IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 W.P.(C).No.12285 of 2011(S) ---------------------------------------- PETITIONER:- --------------------- NAVODHANAVEDI (REG.NO.K/722/2000), ETTUMANOOR - 686 631, KOTTAYAM, REPRESENTED BY ITS SECRETARY, C.J.THEVARA, THEVARA HOUSE, GHANDI NAGAR, KOTTAYAM. BY ADV. SRI.KURIAN CHEMBOLA MATHAI SMT.AYSHA RAHMAN RESPONDENT:- ----------------------- DIRECTOR OF VIGILANCE AND ANTI CORRUPTION BUREAU, CENTRAL INVESTIGATION UNIT, NEW DELHI - 110 001. ADVOCATE GENERALSRI.C.P.SUDHAKARA PRASAD APPEARED. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON 12/04/2011 DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. --------------------------------------- W.P.(C).No.12285 of 2011-S --------------------------------------- Dated this the 12th day of April, 2011 JUDGMENT J.Chelameswar, C.J. The writ petition is filed with the prayers as follows: “(i) issue a writ of mandamus or any other appropriate writ order or directions directing the respondent to take necessary steps to conduct a proper investigation for bringing the truth out of the shadow, based on the aforesaid facts revealed in connection with bribing the retired judges of High Court of Kerala namely Mr.Justice K.Narayana Kurup and Mr.Justice K.Thankappan. (ii) call for the records of clippings from the television channel Indiavision where they telecasted the facts revealed by Mr.Rauf, about the back door method adopted for brushing aside ice cream parlous sex scandal case including the disclosure regarding the bribing of judges along with the clipping of reply said by justice Narayana kurup in the matter. (iii) grant such other further reliefs as that are warranted under law as this Hon'ble Court may deem fit and proper in the interest of justice”. W.P.(C).No.12285/2011-S - 2 - 2. Petitioner is a Society, registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The writ petition terribly falls short of the requisite standards of pleading. Vague, imprecise and incoherent statements are made in the writ petition. To demonstrate the same, we extract paragraphs 3, 4 and 5 of the petition: “3. All over India, the leading medias brought the ice cream parlour case to the minds of the people once again. The fourteen year old sex scandal case involves a high political icon. The story behind brushing aside the ice cream parlour sex scandal case was revealed through the media by one Rauf, who is the co-brother of former minister, P.K.Kunjalikutty. He explained through the media the foul play behind the disappearance of the case from the judicial process and how the name of the former minister was deleted from the array of the accused. 4. All the leading media published the news and the same seized the public attention. Mr.Rauf also revealed how they bribed two High Court Judges Mr.Justice K.Narayana Kurup and Mr.Justice K.Thankappan at that time, when the cases came up before the Hon'ble High Court of Kerala. The aforesaid news was published in all leading dailies. A copy of the daily, the Hindu dated 30.1.2011 which published the above said disclosure is produced herewith and the same may be marked Exhibit P1 herein. 5. The Corruption story telecast through news channel Indiavision on 1.2.2011 revealed that the High Court Judges delivered their judgment in connection with the ice cream parlour sex scandal case in favour of the former minister Mr.P.K.Kunjalikutty after receiving an W.P.(C).No.12285/2011-S - 3 - amount of Rs.40 lakhs as bribe in equal share. The disclosure made was not from a stranger but from the co-brother of the ex-minister. Mr.Rauf in a press conference at Kozhikode held that he with the help of then Additional Advocate General of Prosecution Mr.K.C.Peter and an unnamed additional advocate general managed to bribe the Judges. Mr.K.C.Peter prior to this confession made his deposition to this effect through the Indiavision television channel which was later on rejected by K.C.Peter. The latter disclosure of Rauf gives supportive evidence to disclosure of K.C.Peter”. The petitioner refers to a case, notoriously known in the State of Kerala as “Ice Cream Parlour Case”. The petitioner proceeds on the presumption that everybody in the State knows the full details of the said case. From the scanty materials available on record and more particularly from the reported judgment of this Court in Ajitha v. State of Kerala [2006 (1) KLT 339], it appears that Sessions Case No.124 of 2002 on the file of Additional Assistant Sessions Court-II, Kozhikode was nicknamed by the media as Ice Cream Parlour Case. Para 2 of the said judgment states as follows: “The case was registered against 16 accused whose names and addresses are mentioned in Ext.P1 charge (produced in W.P.(C). No.30176 of 2005) framed on the basis of the final investigation report filed by the police. The case is now pending as S.C.No.124 of 2002 on the file of the Additional Assistant Sessions Court II, Kozhikode. The above case was nicknamed by the media as “Ice Cream Parlour Case”. W.P.