Kerala High Court
Joy Kiatharath vs State Of Kerala on 7 August, 2013
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
FRIDAY, THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935
Crl.MC.No. 3536 of 2013 (D)
---------------------------
(CRIME NO. 656/2013 OF KONNI POLICE STATION , PATHANAMTITTA)
PETITIONER:
---------------
JOY KIATHARATH, AGED 63 YEARS, S/O.ANTONY,
KAITHARATH HOUSE, MONODY, VELLIKULANGARA PO
THRISSUR.
BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE
ADV.SRI.M.R.DHANIL
RESPONDENTS/STATE & COMPLAINANT:
-----------------------------------------------
1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.
2. ADDITIONAL DIRECTOR GENERAL OF POLICE
SOUTH ZONE
(HEAD OF SPECIAL INVESTIGATION TEAM OF SOLAR PANEL SCAM)
VAZHUTHACAUD, THIRUVANANTHAPURAM - 680 010
3. SUB INSPCTOR OF POLICE
KONNI POLICE STATION, PATHANAMTHITTA DIST.
4. M/S. MALLELIL INDUSTRIES LTD.
ATTACHAKKAL P.O, KONNI
REP. BY MANAGING DIRECTOR R.SREEDHARAN NAIR
MALLELIL HOUSE, ATTACHAKKAL KONNI
PATHANAMTHITTA DIST.
R1 TO R3 ADVOCATE GENERAL SRI.K.P.DANDAPANI
R4 BY ADV. SRI.O.V.MANIPRASAD
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
09/10/2013, THE COURT ON 11/10/2013 PASSED THE FOLLOWING:
Crl.MC.No. 3536 of 2013 (D)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
-------------------------------
ANNX.1: TRUE COPY OF THE CERTIFICATE OF HONOUR GRANTED TO THE
PETITIONER AS "SERVANT OF THE POOR".
ANNX.1I: TRUE COPY OF THE COMPLAINT CMP.NO.4754/2013 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT.
ANNX.1II: TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN TIMES OF
INDIA DAILY ON 21.7.2013
ANNX.1V: TRUE PROCEEDINGS OF THE 2001 IEEE WORKSHOP ON
INFORMATION ASSURANCE AND SECURITY, UNITED STATES MILITARY ACADEMY.
ANNX.IV(A): TRUE COPY OF THE PAPER PRESENTED IN THE DEPARTMENT OF
COMPUTER SCIENCE, UNIVERSITY OF AUCKLAND.
ANNX.V: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DATED 7-8-2013
ANNX.V(A): TRUE COPY OF THE ACKNOWLEDGEMENT OF RECEIPT ISSUED BY
THE ZONAL OFFICE DATED 7-8-2013 TO THE PETITIONER.
ANNX.V1: TRUE COPY OF THE SAID LETTER DATED 20-4-2013 SHOWING THE
AUTHOR AS OOMMEN CHANDY, HON'BLE CHIEF MINISTER OF KERALA.
ANNX.VI1: TRUE COPY OF THE REPORT PUBLISHED IN KAUMUDI ONLINE ON
20-6-2013
ANNX.VI1(A): TRUE COPY OF THE PHOTOGRAPH PUBLISHED BY
TELEVISION CHANNELS SHOWING THE HON'BLE CHIEF MINISTER WITH SARITHA
NAIR.
ANNX.VII1: TRUE COPY OF THE REPORT PUBLISHED ON 22-6-2013 IN
DESABHIMANI DAILY
ANNX.IX: THE NEWS PAPER REPORT PUBLISHED IN WEB PORTAL OF THE
TIMES OF INDIA DATED 16-6-2013
ANNX.X: TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN
DESABHIMANI DAILY ON 24-6-2013
ANNX.X1: TRUE COPY OF THE NEWS PAPER REPORT REGARDING THE
ALLEGED STATMENT MADE BY SARITHA NAIR BEFORE THE COURT PUBLISHED ON
21-7-2013 IN HINDU DAILY.
ANNX.XI1 - TRUE COPY OF THE NEWS PAPER REPORT REGARDING THE ALLEGED
STATEMENT MADE BY SARITHA NAIR BEFORE THE COURT PUBLISHED ON 21-7-
2013 IN INDIAN EXPRESS
(CNTD.........2)
Crl.MC.No. 3536 of 2013 (D)
ANNX-XIII: COPY OF THE NEWSPAPER REPORT PUBLISHED IN THE HINDU
DAILY DTD. 6.9.2013.
