In a significant observation, the Supreme Court's special vacation bench on Wednesday said the Prevention of Money Laundering Act (PMLA) cannot become a super-administrator mandating the registration of FIRs by state agencies on the ED's recommendation, and cautioned the ED against extending its hand beyond statutory limits.
It stayed the probe against former Kerala CM Pinarayi Vijayan for a week in the CMRL-Exalogic bribery case.
A vacation bench of Justices Joymalya Bagchi and V Mohana made the scathing observation while granting temporary relief to former Kerala Chief Minister Pinarayi Vijayan, his daughter Veena Thaikkandiyil and son-in-law Mohammed Riyas in the CMRL-Exalogic bribery case.
The bench stayed the investigation against Vijayan and his family for a week to enable them to approach the division bench of the Kerala High Court against the single-judge order directing the registration of the FIR.
The apex court said that the state had already formed an SIT on the ED's communication under Section 66(2) of the PMLA to conduct a preliminary inquiry, but the High Court acted in haste and ordered the registration of an FIR on a writ petition filed within one day of the SIT's formation.
"The FIR is registered. That is it. We will allow the FIR to exist, but we will stall the investigation. This is not a court-directed investigation. This is an ED request under Section 66(2). Do your PMLA examination, file a complaint under Section 4. Even if you have got 417, you have got a scheduled offence. Go ahead with prosecution. Don't use the process of statutory powers to meddle in the domain of other entities. We are fully clear about what you have done, what the High Court has done," the Court said.
It said complainant KM Shajahan filed the plea without even waiting for the SIT to conclude its preliminary probe.
"Please understand, we are not against FIR investigation. It's about giving an opportunity even to somebody. The ED has full power to investigate hawala dealers and former Chief Ministers. Nothing stops it. It has done its statutory duty. It intimated the state. Now it is for the state to act as per law. Whether the state is acting as per law, the High Court could not have directed an investigation when it relied on Charanjit Lal," the bench said.
It flagged the issue of whether the state is bound to register an FIR under Section 66(2) following such communication.
"Our problem is that we read judgments like statutes. Vijay Madanlal Choudhary has been conflated to become a mandate on the state under Section 66(2). The judgment says it will be information to the agency as per law. Now what 'as per law' means is for the agency to decide," Justice Bagchi said.
The Court said Vijayan was not heard before the FIR direction was issued and that he had the locus to file an appeal.
"We set aside the impugned order and permit the petitioners to pursue an appeal before the Division Bench. To enable them, we direct that the investigation in the impugned FIR shall remain stayed for a week," it ordered.
