Case: K Karunakaran Vs. State Of Kerala

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 Ms. 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. 381394, 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 underArticle 226 of the Constitutionof 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 thatthe 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 attract seems to be the 3rd respondent-the Chief Minister of the State.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 120-B 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. 6592Vig. 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. 988294 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 Honble Judges constituting the Bench who observedhave 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 Manging 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 hisallegations 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. 5495 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 120-B, IPC against 7 persons including the appellant.4. The appellant filed the Criminal Miscellaneous Case No. 135357 under Section 482 of the Criminal Procedure Codein the High Court of Kerala praying therein that all proceedings pursuant to Crime Case No. 197 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.

Reasoning: 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.