K. Krunakaran
Vs. State of Kerala & ANR [2000] INSC 160 (29 March 2000)
G.B. Pattanaik
& R.P. Sethi.
SETHI,J
L.I.T.J Referring to letter dated 18.6.1996 filed as Annexure R-2 with the counter affidavit in this Court, terming it to be actuated by extraneous considerations and assailing the
Government Order dated 12th May, 1992, (Annexure R-1) as illegal, Shri K.K. Venugopal,
Senior Advocate appearing for the appellant has prayed for quashing of the FIR
No.1/97 (Annexure P-8) and subsequent proceedings initiated against the
appellant. It is submitted that the source of power for registering the FIR
referable to the aforesaid Government order being illegal and violative of the
mandate of judgment of this Court in Vineet Narain & Ors. vs. Union of India & Anr. [1998 (1) SCC 226], the
appellant cannot be subjected to harassment of a criminal trial. The impugned
FIR is stated to be amounting to overriding the judgments of the High Court of Kerala
and this Court passed in earlier litigation praying for registration of the FIR
against the appellant. The registration of the FIR has been termed to be
amounting to contempt of court having been filed without any new material.
Political rivalry is alleged to be the prime consideration for registration of
the case against the appellant.
The
facts of the case are that the appellant was the Chief Minister of the State of
Kerala for the period 1991-95. Kerala
State Civil Supplies Corporation is stated to have entered into a contract with
M/s.Power & Energy Pvt.
Limited,
Singapore for the purchase of import of
15,000 MT of Palmolein. The Comptroller & Auditor General of India (CAG) is
stated to have submitted his report dated 11.2.1994 for the year ending on 31st March, 1993. One Mr.M.Vijay Kumar who was the
opposition MLA in the Kerala Assembly raised the allegation of corruption with
regard to import of Palmolein in the Assembly. The State Government headed by
the appellant is stated to have placed all the Government files relating to the
transaction before the Assembly for the information of all the members. One Mr.Kallar
Sukumaran, Chief Editor, Gulf India Times filed a petition in the High Court of
Kerala under Article 226 of the Constitution, which was registered as OP No.3813/94,
praying therein for the issuance of appropriate direction directing the
respondent-State to register appropriate crime in the matter of import of Palmolein
allegedly on the ground that the aforesaid transaction was against the rules,
regulations and guidelines fixed by the Government of India which resulted in
giving heavy pecuniary advantage to foreign based company consequent to the
agreement between the fourth respondent in the writ petition and the Singapore
Company.
An
appropriate investigation was prayed to be conducted in the matter and a case
under the Prevention of Corruption Act be registered against the guilty. The
aforesaid writ petition was dismissed by a learned Single Judge of the High
Court vide order dated 4th April, 1994 holding that no case was made out for
issuance of directions under Article 226 of the Constitution of India as the
report submitted by the CAG had a definite purpose to achieve and that the said
report by itself did not reveal the commission of any offence. It was further
observed that:
"From
the allegations in the original petition it is seen that the object of the
petitioner is more political rather than anything else and the main target of
attack seems to be the 3rd respondent - the Chief Minister of the State." M.Vijay
Kumar MLA of Thiruvanthapuram Constituency presented a First Information Report
before the Superintendent of police, Vigilance (Hqrs.) (Annexure P-3) praying
for registering a case for offences under Section 13(1)(c) & (d) of the
Prevention of Corruption Act and Sections 406, 409, 420, 201, 34 and 120B of
the Indian Penal Code against the persons named therein which included the
appellant as one of the accused persons. The Superintendent of Police vide his
letter informed Shri M. Vijay Kumar that no action could be taken in the report
lodged by him in view of GO(P) No.65/92/Vig. dated 12.5.1992. The aforesaid
letter, inter alia, provided that the Vigilance Department was not to initiate
enquiry suo motu even when a complaint is made in person or in a signed
petition and invariably should report such complaints to the Government in
Vigilance Department which was to issue necessary instructions in the matter.
It is wroth noticing that the appellant herein who was the Chief Minister at
the relevant time was also holding the Home Department which included Vigilance
Department.
