KOCHI: The state government on Tuesday informed the Kerala High Court that there was nothing wrong with conducting a preliminary inquiry before registering an FIR based on information provided by the Enforcement Directorate (ED) in the CMRL payoff case involving Leader of Opposition and former chief minister Pinarayi Vijayan, his daughter Veena T and son-in-law and MLA P A Mohamed Riyas.
The submission came after the counsel for Pinarayi and others made a similar argument in an appeal challenging a single judge’s order directing the Vigilance and Anti-Corruption Bureau (VACB) to register an FIR against them in the case. The HC division bench, comprising Justice K Natarajan and Justice Johnson John, reserved its order on their applications seeking nod to file writ appeals against the judgment.
Meanwhile, the counsel for one of the appellants sought an interim stay on the single judge’s order, but the court declined. Pinarayi and the others had argued that they were not parties to the original writ petition and had not been heard, even though the HC order directly affected them.
Advocate General (AG) Jaju Babu told the bench that the government had decided to order a preliminary inquiry into the allegations in the information provided by the ED as the agency had not furnished to the state police several other materials connected with the case.
When the court asked whether the state government was aggrieved by the single judge’s order, the AG said, “We wanted to conduct a preliminary inquiry, but the single judge set it aside and directed the VACB to register an FIR. We have complied. The government has only one stand. An investigation must be fair, and fairness must not only be done but must also be seen to be done,” the AG submitted.
When the court asked why the government appointed an inquiry officer, the AG said the intention was to ascertain whether the available material disclosed a cognisable offence.After opening the sealed cover submitted by the ED, the single judge had expressed doubt as to whether the statements contained in the materials had been furnished to the government, the AG said. The cover contained diary pages and some documents.
“We wanted to ascertain through a preliminary inquiry if a cognisable offence might have been committed. If a cognisable offence is disclosed, the government will definitely register an FIR. The state has the discretion to decide whether or not to register an FIR...There is nothing wrong with conducting a preliminary inquiry when there is doubt. What was wrong with our decision?” he asked.
Jaju also supported the argument by Pinarayi’s counsel that the single judge should not have entertained the matter as a public interest litigation (PIL), contending that it ought to have been considered by a bench headed by the chief justice. He submitted that he had objected to the petition on the ground that it was a PIL.
The single judge had virtually accepted that position by treating the petitioner as a whistleblower, he argued.
“Every citizen can seek to set the criminal law in motion. But once the ED has set the issue in motion, it is not appropriate to proceed in this manner,” the AG submitted.
He also referred to a contempt case faced by petitioner K M Shajahan before the single judge, stating that he had subsequently tendered an unconditional apology. Such a person should not be entertained as a bona fide litigant, Jaju argued.
The court observed that the scope of an appeal could be limited when the judgment under challenge had already been implemented by the government.
“Can the accused demand a preliminary inquiry? Following the single judge’s order, an FIR has been registered. What remedy is available to the appellants now?” it asked.
The appellants’ counsel submitted that, had an FIR been registered by a station house officer, they could have approached the HC to challenge it on the ground that there was insufficient material to justify the registration.
In this case, the single judge directed registration of an FIR on a writ petition without hearing them. Hence, the appellants contended, their opportunity to challenge the FIR on those grounds, the counsel submitted.
