ACHUTHANANDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The above two original petitions, both of them, have been filed under Article 227 of the Constitution of India, impeaching the order passed by the [inquiry Commissioner and Special Judge, Thrissur, accepting the report filed after further investigation in a crime involving offences under the Prevention of Corruption Act, 1998. After completing investigation and filing report, dated 1-11-1999, later, investigating agency requested permission for further investigation and it was accorded by the court. Report filed after further investigation dated 13-5-2011 was found not satisfactory to the court and, thereupon, it was returned with some directions. There were some challenges against those orders passed by the Special Judge before this Court, but, accepting the representation made on behalf of investigating agency that further investigation will be completed within a time frame, setting aside some of the findings and observations made by Special Judge those proceedings were terminated directing speedy completion of investigation. The investigating agency completed further investigation over the crime and filed its report dated 6-1-2012 before the court. Acceptance of that report was challenged by the respective petitioner in the two Original Petitions, filing separate petitions contending that a fair and proper investigation complying with the directions given under the previous order passed by the Special Judge, and having regard to the materials gathered in the crime, with reference to facts and circumstances of the case showing the joint culpability of then Finance Minister (C.W. 23) with the other accused named has not been done in the case. Special Judge negativing such challenges passed the order accepting the report. That order is impeached invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Case presented by both petitioners in their respective original petition to impeach Ext. P-12 order is common, though some of the documents produced as exhibits and marked have some variations. Since more or less a common case is presented by both petitioners to impeach Ext. P-12 order, for the sake of convenience, the exhibits marked as Ext. P-1 to P-12 in O.P. 1880/2012 and Ext. P-13 and P-14 in O.P. 1915/2012 are referred to as such hereinafter. If reference to any document produced in O.P. 1915/2012, not covered by the other O.P. emerges for consideration it shall be separately adverted to.

(2.) A brief resume of the allegations imputed and circumstances giving rise to registration of the crime involved and what transpired after its registration, may be advantageous since the case has a long chequered career with challenges raised over one or other issues before this Court and also Apex Court more than once. The case relates to import of 15,000 Metric Tons of palmolein to the State through a Company named M/s. Power and Energy Private Ltd. in a contract entered with the Civil Supplies Corporation. The Comptroller and Auditor General of India (CAG), in his report dated 11-2-1994 for the year ending on 31st March, 1993, pointed out some irregularities in the above import. Allegation of corruption had been raised earlier over the import in the Legislative Assembly and also print media against the Chief Minister, Minister of Civil Supplies and some senior Government officers. State suffered a loss of Rs. 2.32 Crores in the import made, allegedly, violating the rules and regulations, and the then Chief Minister, Minister of Civil Supplies and some senior public servants criminally conspired with two Directors of the company, which imported the Palmolein oil, causing wrongful gain to all of them and corresponding wrongful loss to the State was the gist of allegation. All the above persons committed corruption, was the imputation raised, and that gave genesis for registration of the crime later. A writ petition was filed before this Court by one Kallada Sukumaran for issue of orders or directions for registration of a crime. That writ petition was dismissed. Subsequently, one Vijayakumar, MLA, presented a petition before the Director of Vigilance for registering a crime. That request was turned down by the Director of Vigilance. A writ petition filed by the above MLA, and later, writ appeal by him, seeking registration of a crime received the same fate. A special leave petition challenging the order passed in the writ appeal was also dismissed. Then, there was a change in Government in the State, and the Director of Vigilance was directed to conduct a preliminary enquiry into the import of palmolein, with respect to the allegations raised in the Legislative Assembly imputing corruption in such import. After conducting a preliminary enquiry and on the report thereof, a crime was registered as Crime No. 1 of 1997 under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 120B of Indian Penal Code naming seven persons as accused. After investigation of the crime, report under Section 173(2) of the Code of Criminal Procedure, for short the Code, was filed before the Enquiry Commissioner and Special Judge. Thiruvananthapuram, indicting the accused, eight in number, for offences under Section 13(1)(d) and 13(2) of Prevention of Corruption Act read with 120B of IPC. The accused proceeded were a former Chief Minister, former Minister of Civil Supplies, former Chief Secretary, former Additional Chief Secretary, former Secretary (Food and Civil Supplies), former Managing Director, Kerala Civil Supplies Corporation, and, two Directors of the Company, Power and Energy Pvt. Ltd., Singapore, which imported palmolein under a contract with the Civil Supplies Corporation. The Enquiry Commissioner and Special Judge took cognizance of the case on the report filed for offences punishable under sections 13(1)(d) read with section 13(2) of Prevention of Corruption Act and Section 120B of the Indian Penal Code.

(3.) The 1st accused in the crime, former Chief Minister, who then was a Member of Parliament, filed a writ petition before this court challenging the absence of sanction to prosecute him which was turned down. That challenge was pursued before Apex Court, and pending such appeal he passed away, and the charge against him got abated.