Accused have no right to be heard before FIR, Kerala HC says in rejecting Pinarayi Vijayan’s appeal bid in corruption case

The writ petitioner challenged the State’s failure to register an FIR on information forwarded by the Enforcement Directorate under Section 66(2) of the Prevention of Money Laundering Act, 2002.

Although the petitioner had sought registration of an FIR, the State Police Chief appointed a special investigation team to conduct a preliminary inquiry.

The learned Single Judge found that the information disclosed sufficient material to register an FIR and directed the Vigilance and Anti-Corruption Bureau to do so.

Persons who were not parties to the writ petition, including the former Chief Minister and a former Minister, sought leave to appeal, contending that the direction prejudiced them because it was made without hearing them and without a preliminary inquiry.

By the time the leave applications were heard, the State had registered two FIRs in compliance with the judgment.

1. Whether the applicants had established a prima facie case that the judgment under challenge affected their legal rights.

2. Whether an accused person in a corruption case has a right to be heard before registration of an FIR.

3. Whether an accused person in a corruption case can require a preliminary inquiry before registration of an FIR.

Section 66(2) of the Prevention of Money Laundering Act, 2002 permits the forwarding of information to other authorities; the Court considered whether the information and accompanying material disclosed a cognizable offence warranting registration of an FIR.

Relying on State of Karnataka v. T.N. Sudhakar Reddy, State of Karnataka v. Channakeshava H.D., and Pradeep Nirankarnath Sharma v. State of Gujarat, the Court stated that a preliminary inquiry in corruption cases is not invariably mandatory and may be dispensed with where detailed material prima facie discloses a cognizable offence; an accused public servant has no right to be heard before registration of an FIR.

The Court also noted that an FIR may be challenged under Article 226 before cognizance, or proceedings may be challenged under Section 528 of the BNSS after cognizance.

It distinguished State of Punjab v. Davinder Pal Singh Bhullar and Divine Retreat Centre v. State of Kerala on the basis that the judgment directed registration of an FIR on the information received, rather than making an individual direction against the applicants or their activities.

The Court found that the Single Judge had considered the information forwarded under Section 66(2) of the PML Act and concluded that it disclosed sufficient material for registration of an FIR.

The applicants’ status as persons subsequently named in the FIR did not give them a right to participate in the decision to register it, nor to insist on a preliminary inquiry where the material disclosed cognizable offences.

The judgment did not foreclose their constitutional or statutory remedies to challenge the FIR or subsequent proceedings; accordingly, they had not shown that the judgment itself impaired a legal right sufficient to justify leave to appeal.

It held that the applicants had not established a prima facie or arguable case for leave, that an accused in a corruption case has no right to be heard before FIR registration, and that a preliminary inquiry is not mandatory where the information discloses cognizable offences.

The applications for leave to appeal were dismissed and, consequently, the proposed appeals were also dismissed.