(C).No.12285/2011-S - 4 - 3. Originally the writ petitioner did not even give the basic details of the above mentioned Sessions Case. Subsequently, he filed an application to receive certain additional documents - some newspaper cuttings and two reported judgments of this Court, of which the above referred is one. Except a vague statement in para 3 extracted above that one Rauf (who is alleged to be a co-brother of a former Minister P.K.Kunjalikutty) explained the foul play behind the judicial process by which the above mentioned Kunjalikutty's name was deleted from the array of accused, no further information is available from the petition. A further vague statement is that the above mentioned Rauf revealed how two former Judges of this Court are bribed. In para 4, the petitioner makes a reference to Exhibit P1, two news reports from the Hindu newspaper dated 30.1.2011. The said news reports deal with two statements made by two prominent leaders of Kerala, one the Home Minister of Kerala Sri.Kodiyeri Balakrishnan and another one Sri.Pinarayi Vijayan, the State Secretary of the Communist Part of India (Marxist). No doubt, both the above mentioned news items make reference to some disclosures allegedly made by the above mentioned Rauf; but the exact content of the statement made by Rauf is still not available on record. W.P.(C).No.12285/2011-S - 5 - 4. The ostensible purpose of the present writ petition is to seek an enquiry into the allegations of corruption on the part of two former Judges of this Court named in the writ petition; but unfortunately they are not even made party respondents to the writ petition. In so far as the allegation of corruption by the two former Judges, the petitioner pleads as follows: “6. It is revealed by Sri.Rauf through the media that as a result of the bribe, Justice Narayana Kurup while holding Office as Judge of High Court of Kerala, dismissed a petition for CBI Enquiry regarding the ice cream parlour case filed by the Organization 'Anweshi'. The sex scandal case points to the involvement of former minister P.K.Kunjalikutty, wherein the victim, one minor girl named Rajeena was raped by him. Reaction of Justice Narayana Kurup through the channel media was surprising - “Since Sri.Kunjalikutty is dignitary I found it improper to make a CBI probe in this matter”. That was the words of Justice Narayana Kurup in reply to the above disclosure. 7. Mr.Justice Thankappan while holding office as Judge of High Court delivered judgments in the cases favouring the former Minister, allowing the transfer of the case from the court where it was pending, to the favourable court as prayed from the side of the accused, changed the prosecutor and also ordered to conduct the in camera trial favour of the accused. The appeal of the ice cream parlour case filed by the prosecutor was considered and decided favourable to the side of the accused by Justice K.Thankappan. The news impact of the serious disclosure published in The Hindu Daily dated 2.2.2011 is produced herewith and same may be marked as Exhibit P2 therein. The aforesaid acts of the Judges are offences coming under section 7 and 13 of Prevention of Corruption Act. The said acts allegedly committed are absolutely W.P.(C).No.12285/2011-S - 6 - illegal and are acts done in course of the official duty as a public servant holding the office of a Judge and as such no sort of privileges cover the act. 8. By the bribe and prejudicial detrimental judgments the very basic principle of remedy of appeal till the apex court have become fruitless. 9. Now a big shadow of doubt is created tarnishing the faith in the judiciary by the above said acts of the delinquent judges and under such circumstances the respondents are bond and could have enquired and investigated upon the facts revealed and if found so, could have taken steps to register a case against the above retired judges, to bring the truth of the allegation before the public. The situation should be read along with the present circumstances of India facing threats by the acts of terrorism, corruption and immorally among the political set up as a whole and by which the people are put to the want of social security badly”. 5. In the normal course the writ petition should have been thrown out at the threshold on the ground of insufficient and imprecise pleadings which do not disclose any cause of action. However, in view of the allegation made in the writ petition against two former Judges of this Court, rejection of the writ petition on the simple ground of insufficient and imprecise pleading is bound to be interpreted by unscrupulous elements as an attempt by the institution to cover up the alleged wrongs committed by the members of the legal fraternity. 6. The allegation against Sri.Justice Narayana Kurup is that he dismissed a writ petition wherein the relief sought for was W.P.(C).No.12285/2011-S - 7 - entrustment of the above mentioned Ice Cream Parlour Case to Central Bureau of Investigation. The judgment of Justice Kurup is reported in Anweshi W.C.Centre v. State of Kerala [1998 (2) KLT 454]. By the said decision, three Original Petitions were disposed of by common judgment as, according to the learned Judge, the 'facts and reliefs in all these Original Petitions are the same'. i.e. 'for the issuance of a writ of mandamus directing the State of Kerala and the Director General of Police to entrust the investigation of Crime No.282/1997 of the Nadakkavu Police Station Kozhikode to the Central Bureau of Investigation'. According to the said judgment, the substance of the writ petitions is as follows: “The petitioner herein alleges the occurrence of a sex scandal in which a lady by name Sreedevi, owner of an Ice Cream Parlour procured girls for important politicians, bureaucrats and many others. The allegations are set out in details in the Original Petition itself. The substance of the allegation is that those involved in the scandal consist of the cream of the society including an Ex-Minister, Politicians, I.A.S. and I.P.S. Officers etc. While the Inspector General of Police, North Zone is in charge of the investigation, the same is moving at a snail's pace thereby allowing the culprits to escape. Since high and influential persons are involved, the State Police are not likely to investigate the scandal freely, impartially and in an unbiased manner is the complaint projected”. W.P.