[Kerala Gold Smuggling] Kerala HC Dismisses Plea Seeking Investigation Against Kerala CM & His Former Secretary[Read Order]

Noting that the Petitioner had failed to produce an iota of evidence to support the allegations, the division bench comprised of Chief Justice S. Manikumar and Justice Shaji P. Chaly held,

"The petitioner has solely relied on the statement of the Leader of the Opposition and contended that if it is true, the matter requires investigation. As such, he has no evidence or material, and that is why he has prayed for an interim direction, as stated above. Investigation is the function of the police and writ court cannot be converted as an investigation agency."

The Petitioner, a resident of Cherthala town in Kerala, had moved the High Court alleging that Shivashankaran was a kingpin behind all the abovementioned scams and that Chief Minister Vijayan, though may not be directly involved in the nitty-gritties of transactions, was certainly fully aware of the incidents and further promoted the same by abusing his official position as the CM.

He had therefore sought for registration of FIR against both of them, allegedly for smuggling of gold to India using the diplomatic channel and the Sprinkler, BevQ App and eMobility Consultancy scams, which constitutes for offences under the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974, Indian Penal Code, 1860, Prevention of Corruption Act, 1988 and the Customs Act, 1962.

It was contended that these allegations were first leveled by the Leader of Opposition in the State Assembly and if the same are true, they constitute corruption and crime of a scale unheard in the history of Kerala, by any political leader/bureaucrats.

Opposing the plea, the Advocate General submitted that in order to grant the reliefs as sought for by the Petitioner, the materials made available and the pleadings made should instill confidence in the Court.

To the contrary, he pointed out, the Petitioner had solely relied on the statement of the Leader of the Opposition and had failed to produce any supporting materials.

"As rightly pointed out by the learned Advocate General, no document has been produced by the petitioner along with the writ petition to substantiate the same.

…the petitioner has only mentioned about the names of the alleged scams, viz., Sprinklr, BevQ App. and e-Mobility Consultancy. There are no details in the Statement of facts as to what they are. Except stating that the Hon'ble Chief Minister is involved, abused his position, and his office is alleged to be nerve center, there is nothing in the Statement of facts indicating, which action or inaction of the Hon'ble Chief Minister or the others, against whom allegations have been levelled, have indulged in corruption," the bench concurred.

The Petitioner had contended that it was not possible for him to produce evidence, and that is why he had sought for a direction to the Inspector General of Police and/or the Director, Vigilance and Anti Corruption Cell, to take custody and/or produce before the Court as and when required, the entire papers, proceedings, correspondence and communications, all electronic data, including records of video and telephonic calls concerning the aforesaid scams, and in particular, the gold smuggling scam, involving the Respondents.

Rejecting this argument, the court clarified that the appropriate procedure for the Petitioner, if the Police had refused to register a FIR, was mentioned in the CrPC.

"If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases," the Court held.

In view of a plethora of precedents, setting out the procedure that has to be adopted by a complainant if the Police refuse to register an FIR, the bench reiterated,

"After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C."

In the present case, the Court noted,

"Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.

…since the petitioner has got an efficacious and alternate remedy available under the Code, if there is inaction on the part of the Station House Officer in not registering a case on the basis of the complaint given by him, the petitioner cannot take recourse to this Court for issuance of writ of mandamus or other writ…"

Reliance was placed on Secretary, Minor Irrigation and Rural Engineering Services, UP & Ors. v. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521, where on consideration of the question as to whether High Court can direct enquiry by CBI under Article 226 of the Constitution, the Supreme Court had held that the High court must reach a conclusion based on the pleadings and material on record that a prima facie case made out against a person and merely because a party made allegations against a person, High Court cannot direct CBI to investigate as to whether a person committed an offence as alleged or not.

"Remedy under Article 226 of the Constitution of India is extraordinary. Exercise of power to entertain a writ petition arises if only the person, who alleges inaction on the part of the statutory authorities, has no other alternative and efficacious remedy under the Statute.

…Merely because allegations are levelled against the Hon'ble Chief Minister and others and in as much as the allegations relate to abuse of power, it cannot be contended that the nature and magnitude require issuance of a writ as the only remedy available to the petitioner. However, intricate the magnitude and the nature of the offences alleged, the Code of Criminal Procedure has envisaged a procedure to be followed and, therefore, the same cannot be given a go-by, and a writ petition is not the proper remedy," the bench concluded.

Case Details:

Case Title: Michael Varghese v. Pinarayi Vijayan & Ors.

Case No.: WP (C) No.14316/2020

Quorum: Chief Justice S. Manikumar and Justice Shaji P. Chaly

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