Kerala High Court Sets Aside Govt Order Sanctioning Further Probe Into Disproportionate Assets Case Of Former DGP Tomin J Thachankary

Reversing the judgment of the Single Judge dismissing the writ petition challenging the order, the Division Bench of Dr. Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian observed:

“…we are at a loss to understand how the State Government could have exercised such a power to direct further investigation more than four years after the laying of the final report, and that too 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… In our view the State government did not have the power to issue such an order and, even if it did, the power was not exercised in the manner contemplated under law. The Government order dated 28.01.2021 was therefore clearly vitiated by legal mala fides.”

The Division Bench was considering a writ appeal preferred by Bobby Kuruvilla, who claimed to be an anti-corruption crusader, against the judgment dismissing his writ petition stating that he had no locus standi.

However, the Division Bench noted that the appellant had previously preferred complaints alleging delay in the case and further observed:

“We are therefore of the view that the appellant had the necessary locus standi to maintain the writ petition challenging the Government order that directed a further investigation to be conducted after almost five years since the investigating agency lodged a final report before the jurisdictional Special Court. The writ petition preferred by the appellant had to be seen as in continuation of his efforts at ensuring an expeditious completion of an investigation against the 2nd respondent accused.”

The Court expressed concerns in the delay of the whole investigation process and proceedings before the Special Court. Outlining the timeline of events in the case, it remarked:

“We have deemed it necessary to narrate the above facts only to highlight the conduct of the 2nd respondent, who was till recently a high-ranking Police Officer in the Police Department of the State, in deliberately causing a procrastination of the investigation and the framing of charges against him. The Government order impugned in these proceedings, which we have found to be vitiated in law, does little to inspire a citizen's confidence in our criminal justice system. 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' which has been recognised as a basic feature of our Constitution. In our role as the 'sentinel on the qui vive' entrusted with the duty of safeguarding the rights of our citizens, we cannot permit such indiscretions on the part of the State Executive.”

The Court further directed the Special Court to endeavour to complete the trial of the case expeditiously, within six months from the date of receipt of the judgment.

Background

The second respondent Tomin J. Thachankary, a senior police officer, was accused in a case pending before the Court of the Enquiry Commissioner and Special Judge based on the final report filed by the Special Cell of the Vigilance and Anti-Corruption Bureau (VACB).

The allegation against him was that, during the period from 01.01.2003 to 04.07.2007, he acquired and possessed assets worth Rs.64,70,891/-, which was disproportionate and in excess of 135.80% of his known sources of income.

He had filed an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 in the Special Court, which was dismissed on 29th May 2020. This order of the Special Court was subsequently challenged before the High Court but it was not pressed, and thereby dismissed.

Pursuant to such development, the State issued an Order dated 28th January 2021, granting sanction for conducting further investigation of the case by another special investigation unit of the VACB.

This order was issued by the Government on the basis of a representation made to it by the accused. The said Government Order has been challenged by the appellant in the writ petition.

Case No: WA No. 1291 of 2021

Case Title: Bobby Kuruvila v. State of Kerala and Ors.

Citation: 2025 LiveLaw (Ker) 529

Counsel for the appellant: V. John Sebastian Ralph, B. Deepak, Vishnu Chandran, Ralph Reti John, Appu Babu, Shifna Muhammed Shukkur

Counsel for the respondents: B. Raman Pillai (Sr.), S.U. Nazar – Special PP, A. Rajesh – Special PP, Rekha S. – Senior GP, S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P., Anilkumar C.R., K.S. Kiran Krishnan, Dipa V., Akash Cherian Thomas, Azad Sunil

Click To Read/Download Judgment