ANNX-XIV: COPY OF THE RELEVANT PAGES OF TENDER NO.23/2013.
ANNX-XV: COPY OF THE LETTER DTD.14.8.2013 OF SHRI.P.C.GEORGE, MLA.
2ND RESPONDENT(S)' EXHIBITS:
------------------------------------
ANNX-I: TRUE COPY OF THE ORDER NO.D1-57609/2013 DTD. 14.6.2013.
ANNX-II: GOVERNMENT ORDER G.O.(RT).NO.2263/2013/HOME
DTD.17.8.2013.
ANNX-III: COPY OF THE PROCEEDINGS ENTRUSTING INVESTIGATION.
.....
// TRUE COPY //
P.A TO JUDGE.
"C.R"
HARUN-UL-RASHID, J.
------------------------
Crl.M.C No.3536 Of 2013
----------------------
Dated this the 11th day of October, 2013.
O R D E R
The Crl.M.C is filed by the petitioner, claiming to be a pro bono publico, seeking the following reliefs:
"i) To direct the 2nd respondent to immediately verify the computer hard discs and servers supporting the CCTV cameras and web cameras in the Secretariat and office of the Chief Minister and retrieve the entire data, which is allegedly deleted or overwritten, to verify whether the allegations made by the 4th respondent in Crime No.656/2013 of Konni Police Station that he has met the Hon'ble Chief Minister along with Saritha Nair on 9.7.2012 is correct or not and proceed with the investigation in a proper manner.
ii) To direct the 2nd respondent to verify the computer hard discs and servers in the office of the Hon'ble Chief Minister to verify whether any letter has been generated from that office to the Secretary, Department of New and Renewable Energy, Government of India regarding the solar power generation scheme and proceed with investigation in a proper manner.
::2::
Crl.M.C.No.3536 Of 2013
2. The case of the petitioner in brief is as follows:
A company floated by one Saritha Nair and Biju Radhakrishnan, in the name and style as "Team Solar" had cheated large number of entrepreneurs and industrialists, offering alternate renewable solar energy. The revelations made by investigative journalists and certain political leaders brought to light that the aforesaid two persons have high political connections including close relationship with top Government functionaries as well as Hon'ble Chief Minister of Kerala. It was revealed that Saritha Nair and others used to have constant telephonic contact on mobile phones with the mobile phones of Tenny Joppen, Jikku Mon as well as Salim Raj who are in constant company of the Chief Minister when he is within the State and one Thomas Kuruvila, who accompanies the Chief Minister when he is in New Delhi. The 4th respondent herein had filed a private complaint before the Judicial First Class Magistrate Court-II, Pathanamthitta as Crl.M.P.No.4754/2013. A copy of the said complaint is marked as Annexure-II. Annexure-II complaint reveals that Sreedharan Nair had alleged that the aforesaid ::3::
Crl.M.C.No.3536 Of 2013 Saritha Nair and Biju Radhakrishnan offered him land in KINFRA Park at Palakkad for establishing a solar energy plant and for that purpose, they had taken Sreedharan Nair to the office of the Chief Minister. Annexure-II complaint reveals that Saritha Nair had taken Sreedharan Nair to the office of the Chief Minister at 8:00 p.m on 9.7.2012. It is stated that the Chief Minister as well as the officers had encouraged him regarding the proposal made by Saritha Nair. Judicial First Class Magistrate Court-II, Pathanamthitta had referred Annexure-II complaint to the Police. The Konni Police had registered a Crime numbered as Cr.No.656/2013. There are altogether 32 criminal cases throughout State of Kerala against Saritha Nair, Biju Radhakrishnan, Salu Menon etc. by various entrepreneurs and industrialists alleging cheating and other criminal offences. The Government of Kerala had constituted a special investigating team led by the 2nd respondent, who are investigating the said offences. During the course of investigation, the investigating team made Tenny Joppen as accused and he was arrested. It is revealed that there is a clear intentional omission to investigate ::4::
Crl.M.C.No.3536 Of 2013 into the entire allegations obviously to avoid inclusion of top politicians in the criminal case. The 4th respondent who is the complainant in Crime No.656/2013 had given a statement on oath before the Judicial First Class Magistrate Court-II, Pathanamthitta under Section 164 of the Cr.P.C. The 4th respondent thereafter given media interview stating that he deposed before the learned Magistrate that he was taken to the office of the Honourable Chief Minister by Saritha Nair on 9.7.2012 at 8:00 p.m and he met the Chief Minister in company with Saritha Nair. The 4th respondent also revealed that the Hon'ble Chief Minister assured him of the credentials of "Team Solar" and encouraged him to do business with the aforesaid Saritha Nair. It is stated that since 24 CCTVs are installed from the gates of the Secretariat to the office of the Chief Minister, even in the office of the Chief Minister, and if the allegations made by the 4th respondent are true, it will be seen in the `Servers' and `Computer Hard Discs' which supports the said web cameras and CCTVs. It is stated that if the aforesaid data is retrieved from the hard disc and servers, which supports the ::5::
