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KERALA HIGH COURT
S. Manikumar & Shaji P. Chaly , JJ.
Michael Varghese —Petitioners
Versus
Honourable Shri Pinarayi Vijayan
& Ors. —Respondents
WP(C).No.14316 of 2020 (S)
Decided on 22.7.2020
Counsel for the Parties:
For the Petitioner: by Advs. Sri. Mathews J. Nedumpara Sri. P. Bijimon
For the Respondent Nos. 3, 4, 12, 13 & 16 by Advocate General Sri. C. P. Sudhakara Prasad, Sri. K. K. Ravindranath, Addl.Advocate General Sri. P. Narayanan, Senior Govt. Pleader Sri. V. Manu, Senior Govt. Pleader
For the Respondent Nos. 7, 8, 9, 11 & 14 By Advs. Sri. P. Vijayakumar, ASG of India Sri. Jaishanker V. Nair, CGC.
For the Respondent No 10: By Sei. Arjun Ambalapatta, Se. Public Prosecutor for NIA.
IMPORTANT POINT
Remedy under Article 226 of Constitution of India is extraordinary. Exercise of power to entertain a writ petition arises if only person who alleges inaction on part of statutory authorities, has no other alternative and efficacious remedy under Statute.
Headnote:
(A) Constitution of India – Article 226 – Public Interest Litigation – Gold smuggling scam – Petition seeking direction for CBI/NIA investigation – Petitioner has only mentioned about names of alleged scams – There are no details in Statement of facts as to what they are – Except stating that Chief Minister is involved, abused his position, and his office is alleged to be nerve centre, there is nothing in Statement of facts indicating, which action or inaction of Chief Minister or the others against whom allegations have been levelled, have indulged in corruption, attracting provisions of Prevention of Corruption Act, 1988 as well as Indian Penal Code, 1860 – Although the writ petition has been directed to be instituted as a Public Interest Litigation, averments remain the same – Instant writ petition does not satisfy requirements of a Public Interest Litigation. (Paras 95 and 98)
(B) Criminal Procedure Code, 1973 – Sections 156(3) and 173 – Constitution of India – Article 226 – Crime investigation – Gold smuggling scam – Petition seeking direction for CBI/NIA investigation – If police did not register a case on the basis of a complaint filed by complainant, then he has got a remedy in Code of Criminal Procedure, by approaching jurisdictional Magistrate under Section 156(3) of Code or even file a private complaint under Section 190 read with Section 200 of Code – Even if Station House Officer commits a mistake in arriving at conclusion that allegations are not sufficient to attract ingredients of commission of a cognizable offence, even this Court cannot invoke power under Article 226 of Constitution of India, go into question as to whether non satisfaction by Station House Officer is proper or not, to issue a writ of mandamus or other writs directing Station House Officer to register a crime as it is a matter to be considered by Magistrate under Section 190 read with Section 200 of Code – Since petitioner has got an efficacious and alternate remedy available under the Code, if there is inaction on part of Station House Officer in not registering a case on the basis of complaint given by him, petitioner cannot take recourse to this Court for issuance of writ of mandamus or other writ, to Station House Officer to register a crime and to investigate case as claimed by petitioner – Remedy under Article 226 of Constitution of India is extraordinary – Exercise of power to entertain a writ petition arises if only person who alleges inaction on part of statutory authorities, has no other alternative and efficacious remedy under Statute – Writ Petition dismissed. (Paras 104, 105, 106, 111 and 114)
Result: Writ Petition dismissed.
JUDGMENT
Dated this the 22nd day of July, 2020 S. Manikumar, CJ Instant public interest writ petition is filed for the following reliefs:
a) To issue a writ in the nature of mandamus, directing the State Government to hand over investigation of gold smuggling scam, the Sprinklr, BevQ App., and e-Mobility Consultancy scams, in which the Hon’ble Chief Minister Sri. Pinarayi Vijayan and Sri. M. Shivashankaran, IAS, Former Principal Secretary to the Hon’ble Chief Minister of Kerala and Secretary to the Government of Kerala, Department of Information Technology, (respondent Nos.1 and 2) respectively, are allegedly involved, to the Central Bureau of Investigation/National Investigation Agency (respondent Nos.11/10) and the latter to conduct a just, fair and impartial investigation into the crimes and further to direct all other agencies, the State Police, the Customs and the State Government, to fully cooperate with the CBI/NIA.
b) Without prejudice to the above said prayer, petitioner has also sought for a writ of mandamus or any other appropriate writ, order or direction, directing respondent Nos.12, 13 and 16 - Director General of Police, Trivandrum; Director, Vigilance and Anticorruption Bureau, Trivandrum; and The Additional Director General of Police, Crime Branch, Trivandrum, to register an FIR based on the allegation that the Sri. M. Shivashankaran, Senior Officer of the Indian Administrative Service, Sri. Pinarayi Vijayan, Hon’ble Chief Minister of Kerala, and/or those who are close to them and involved in smuggling of gold to India using the diplomatic channel and the Sprinkler, BevQ App and e- Mobility Consultancy scams, and to conduct an effective, meaningful, independent and impartial enquiry, unmindful of the fact that those who could be involved in the crimes are in the helm of affairs of the State, and/or to further direct the State and Central Governments to facilitate such an investigation, nay, direct the State Government to handover the investigation to the CBI.
c) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing respondents 12, 13 and 16, namely, the CBI and/or the NIA and/or the Crime Branch to register an FIR, and conduct an effective, meaningful, independent and impartial enquiry into the smuggling of gold to India, by abusing the diplomatic channel and the Sprinklr, e-Mobility Consultancy scams, unmindful of the fact that those, who could be a part of the crimes, are in the helm of the affairs of the State, in matters which fall undoubtedly within their exclusive jurisdiction.
2. Short facts leading to the filing of the writ petition are that,- instant writ is the second petition, in the nature of ‘qui tam action’ under Article 226 of the Constitution of India, which the petitioner is instituting for remedies by way of a writ of mandamus and, in particular, registration of an FIR, and thereby, setting of the criminal law in motion against Sri. Pinarayi Vijayan, the Hon’ble Chief Minister of Kerala and Sri. M. Shivashankaran, Secretary in-charge of the Hon’ble Chief Minister’s office, 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.
3. Petitioner has further stated that it is the fundamental principle of law that it is the duty of every citizen to initiate criminal law in motion, and where the authorities responsible for putting the criminal law in motion fail or abdicate the responsibility, to seek judicial redressal by initiating a ‘qui tam action’- qui tam pro domino rege quam pro se ipso in hac parte sequitur, he, who sues in this matter for the king as well as for himself - and seek a remedy in the nature of writ of mandamus. In the month of April, 2020, petitioner had to institute a petition under Article 226 of the Constitution of India, since police had failed to register an FIR against respondents 1 and 2
