THIRUVANANTHAPURAM: The legal opinion given by a former Judge of the Kerala High Court became crucial in the Governor’s decision to give his nod to prosecute Pinarayi Vijayan in the SNCLavalin case. Governor R S Gavai makes note of this on pages 19 and 20 of the 35-page `Proceedings of the Governor of Kerala’ in which he accorded sanction for prosecution.
The former Judge’s legal opinion reads thus: ``Taking into account the facts of the case discernable from the records available especially the two judgments of the Division Bench of the High Court of Kerala and the voluminous evidence and materials produced by the investigating agency along with their report seeking sanction for prosecution, the Governor may have to act in his own discretion as a matter of propriety.’’ ``In view of the overwhelming material on record showing that a prima facie case is made out against the accused, the recommendation of the State Government, without considering all relevant factors, has to be treated as unreasonable and irrational. In such cases the Governor has to act in his own discretion and grant sanction. In my considered opinion this is a fit case for granting sanction for prosecuting Shri Pinarayi Vijayan.’’ The Governor goes on to explain that he has ``anxiously considered the legal opinion tendered by the former Judge of the Kerala High Court on 4th June, 2009.’’ He also refers the order of the Division Bench of the High Court which concluded that `before ordering an inquiry by CBI, the High Court must reach a conclusion that there is a prima facie case made out as was held by the Supreme Court in Secretary v Sahngoo Ram Arya (2002) 5 SCC 521. We have already held that there is sufficient material available on record which may entail an order of investigation by the Central Bureau of Investigation.’ The Governor points out that ``it is an undisputed preposition that if a prima facie case clearly made out, sanction to prosecution is liable to be granted irrespective of the fact that high functionaries are also involved in the commission of the offence. When there is overwhelming material in support of the request made by the investigating agency sanction cannot be lightly refused.’’ ``There is overwhelming material in support of the allegations made by the CBI to prima facie make out a case involving cheating and conspiracy against the accused...
The sanctioning authority is also not expected to evaluate and critically examine the entire evidence at this stage. It may be noted that the final report submitted by the investigating officer will have to pass through the judicial scrutiny of the trial Judge at the stage of framing charges.’’
