Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (crl.) 86 of 1998
PETITIONER:
K. KRUNAKARAN
Vs.
RESPONDENT:
STATE OF KERALA & ANR.
DATE OF JUDGMENT: 29/03/2000
BENCH:
G.B. Pattanaik & R.P. Sethi.
JUDGMENT:
SETHI,J
L...I...T.......T.......T.......T.......T.......T.......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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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.