Sethi, J. - (1.) Referring to letter dated 18-6-1998 filed as Annexure R-2 with the counter affidavit in this Court, terming it to be actuated by extraneous considerations and assailing the Government Order dated 12th May, 1992, (Annexure R-1) as illegal, Shri K. K. Venugopal, Senior Advocates appearing for the appellant has prayed for quashing of the FIR No. 1/97 (Annexure P-8) and subsequent proceedings initiated against the appellant. It is submitted that the source of power for registering the FIR referable to the aforesaid Government order being illegal and violative of the mandate of judgment of this Court in Vineet Narain v. Union of India, (1998) 1 SCC 226, the appellant cannot be subjected to harassment of a criminal trial. The impugned FIR is stated to be amounting to overriding the judgments of the High Court of Kerala and this Court passed in earlier litigation praying for registration of the FIR against the appellant. The registration of the FIR has been termed to be amounting to contempt of Court having been filed without any new material. Political rivalry is alleged to be the prime consideration for registration of the case against the appellant.
(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 M/s. Power and Energy Pvt. Limited, Singapore for the purchase of import of 15,000 MT of Palmolein. The Comptroller and 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 Palmolein 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. 3813/94, 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 under Article 226 of the Constitution of India as the report submitted by the CAG had a definite purpose to achieve and that the said report by itself did not reveal the commission of any offence. It was further observed that: "From the 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 attack seems to be the 3rd respondent the Chief Minister of the State." Shri M. Vijay Kumar MLA of Thiruvantha-puram 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) and (d) of the Prevention of Corruption Act and Sections 406, 409, 420, 201, 34 and 120B 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 the report lodged by him in view of GO(P) No. 65/92/Vig. 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. 9882/94 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 Sections 154 of the Code of Criminal Procedure had not been filed before the officer in charge 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-12 and P-17 were shown to the Hon'ble Judges constituting the Bench who observed: "We have 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 Managing 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 his analysis." The allegations 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. 54/95 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 Governor 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 up to March, 1997 whereafter Criminal Case No. 1 of 1997 at Vigilance Cell, Police Station, Kowdiar, Thiruvananthapuram, Kerala was registered under Sections 13(1)(d) of the Prevention of Corruption Act and under Section 120-B, IPC against 7 persons including the appellant.;