After
the Superintendent of Police declined to register the FIR, the said M.Vijay
Kumar filed writ petition no.9882/94 in the High Court of Kerala praying
therein for issuance of direction against the Deputy Superintendent of Police,
Vigilance (Hqrs.) Thiruvanthapuram, commanding him to register a crime case
pursuant to the FIR lodged by him and to investigate the same in accordance
with law. The aforesaid writ petition was dismissed by another judge of the
High Court of Kerala vide his judgment dated 26th July, 1994. The learned Judge referred to various documents attached
with the FIR and found that as the complaint under Section 154 of the Code of
Criminal Procedure had not been filed before the officer incharge of the police
station, the fifth respondent was not obliged to register a case. The writ
appeal filed against the order of the learned Single Judge of the High Court of
Kerala was dismissed by a Division Bench vide its judgment dated 27th
September, 1994.
The
Division Bench observed that the various annexures which were referred to in
the body of the FIR had actually not been annexed with the original petition.
Some of the annexures being Exhibits P-4, P-5, P-5A, P-9, P-10, P-12, P-15 and
P-17 were shown to the Hon'ble Judges constituting the Bench who observed:
"We have gone through these Exhibits also and so has the learned Single
Judge. After going through these documents the learned Single Judge has in
detail analysed the contents of all these documents as well as the First
Information Report. Undoubtedly, these documents pertain to certain financial
irregularities in placing orders for import of 15,000 M.T. Palmolein oil during
the period December, 1991 to March, 1992. The documents, however, by themselves
do not disclose the commission of any cognizable offence by respondents 1 to 4
who are the Chief Minister of Kerala, the former Chief Secretary to Government
of Kerala, the Director, Power and Energy Pvt. Ltd. Singapore and the Managing
Partner of Mala Export Corporation Limited, Madras. We are not dealing with
these documents in extenso as the learned Single Judge has analysed them and we
agree with his analysis." The allegations made in the FIR were stated to
be based on the report submitted by the CAG for the year ending on 31st March, 1993. Against the judgment of the
Division Bench M.Vijay Kumar preferred a special leave petition in this Court
being SLP (Criminal) No.54/95 which was dismissed on 10.3.1995 without assigning
any reasons.
The
appellant laid down his office as Chief Minister in March, 1995 whereafter
elections to the State Assembly were held, in which the party and the Front of
the appellant lost and the Left Democratic Front Government came into power on 20th May, 1996. On 18.6.1996 the
Commissioner-Secretary requested the Director of Vigilance, Investigation to
submit enquiry report to the Government at the earliest after conducting a
preliminary enquiry into the allegations raised in the Legislative Assembly
pertaining to Palmolein deal in which corruption worth crores of rupees had
been alleged.
The
Superintendent of Police, Vigilance is stated to have conducted a preliminary
enquiry upto March, 1997 whereafter Criminal Case No.1 of 1997 at Vigilance
Cell, Police Station, Kowdiar, Thiruvananthapuram, Kerala was registered under
Sections 13(1)(d) of the Prevention of Corruption Act and under Section 120B
IPC against 7 persons including the appellant.
The
appellant filed the Criminal Miscellaneous Case No.1353/97 under Section 482 of
the Criminal Procedure Code in the High Court of Kerala praying therein that
all proceedings pursuant to Crime Case No.1/97 be quashed. The High Court
dismissed the petition vide its order dated 1.7.1997 on the ground that as
fresh matter had come into the notice of the investigating agency, there was no
bar for it to register a case and conduct investigation. The present appeal has
been filed against the aforesaid order of the High Court.
The
grievance of the appellant that order dated 18.6.1996 (Annexure R-2) is
actuated by extraneous considerations and intended to harass a political
opponent of a ruling party is without any substance inasmuch as in that letter
the Commissioner-Secretary had requested the Vigilance to conduct a preliminary
enquiry with respect to the allegations raised in the Legislative Assembly and
submit a report. It is worth considering that despite dismissal of the
petitions filed against the appellant by the High Court and this Court, the
matter pertaining to the purchase of Palmolein deal had not been shelved and
was very much alive so far as the State Assembly is concerned. The appellant,
when he was the Chief Minister, had declared in the Assembly for probe into the
allegations and a Committee on Public Undertakings was seized of the matter.
