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1997 (4) Crimes 348
KERALA HIGH COURT
P. Shanmugam, J.
K. Karunakaran - Petitioner,
Versus
State of Kerala - Respondent
Criminal Misc. Case No. 1353 of 1997
Decided on 1-7-1997
Counsel for the parties:
For the Petitioner: Mr. John Varghese, Advocate & Mr. M.N. Sukumaran Nayar. Sr. Advocate.
For the Respondent: Mr. M.K. Damodaran. Advocate General & Mr. Kallada Sukumaran, Director General of Prosecution.
Held: The principle of res judicata as indicated in Section 11 of the CPC is technical rule applicable to civil litigation. However as the said rule is founded on public policy cannot be treated as inadmissible in dealing with criminal cases. Therefore, while applying this rule courts should see that the test of the technical rule should be satisfied strictly. Secondly the provisions of Cr. P.C. giving freedom for investigating agencies to proceed on fresh materials subject to Section 300 of the Cr. P.C. should not be whittled down by such application. (Para 21)
The earlier petition was by a private party and his prayer was to register the case. The orders that were challenged viz., the communication dtd. 16-4-1994 and 4-7-1994 did not refuse to register the case. According to them the complaint was based on irregularities pointed out CAG report and therefore, they could not act upon it. This will not bind or stop them from registering a case if additional materials are brought to their knowledge for their action. (Para 23)
Applying the known tests of res judicata in this case it could be seen that the litigating parties and their pleadings are not same. The subject matter was not finally decided. The Division Bench did not rule out additional or fresh materials to substantiate and reactivate the police for an action. (Para 24)
The issue before the Division Bench was whether the complaint of Sri M. Vijaya kumar can be considered as information relating to the commission of a cognizable offence to compel the police to register the case. The Division Bench held that from the materials made available there is no offence made out and jurisdiction under Art. 226 of the Constitution of India cannot be exercised. The issue before this Court now is whether FIR filed by the police discloses a cognizable offence. This issue is different from the one raised before the Division Bench. If the police have subsequently, registered the F.I.R. Statement of Sri M. Vijayakumar without any fresh materials, the principle of the res judicata may be invoked. But the police have after enquiry on their own registered a case, but on the subject matter raised earlier. I do not find any scope for applying the larger principle of res judicata even to a limited extent. Any I other construction would lead to disastrous consequences. It would be easy for any third party to approach a Court with ipsi dixit materials and get the petition dismissed so as to for close any further investigation on the said matter. (Paras 26 & 27)
After careful consideration of the F.I. Statement and FIR as pointed earlier the present FIR is not based on the report of the CAG or on the materials relied on earlier. This FIR makes out new and clear and categorical allegations and also based on additional materials as it could be made out by reading of FIR itself. A mere look of the FIR discloses clearly a commission of cognizable offence. This fact is not in dispute. The power of the police for repeated investigation on discovery of fresh facts is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. In the light of additional and fresh materials the present FIR makes out a cognizable offence and. Therefore, the earlier findings would not impair or bar to the proceedings. (Para 29)
Result: Petition to quash F.I.R. dismissed.
ORDER
P. Shanmugam. J - This petition is to quash the First Information Report and all further proceedings pursuant thereto under Section 482 of the Code of Criminal Procedure.
2. Petitioner was the Chief Minister of State of Kerala during the relevant period 1991 to 1995. The allegations in the FIR (Annexure-A) relate to a contract entered into between the Managing Director of the Kerala State Civil Supplies Corporation and Mis. Power and Energy (P) Ltd. Singapore on 29-11-1991 for the purchase and import of 15:000 Metric tonnes of Palmolein. It is alleged that the petitioner as accused No.1 alongwith accused 2 to 5 by abusing their official position as public servants entered into a criminal conspiracy among them selves and with A-6 and A-7 the private firms caused pecuniary loss of about Rs. 2.8 crores and corresponding pecuniary gain to the accused and thereby committed the offence of criminal misconduct and criminal conspiracy.
3. The Superintendent of Police, Vigilance Department, conducted preliminary enquiry in the matter from 9-8-1996 to March, 1997. The said enquiry revealed that the accused have committed the offences under Section 13(2) read with Section 13(1) of Prevention of Corruption Act, 1988 and Section l20-B, IPC and accordingly the case was registered as Cr. 1/97 at Vigilance Special Cell Police Station, Thiru-vananthapuram and further investigation continued. It is at this stage, the above Crl.M.C. has been filed.
4. The substantial and the only argument advanced by learned Senior Counsel. Mr. M.N. Sukumaran Nayar, is that on the very same allegations, an FI Statement filed by one Sri M. Vijayakumar, then M.L.A. and presently the Speaker of the Legislative Assembly was found by a Division Bench of this Court that they do not make out prima facie case of commission of any cognizable offence which requires investigation. Learned Senior Counsel took me through the complaints filed by Sri M. Vijayakumar, M.L.A. and the decision of the Single Bench and the Division Bench. According to him, the finding of the Division Bench have concluded the issue and are no longer res integra for the respondents to commence the investigation. The SLP filed against Writ Appeal judgment was dismissed by the Supreme Court. He further submits that the Division Bench had rightly or wrongly decided substantially on the issue and the law of precedents has to be applied to debar a fresh FIR. The FIR and investigation pursuant thereto by the respondents is, therefore contrary to the larger principle of res judicata, amounting to abuse of the process of Court and hence it must be quashed.
5. Learned Director General of Prosecution Mr. Kallada Sukumaran, while opposing the stand of the petitioner submitted that earlier Original Petition filed as a public interest litigation has its origin from an earlier O.P. No. 3813 of 1994 which was dismissed by this Court on 4-4-1994 holding that the peitioner's contention therein was on the basis of the report of the Comptroller and Auditor General thereinafter referred to as the CAG). According to the judgment the report by itself was not sufficient to come to a conclusion that an offence has been made out under Section 3 of the Prevention of Corruption Act.
6. Thereafter, one Sri M. Vijayakumar, a Member of Kerala Legislative Assembly presented a petition dated 15-4-1994 before the Superintendent of Police, Vigilance to register a case based on certain allegations of corruption in the import of palmolein. The Superintendent of Police informed Sri Vijayakumar on 16-4-1994 (AnnexureE) thatin the light of G.O. (P) No. 65/92/ Vig, dated 12-5-1992 necessary action on the said petition can be taken only on receipt of the orders of the Director of Vigilance and accordingly the said petition was forwarded to the Director of Vigilance Investigation. By a communication dated 4-7-1994, to Deputy Superintendent of Police informed Sri M. Vijayakumar that the allegations were purely based on the observations co
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