Crl.M.C.No.3536 Of 2013 CCTVs and web cameras, the statement made by the 4th respondent can be verified to be true or false. The petitioner produced copy of the proceedings of 2001 IEEE Workshop on Information Assurance and Security, United States Military Academy as Annexure-IV and the copy of the paper presented in the Department of Computer Science, University of Auckland as Annexure-IV(a). It is stated that these documents would clearly show that if Saritha Nair accompanied Sreedharan Nair and met the Chief Minister as stated by Sreedharan Nair in his 164 Statement and subsequently in the media report, the said fact would have been recorded in the web camera in the Chief Minister's office and 24 CCTVs installed from the gates of the Secretariat to the office of the Chief Minister. The petitioner also made a representation before the 2nd respondent seeking retrieval of data stating that events on 9.7.2012 can be retrieved from the computer hard disc using modern technology.
3. At the time of the hearing of the case, petitioner's counsel confined his arguments to the first prayer in the Crl.M.C. Thus, the only prayer canvassed is to direct the 2nd respondent to ::6::
Crl.M.C.No.3536 Of 2013 verify the computer hard discs and servers and supporting CCTV cameras and web cameras in the Secretariat and office of the Chief Minister and retrieve the entire data, which is allegedly deleted or overwritten to verify whether the allegations made by the 4th respondent in Crime No.656/2013 at Konni Police Station, that he has met the Hon'ble Chief Minister along with Saritha Nair on 9.7.2012 is correct or not. The petitioner sought for verification of computer hard discs and servers and supporting CCTVs and web cameras only for the purpose of verifying whether the allegations made by the 4th respondent that he has met the Chief Minister along with Saritha Nair on 9.7.2012 is correct or not.
4. Annexure-II is the copy of the complaint filed on12.6.2013 numbered as Crl.M.P.No.4754/2013 on the file of the Judicial First Class Magistrate Court, Konni, filed under Section 190 of Cr.P.C. I have meticulously read and understood the case set up by Sreedharan Nair in Annexure-II complaint. The sequents and events that took place during the course of transaction between the accused and the complainant is pleaded ::7::
Crl.M.C.No.3536 Of 2013 eventwise and datewise. In Annexure-II complaint it is stated that during May, 2012, he had occasion to read advertisement by "M/s.Team Solar Renewable Energy Solutions", that thereupon he had contacted accused No.1, Saritha Nair and accused No.2, Biju Radhakrishnan and there was a lengthy discussion regarding the installation of a solar plant. The accused told Sreedharan Nair that they are ready to install the solar plant in KINFRA park at Palakkad. In paragraph 2 of Annexure-II complaint it is further stated that thereafter Saritha Nair took the complainant to the Chief Minister's Office. In the office he had occasion to talk with Chief Minister and officials about the project. The accused assured the complainant about the help from the Government side. Relying on the assurances made by the accused, the complainant reposed faith in the accused and thereupon he took interest to install the solar plant. In paragraph 3 it is further stated that the accused with an intention to cheat the complainant and to obtain unlawful gain, again met the complainant on 22.6.2012 and held lengthy discussion about the installation of the plant. In paragraph 4 it is stated that after the ::8::
Crl.M.C.No.3536 Of 2013 discussion on 22.6.2012, on 25.6.2012, the accused and complainant entered into an agreement for the installation of solar plant. On that day, the complainant handed over cheque Nos.1222 & 1223 for Rs.15 Lakhs each and the amounts covered by the said two cheques were encashed by the accused. In paragraph 8 it is stated that the accused have committed offence punishable under Section 420 r/w 34 IPC.