The
letter dated 18.6.1996 produced in this Court, for the first time, was not the
basis of challenging the First Information Report lodged and the subsequent
proceedings conducted against the appellant before the High Court. In the said
letter it is stated:
"I
am to request you to submit enquiry report to Government at the earliest after
conducting a preliminary enquiry into the allegation raised in the Legislative
Assembly that there is corruption of crores of rupees behind the agreement
signed on the 29th November, 1991 for import of 15000 toness of pamolein to Kerala
from Malesia through the Power and Energy Company Singapore. Attention is also
invited to the report of the Comptroller and Auditor General relating to the
issue. It is also brought to your notice that records related to the matter are
available in your office." From the contents of the letter it cannot be
inferred that any direction had been issued for registration of a criminal case
against the appellant and others. What the Commissioner-Secretary had desired
was the conducting of preliminary enquiry which could not be prayed to be shut
because as apprehended it could lead to the registration of a case. The FIR
indicates that while conducting a preliminary enquiry into the allegations of
corruption in the matter of Palmolein directly by the State Government, various
details were revealed which showed the commission of offences punishable under
various provisions of law.
After
referring to the earlier judgments in the case, the learned Single Judge of the
High Court noted the summary@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
of the first information statement of Shri M. Vijay Kumar@@ JJJJJJJJJJJJJ dated
11.4.1994 and compared it with the FIR (Annexure P-8) dated 21st March, 1997
and rightly concluded:
"By
an assessment of both the first information statement (Annexure-D) and first
information report (Annexure A) it is seen that the present first information
report is definitely based on further materials and enquiry.
The
obvious difference between these two sets of first information statement and
first information report are:
i) In
the FIR filed by Superintendent of Police, Vigilance it is clearly found that
there was no real requirement for direct import by the State Government;
ii)
The import was far in excess of the requirement in the State for the projected
period;
iii)
The agreement was made without due sanction from the State Government, and
Finance Department without specifying the price;
iv)
Import conditions stipulated by the Government of India were violated in
reference to price limited, terms of payment and fixation of retail price for
distribution through the P.D.S.
v)
While fixing the price in terms of USD as against the Indian rupee resulted
increase in the value of USD was known/anticipated at the time of agreement
resulting in huge loss to the Government;
vi) As
against the delay from the agreed period upto February, 1992 the supply till
March 1992 the penal clause for the delay was not invoked.
These
were the relevant and important specific information/allegation as against the
earlier First Information Statement of Shri M. Vijayakumar. According to
respondents 2 and 3, the present First Information Report is based on a
preliminary enquiry conducted in the matter from 9.8.1996 to March, 1997 during
which period they examined 63 documents including 18 documents mentioned
earlier in the judgments." After going through the pleadings of the
parties and keeping in view the rival submissions made before us, we are of the
opinion that the registration of the FIR against the appellant and others
cannot be held to be the result of malafides or actuated by extraneous
considerations. The menance of corruption cannot be permitted to be hidden
under the carpet of legal technicalities. In such matters probes conducted are
required to be determined on facts and in accordance with law. The allegations
of malafides were, admittedly, not the basis for challenging the registration
of the FIR in the High Court. If during the conduct of a preliminary enquiry
the commission of an offence comes to light on the basis of new materials, the
respondent-officials were obliged to register a case and present it in a
competent court of jurisdiction for holding of trial and adjudication. The
Government order (Annexure R-1) is not shown to have been used against the
appellant in any way. The aforesaid order in fact protects the interests of the
officials saving them from unnecessary harassment.
Mere
apprehension of the order being used against some persons is no ground to hold
it illegal or unconstitutional particularly when its legality or
constitutionality has not been challenged. Prima facie it does not hamper or
interfere with the statutory functions of an investigating officer who has,
otherwise, statutory rights to hold and complete the investigation in
accordance with the provisions of the Code of Criminal Procedure. Our
observations with respect to the legality of the Government order are not
conclusive regarding its constitutionality but are restricted so far as its
applicability to the registration of the FIR against the appellant is
concerned. We are, therefore, of the opinion that the aforesaid Government
order has not been shown to be in any way illegal or unconstitutional so far as
the rights of the appellant are concerned.
During
the course of hearing it was pointed out that the investigation has since been
completed and the final report submitted in the court of competent jurisdiction
as permitted by this Court vide its order dated 11.12.1999. In this view of the
matter we do not propose to comment on the merits of the case, lest, it may
prejudice the parties at the trial.
Under
the circumstances the appeal is dismissed with the observation that the
appellant and other accused persons shall be at liberty to raise all such pleas
of law and fact as are available to them during the trial of the case before
the competent court of jurisdiction dealing with it and such pleas shall be
considered and decided notwithstanding the observations, if any, made by the
High Court on merits.
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