded that despite directions from the Court, there were significant delays, with the accused having filed applications for discharge and a revision petition before the High Court. The Court noted that the Government order was passed after the accused had already failed in his discharge petition.
The Bench observed that "the rules of standing are essentially designed to weed out frivolous litigation from courts and to ensure that there is no abuse of the process of the court." Referring to recent pronouncements, it noted that courts must carefully scrutinise whether litigation is driven by genuine public interest or by malice. It recorded that in criminal cases, since offences are wrongs against society, "a party having a bona fide connection with the cause of action, and who is aggrieved by the order of a court, cannot be left at the mercy of the State and without any option to approach a judicial forum for seeking justice."
The Court found that the appellant had consistently pursued completion of the investigation for over a decade and had obtained orders of this Court. It observed that "we cannot therefore accept the finding of the learned Single Judge... that the appellant did not have the necessary standing to maintain the writ petition." The Court held that the appellant had the necessary locus standi, particularly in view of the serious allegations of corruption against a senior police officer.
Turning to the legality of the Government order, the Court noted that it was issued merely on the representation of the accused. It stated, "what we find most perplexing is that the sanction for further investigation appears to have been granted for the mere asking, and without examining the merits of the allegation raised by the 2nd respondent." The Court observed that while the State may have supervisory powers, "we are at a loss to understand how the State Government could have exercised such a power... at the instance of material brought to their notice by an accused person who had already approached the jurisdictional court with a discharge petition that was eventually dismissed."
It further recorded that "an accused has no right to dictate the manner and method by which an investigation must be conducted." Citing precedent, the Court observed that Section 173(8) does not oblige hearing the accused before ordering further investigation. The scheme of the Code, according to the Court, only permits the investigating agency to approach the court for further investigation at specified stages.
The Bench stated, "the Government order dated 28.01.2021 was therefore clearly vitiated by legal mala fides." It further remarked on the conduct of the second respondent in deliberately causing delays, noting that the impugned order diminished public confidence in the justice system. The Court observed that "if the State, whose duty it is to bring offenders to justice, takes sides with an accused and permits him to dictate the manner in which the investigation against him is to progress, it will be antithetical to the concept of ‘the rule of law’."
In its operative part, the Division Bench set aside both the Single Judge’s judgment and the government order dated 28 January 2021. The Court declared: “In the light of the above discussions, we allow this Writ Appeal by setting aside the impugned judgment of the learned Single Judge and allow the writ petition by setting aside Ext.P1 Government order impugned therein”
However, acknowledging that the extended investigation had already produced new material, the Court clarified that such evidence would not be invalidated. It held: “The said material cannot be seen as vitiated merely because it was obtained in an investigation carried out pursuant to an order that is now found to be illegal. In as much as there was no stay order in force against the operation of the order during the pendency of these proceedings, the de facto principle would operate to legitimise the said material for the purposes of the criminal proceedings that are to follow”
The Court directed that "the Special Court shall proceed expeditiously with the framing of charges against the 2nd respondent/accused based on the final report already filed before it by the investigating agency, read with any supplementary final report that the investigating agency may choose to file immediately before the jurisdictional Special Court after obtaining its permission." It also requested the Special Court to endeavour to complete the trial expeditiously, and "at any rate within six months from the date of receipt of a copy of this judgment."
Advocates Representing the Parties:
For the Petitioners: Sri. V. John Sebastian Ralph, Sri. B. Deepak, Sri. Vishnu Chandran, Sri. Ralph Reti John, Sri. Appu Babu, Smt. Shifna Muhammed Shukkur
For the Respondents: Sri. B. Raman Pillai (Senior Advocate), Sri. S. U. Nazar, Special Public Prosecutor (Criminal), Sri. A. Rajesh, Special Public Prosecutor (Vigilance), Smt. Rekha S., Senior Government Pleader, Sri. S. Rajeev, Sri. V. Vinay, Sri. M. S. Aneer, Sri. Sarath K. P., Sri. Anilkumar C. R., Sri. K. S. Kiran Krishnan, Smt. Dipa V., Sri. Akash Cherian Thomas, Sri. Azad Sunil
Case Title: Bobby Kuruvila v. State of Kerala & Ors.
Neutral Citation: 2025: KER:65451
Case Number: W.A.No.1291 of 2021
Bench: Justice Dr. A.K. Jayasankaran Nambiar and Justice Jobin Sebastian