(C).No.12285/2011-S - 8 - It can be seen from the above extract that there was an allegation in the writ petition that a former Minister is also involved in the said scam, though the name of the Minister is not mentioned in the judgment. The learned Judge declined to grant the relief and dismissed the petitions for the reasons recorded by him. 7. We are neither called upon to sit in judgment over the correctness of the said judgment, nor is it legally permissible for us to examine the correctness of the said judgment in a collateral proceedings. We are only concerned, for the purpose of the present writ petition, with the allegation that such a judgment was rendered on an extraneous consideration of accepting a bribe. 8. Similarly, the allegation against the other learned Judge Shri.Justice K.Thankappan is that he delivered a judgment, which is reported in 2006 (1) KLT 339, for extraneous considerations, i.e. bribe. By the said decision, a bunch of cases were disposed of together. The cases were two writ petitions – W.P. (C).Nos.30176 of 2005 and 31108 of 2005. The first of the above mentioned two writ petitions was filed by Mrs.K.Ajitha, who was the informant in Crime No.282 of 1997 of Nadakkavu Police Station, Kozhikode. The second of the said writ petitions was filed by Sri.V.S.Achuthanandan, the then Leader of Opposition and W.P.(C).No.12285/2011-S - 9 - presently the Chief Minister of Kerala. It appears from the said judgment that the prayer in the above mentioned two writ petitions was identical. By the said writ petitions, the petitioners pray for the removal of one Sri.K.V.Joseph, who was the Special Public Prosecutor appointed by the Government of Kerala in exercise of Section 24(8) of the Code of Criminal Procedure to prosecute S.C.No.124 of 2002 on the file of Additional Assistant Sessions Court II, Kozhikode on behalf of the State of Kerala. Such a relief was sought on the ground that the above mentioned Mr.Joseph resorted to some conduct which was objectionable. It appears that the said Public Prosecutor held a press conference and made some remarks about the Presiding Officer who was conducting the trial of Sessions Case No.124 of 2002. The further details of the allegations made in the said two writ petitions are not necessary for the purpose of the present writ petition. 9. Both the writ petitions in substance were allowed, by directing the removal of Sri.K.V.Joseph from the post of Special Public Prosecutor in S.C.No.124 of 2002 and, consequently, directing the State of Kerala to appoint a qualified Special Public Prosecutor to conduct the said Sessions Case. W.P.(C).No.12285/2011-S - 10 - 10. Apart from the above mentioned two writ petitions, two Criminal Miscellaneous Cases, Nos.3662 of 2005 and 3732 of 2005, were also disposed of by the same common judgment. The above mentioned two Criminal Miscellaneous Cases were filed by the 7th and 12th accused respectively in S.C.No.124 of 2002 on the file of Additional Assistant Sessions Court II, Kozhikode. While Crl.M.C.No.3662 of 2005 is filed praying that the trial of the above mentioned Sessions Case be conducted in camera, with a consequential prayer is to direct the print and electronic media not to publish any proceedings of the Court until final judgment is pronounced, whereas Crl.M.C.No.3732 of 2005 is filed with a prayer to transfer the trial of the above mentioned Sessions Case to any other competent Court outside Kozhikode district. 11. Both the above mentioned Criminal Miscellaneous Cases were allowed, directing (1) that the trial of the above mentioned Sessions Case shall be conducted in camera and (2) also transferring the Sessions Case to the Principal Assistant Sessions Court, Kozhikode. We fail to understand as to how it can be alleged that by the second of the above mentioned two judgments Sri.Justice Thankappan can be said to have favoured any accused in S.C.No.124 of 2002. W.P.(C).No.12285/2011-S - 11 - 12. Coming to the allegation against Sri.Justice Kurup, he rendered a judgment by which the learned Judge declined to give a direction that Crime No.282 of 1997 of Nadakkavu Police Station, which culminated into the above mentioned Sessions Case 124 of 2002, to be investigated by the C.B.I. The law of this country is that crimes are to be investigated by police forces established and functioning under the local laws of the State in accordance with the procedure established under the Code of Criminal Procedure, 1973. In the legal sense there is no body called “C.B.I.”. The investigating agency created by the Delhi Special Police Establishment Act, 1946 came to be referred to as C.B.I. over a period of time. The authority of the C.B.I. to investigate a crime is restricted. As a matter of fact, only certain chosen cases are entrusted to the C.B.I. for investigation by the Government of India, though the basis of such a choice has often been controversial. The law also is well settled that in a given case a State Government can always request the C.B.I. to investigate a particular crime which is otherwise required to be investigated by the police force of the State. The State has a discretion in such matters. Directing the investigation of a crime by C.B.I. bypassing the normal investigation process of the crime by the local police is W.P.