K. Karunakaran v. State of Kerala, (SC) BS25787
SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and R.P. Sethi, JJ.

Criminal Appeal No. 86 of 1998. D/d. 29.3.2000

K. Karunkaran - Appellant

Versus

State of Kerala and another - Respondents

For the Appearing Parties :- M/s. K.K. Venugopal, P.S. Poti, P.P. Rao, N. Natarajan, Kallada Sukumaran, Sr. Advocates, with S.S.H. Rizvi, R. Sasiprabhu, John Verghese, Manish Garg, Anees Ahmed, Ms. Aditi Singh, K.M.K. Nair, Vipin Nair, Ms. Lansinglu Rongmei, Ms. Malini Poduval, Manu Krishnan and Anshu Mahajan, Advocates.

Criminal Procedure Code, 1973, Section 154 - Prevention of Corruption Act, 1988, Section 13(1)(e) and (d) - Indian Penal Code, Sections 409 and 406 - Double jeopardy - Allegations of corruption against the accused during the period when accused was Chief Minister - Case not registered against him - Petitions before High Court praying for registration of case also dismissed - Thereafter opposition coming into power - Enquiry conducted by Vigilance and found fresh material against the accused - FIR validly registered - No ground to quash - Plea that registration of case was contempt - Plea not tenable.

[Paras 7 and 8]

Cases Referred :-

Vineet Narain v. Union of India and another, 1998(1) SCC 226.

JUDGMENT

R.P. Sethi, 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 and others v. Union of India and another, 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.

2. 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 Palmolien. 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 Palmolien 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 that commission of any offence. It was further observed that :

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 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 worth 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 :

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.

3. 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 Section 13(1)(d) of the Prevention of Corruption Act and under Section 120B, Indian Penal Code against 7 persons including the appellant.

4. The appellant filed the Criminal Miscellaneous Case No. 1353/57 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.

5. 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.

6. 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 :

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.

7. After referring to the earlier judgments in the case, the learned Single Judge of the High Court noted the summary of the first information statement of Shri M. Vijaykumar dated 11.4.1994 and compared it with the FIR (Annexure P-8) dated 21st March, 1997 and rightly concluded :

8. 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 mala fides or actuated by extraneous considerations. The menace 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 mala fides 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.

9. 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.

10. Under the circumstances the appeal is dismissed with the observation that the appellant and other accessed persons shall be at liberty to raise all such please 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.

Appeal dismissed.