5. The 2nd respondent filed a detailed statement. The 4th respondent also filed a statement. Subsequently, he filed an affidavit on 21.9.2013. Neither in the statement nor in the affidavit, the complainant has a case that the Chief Minister is also involved in the conspiracy or he has any role to play in the matter of execution of agreement arrived at between the accused and 4th respondent. The complainant has no case that any person other than accused has committed the offence under Section 420 r/w 34 IPC. The accused in the complaint are Saritha S.Nair and Biju Radhakrishnan.
6. Admittedly, only once there was meeting with Chief Minister and the meeting was alleged to be held on 9.7.2012. On ::9::
Crl.M.C.No.3536 Of 2013 a plain reading of Annexure-II complaint, it is crystal clear that even according to the complainant he met the Chief Minister with Saritha Nair on a date prior to 22.6.2012. In the complaint no date is mentioned regarding the meeting with the Chief Minister. It is clear from the complaint that the alleged meeting was before 22.6.2012. On 22.6.2012, there was a lengthy discussion regarding the setting up of solar plant. It is stated in paragraph 3 that, on that day, after discussion, he was convinced about the project sponsored by the accused and he was made to believe that the accused will extend all help for the completion of the project. Thereafter, on 25.6.2012, the accused went to the 4th respondent's establishment. The accused again offered him all help for installing the solar plant. Thereupon, the 4th respondent entered into an agreement with Saritha Nair in her capacity as South Zonal Head of the company.
7. It is contended by the petitioner that in the 164 statement filed by the 4th respondent before the Judicial First Class Magistrate Court, Pathanamthitta, it is averred that Sreedharan Nair was taken to the office of the Chief Minister by ::10::
Crl.M.C.No.3536 Of 2013 Saritha Nair on 9.7.2012 at 8:00 pm. and he met the Chief Minister in company with Saritha Nair. It is further stated that the Chief Minister had offered him of the credentials of "Team Solar" and encouraged him to do business with Saritha Nair. Crl.M.C is filed on the basis of the statement given by Sreedharan Nair under Section 164 Cr.P.C to verify whether the allegations made by the 4th respondent that he had met the Chief Minister along with Saritha Nair on 9.7.2012 is correct or not. As I said earlier, the alleged meeting with Chief Minister, if true, was on a date prior to 22.6.2012. Therefore, verification of the facts, subsequently developed in Section 164 Cr.P.C statement that he met the Chief Minister along with Saritha Nair on 9.7.2012 is not true and therefore, need not be probed.
8. In paragraph 4 of the affidavit the complainant stated that he was taken to the office of the Chief Minister by the accused on 9.7.2012 at 8:00 pm. Apart from the said averment, there is no averment in the affidavit indicting the Chief Minister or any other person. In paragraph 7 of the memorandum of Crl.M.C and in the reply affidavit filed by the petitioner it is stated ::11::
Crl.M.C.No.3536 Of 2013 that the Chief Minister had assured the 4th respondent of the credentials of "Team Solar" and encouraged him to do business with Saritha Nair. In the statement and in the affidavit filed by the complainant it is not stated that the Chief Minister had assured him of the credentials of "Team Solar" and encouraged him to do business with the aforesaid Saritha Nair. There are no materials before this Court to find that there is assurance on the part of the Chief Minister about the credentials of "Team Solar"
and that he encouraged the complainant to do business with Saritha Nair. Even assuming for a moment that he made assurance and encouraged the complainant to do business with Saritha Nair, the same would not amount to any criminal act attracting Section 420 r/w 34 IPC. Annexure-II complaint, statement and affidavit filed by the complainant does not disclose any role played by the Chief Minister.
9. One Sri.Ubaid filed W.P.(C).No.21610/2013 seeking the following reliefs:
"i) Issue a writ of mandamus directing the third respondent to conduct a proper investigation ::12::
Crl.M.C.No.3536 Of 2013 by collecting the CCTVs, Web Cameras and Hard Discs and to analyse the same with the help of scientific agencies attached to the Central Government;
ii) Issue a writ of mandamus directing the second respondent to entrust the investigation to a central agency preferably Central Bureau of Investigation, Delhi Unit."
A Division Bench of this Court by judgment dated 6.9.2013 declined the prayer. The Crl.M.C is filed seeking the very same prayer.