(C).No.12285/2011-S - 12 - an exception to the general principles of law. Courts would normally be slow to grant such direction as a matter of course unless they are compelled by strong reasons. In his judgment, Justice Kurup recorded his satisfaction with the investigation process in the above mentioned criminal case and, therefore, declined to refer the matter to C.B.I. As we have already mentioned, such a conclusion is a matter of opinion. If anybody is of the opinion that the conclusion of the learned Judge is erroneous in law, the right course would have been to carry the matter in appeal and test the correctness of the said judgment. Assuming for the sake of argument that two views are possible on the issue decided by this Court, the mere possibility of the second view, in our opinion, does not necessarily lead to a conclusion that the judgment is prompted by improper motives. As a matter of fact, the matter was carried in appeal (W.A.No.2727 of 1998), which was dismissed by a Division Bench of this Court by judgment dated 28th August, 1998. The dismissal itself was the subject matter of S.L.P.(Crl.).No.3725 of 1998, which also stood dismissed by the Supreme Court by order dated 13.10.2003. 13. The petitioner bases his entire case on two alleged statements given by one Rauf and another K.C.Peter, former Additional Director General of Prosecutions of the State of Kerala. W.P.(C).No.12285/2011-S - 13 - We say “alleged statements” for the reason that not even a full text of the statements allegedly made by the above mentioned two persons is placed on record. For the sake of argument we proceed on the basis that the above mentioned two persons made some averments, either asserting or suggesting improper conduct on the part of the above mentioned two Judges, we are of the opinion that this Court would not be justified in entertaining the present writ petition. By entertaining the present writ petition, this Court would be embarking upon a perilous course of action endangering the entire judicial system for the following reasons: (i) Petitioner, who approached this Court by way of public interest litigation, must make cogent averments with appropriate supporting material establishing the existence of a genuine public interest which calls for an enquiry into the averments. In the instant case, not even the basic material, i.e., alleged statements of the above mentioned two persons, Rauf and K.C.Peter, are placed on record. (ii) Assuming for the sake of argument that there is some material in the above mentioned alleged statements, either asserting or suggesting improper motive on the part of the above mentioned Judges and such assertion or suggestion is evidence W.P.(C).No.12285/2011-S - 14 - admissible in a court of law, such statements made after the lapse of a decade after the occurrence of the events would lose most of their evidentiary value. (iii) Going by the incoherent averments made in the writ petition, the above mentioned Rauf and Peter appear to be accomplices in the alleged crime of bribing Judges of this Court. It is settled law of this country that the evidence of accomplice* in a crime must be approached with great caution. --------------------------------------------------------------------- * An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not, however, be right to expect that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case. If such a view is adopted it will render the evidence of the accomplice wholly superfluous. On the other hand, it will not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. It is well settled that the appreciation of approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. (vide Piara Singh v. State of Punjab (AIR 1969 SC 961). W.P.(C).No.12285/2011-S - 15 - 14. Therefore, to initiate any enquiry on the basis of the present writ petition as sought by the petitioner would only have catastrophic effect on the entire legal system. At the same time, we are also conscious of the fact that the allegations such as the one contained in the writ petition if have any element of truth also cause a great deal of damage to the institution if ignored totally. In view of the nature of the allegations contained in the writ petition and kind of public attention the entire episode drew on the eve of the various publications referred to in the writ petition, the learned Advocate General appeared in the Court, though the State of Kerala is not made a party respondent in the writ petition and made a statement at the Bar that the Government has taken due note of the various allegations appearing in the media and the State is examining the entire episode. He further stated that during the course of such examination if the State comes to a conclusion that there is some legal basis to probe into the allegations of judicial impropriety on the part of any former Judge of this Court, the State would certainly undertake appropriate legal action in accordance with law, if necessary after obtaining the approval of the Chief Justice of India. The learned Advocate General also made a submission that though in view of the judgment of the Supreme W.P.(C).No.12285/2011-S - 16 - Court reported in K.Veeraswami v. Union of India [(1991) 3 SCC 655] no prior approval of the Chief Justice of India is required to investigate the allegations constituting an offence committed by a retired Judge of a High Court, having regard to the sensitivity of the matter and its wider ramifications, the State of Kerala believes that it is in the larger interest of the Constitutional system that the matter is placed before the Chief Justice of India before any final decision is taken. 15. We, therefore, see no reason to entertain the writ petition. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vku/-