10. It is settled principles of law that investigation of an offence is the field exclusively reserved for the executive through the Police Department, the superintendence over which vests in the State Government. If an offence is alleged to have been committed, it is the bounden duty of the executive to investigate into the crime and bring the offender to book.
11. The learned senior counsel for the petitioner Sri.Ranjith Thampan placed reliance on the decision reported in Kedar Narayan Parida and others v. State of Orissa and another (2009 KHC 5066) and contended that any illegality or ::13::
Crl.M.C.No.3536 Of 2013 malafide action on the part of the investigating authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or malafide action on the part of the investigating authorities. The Apex Court held that while indicating that the courts should not intervene in matters of investigation, which, under the scheme of the Code of Criminal Procedure, has been vested in the Police Authorities, an exception has also been made that in certain circumstances the court could intervene in order to do justice to the parties. The learned counsel submitted that High Courts are guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the Investigating Authority, the High Courts may certainly step in to correct such injustice or failure of justice. The learned senior counsel also placed reliance on the decision reported in Ismail and others v. State of Kerala (1991 KHC 21) and contended that conspiracies will always be had only in secret. Direct, evidence may not be ::14::
Crl.M.C.No.3536 Of 2013 normally possible. Conclusions could, therefore, be only by way of inferences from proved facts and circumstances. The learned senior counsel also cited the decision reported in Dr.Subramanian Swamy v. Dr.Manmohan Singh and another (2012 KHC 4072). The Apex Court, followed the principles laid down by the Constitution Bench in A.R.Antulay v. Ramdas Sriniwas Nayak (1984 (2) SCC 500) which reads as follows:
"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary".
It was further held that the punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. The learned senior counsel also relied on the decision ::15::
Crl.M.C.No.3536 Of 2013 reported in George Muthoot M.G. v. State of Kerala and others (2010 (1) KHC 329) and Zahira Habibulla H. Sheikh v. State of Gujarat (2004 KHC 772). The Apex Court also held that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general.
10. 33 cases are being investigated by the Special Team including Crime No.656/2013 of Konni Police Station. In these cases, none of the victims, has raised any allegation against any member of the investigation team or with regard to the investigation done so far. It is pointed out that one of the complainants, namely, K.M.Sajad (complainant in Crime No.368/2013 of Perumbavoor Police Station) has impleaded himself as a party to W.P.(C).No.17092/2013 before this Court opposing the transfer of investigation from the present investigation team to the CBI. From the detailed statement filed by the Special Investigation Team, it appears that the ::16::
Crl.M.C.No.3536 Of 2013 investigation is proceeding in a fair and proper manner. In the statement of the 2nd respondent it is stated that the investigation team has been exploring the possibility of retrieval utilising all available technologies including those available with non- governmental agencies. The 4th respondent also has not raised any allegation about the investigation by preferring a Crl.M.C or by filing O.P(Crl) seeking investigation by any other agency.
11. The learned Advocate General placed reliance on the decision reported in Sakiri Vasu v. State of Uttar Pradesh and others (2008(2) SCC 409). The Apex Court held that Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII of the code of Criminal Procedure. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. Though the learned Advocate General strongly opposed the locus standi of the complainant, in the light of authoritative pronouncements of the Apex Court and on a consideration of the legal principles ::17::
Crl.M.C.No.3536 Of 2013 on the subject, I am inclined to find that the petitioner has the locus standi to file this Criminal Miscellaneous Case invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure. Hence I repelled the contention of the Government. No sustainable grounds are made out by the petitioner in the Crl.M.C. It is made clear that the facts of the case were discussed in detail only for the purpose of deciding the Crl.M.C on merits.
12. The investigating team is free to investigate the case in accordance with law. They have the right and freedom to seize any relevant articles, equipments etc. and can question any person for the purpose of conducting proper and fair investigation. It is exclusively within the domain of the investigating agency to proceed with the investigation in the manner they decide at this stage. The Court is not justified in interfering with the investigation process. It is for the investigating agency to decide the method and manner in which the investigation shall be conducted. The findings and observations made by this Court are confined to the adjudication ::18::
Crl.M.C.No.3536 Of 2013 of the issue which arises in this case. The investigating agency shall proceed with the investigation untrammelled by any of the findings and observations made by this Court. No useful purpose will be served by granting the prayer sought for.
The Crl.M.C is devoid of any merit and accordingly dismissed.
HARUN-UL-RASHID, Judge.
bkn/-