Kerala High Court
Niyamavedi vs State Of Kerala And Ors. on 14 July, 1999
Equivalent citations: 2000CRILJ778
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
JUDGMENT S. Sankarasubban, J.
1. This writ appeal is filed by the petitioner in O.P. No. 15174/98 against the judgment dated 7-4-1999. The petitioner is 'Niyamavedi', represented by its member Advocate Mr. Denizen Komath. According to petitioner, it is an organization which caters to the public interest and consists of mainly laywers and the original petition is preferred in the larger interest of the general public. The prayer in the original petition is for a writ of mandamus directing the second respondent to consider the entire materials, documents and evidences collected mainly by the Intelligence Bureau and the Research and Analysis Wing, namely, respondents 4 and 5, during the investigation into Crime No. 246/1994 of Vanchiyoor Police station which was renumbered as R.C. No. 1 l/S/94 and lodge a complaint in accordance with Section 13 of the Indian Official Secrets Act and prosecute all the culprits of the ISRO Espionage case in accordance with law and for consequential relief's. Crime No. 246/94 was a case registered on 13-11 -94 on the complaint of Vijayan in the Vanchiyoor Police Station under Sections 3 and 4 of the Official Secrets Act, 1923 on the allegation that in collusion with some Indians and foreigners, the Maldivians, committed acts prejudicial to the safety and sovereignity of India. According to petitioner, after initial inquiry, the investigation was entrusted to the Special Team of Police Officials headed by the Deputy Inspector General (Crimes). In the course of the investigation, a few senior scientists of the Indian Space Research Organization and others were arrested. During the course of the investigation, areport was sent by the Deputy Inspector General (Crimes) to the Director General of Police Kerala seeking steps to handover investigation into the the case to the third respondent namely, the Director, Central Bureau of Investigation, New Delhi. Accordingly, the State Government on the recommendation of the Director General of Police Kerala entrusted the investigation to the third respondent by notification dated 2-12-94. The third respondent re-registered the above case as R.C. No. 11 /S/94 and took over the reins of investigation. Upon the completion of investigation, the third respondent filed his report under Section 173(2) of (he Criminal Procedure Code before the Chief Judicial Magistrate, Ernakulam praying to discharge the accused persons, as according to him, the allegations of espionage were not proved. The report was accepted and the accused were discharged. Subsequently on 27-6-96, the first respondent, the State of Kerala, issued a notification withdrawing the consent given earlier to the third respondent to investigate into crime No. 246/94. Aggrieved by the notification withdrawing the consent given to the third respondent, the six accused persons filed separate writ petitions before this Court. The writ petitions were dismissed and against which appeals were preferred and in appeals the Notification withdrawing consent was struck down. The decision of the Supreme Court is reported in Mariam Rasheeda v. State of Kerala (1998) 1 Ker LT 835 : 1998 Cri LJ 2897.
2. The case of the petitioner is that the third respondent after taking over the investigation soft-pedaled the same against the then Inspector General of Police, Southern Range, State of Kerala by name Ramon Srivastava. The petitioner then moved this Court for proper investigation in Crime No. 246/94. That O. P. was dismissed. The petitioner then preferred W.A. 1676/94. While adjudicating the writ appeal this Court found certain observations against the Investigating Agency. The petitioner referred to the comments made by this Court in the above case. According to the petitioner, the State Police as well as respondents 4 and 5 have come out openly against the findings of the third respondent claiming that certain material omissions and suppressions were made by the third respondent in the matter. The petitioner referred to certain omissions made by the C.B.I, which is stated by the petitioner as missing gaps. According to petitioner, the third respondent failed to continue the investigation in a confidence inspiring manner and hence the prayer for reconsideration of the entire materials by the second respondent and lodge a complaint under Section 13 of the Official Secrets Act.
3. The learned single Judge after hearing the parties dismissed the Original Petition. It is against the above judgment that the present Writ Appeal is filed.
4. We heard Sri. A. X. Vargese, counsel for the appellant. Learned counsel submitted that for offence involved in the case under Official Secrets Act, the complaint is to be lodged by the Central Government. He also relies on certain portions of the judgment in (1998) l Ker LT 835:(1998 AIR SCW 2897) to show that Central Government can review the entire materials of investigation. In this context we wish to state that so far as the grounds raised by the appellant as per the judgment of this Court in W.A. 1676/ 94, that cannot be taken into account since that judgment was taken in appeal before the Supreme Court and the judgment of the Supreme Court is reported in Director, Central Bureau of Investigation v. 'Niyamavedi' represented by its Member K. Nandini, Advocate (1995) 5 SCC 601 : 1995 Cri LJ 2917. A reading of the judgment shows that the Supreme Court had held that the Division Bench should have refrained from disclosing in its order material contained in diaries and statements. It further observed as follows :-
It should also have refrained from making any comments on the manner in which investigation was being conducted by the CBI, looking to the fact that the investigation was far from complete.
Thus the appellant is not correct in stating that the observations in the above writ appeal should be taken into consideration.
5. As already stated when the consent given to the third respondent was withdrawn by the State Government, writ petitions were filed before this Court. That was dismissed by this Court. The appeals were preferred before the Supreme Court. The judgment of the Supreme Court is reported in (1998) 1 Ker LT 835 : 1998 Cri LJ 2897. The Supreme Court held that the State Government did not have the power to withdraw the notification. It held as follows :-
In view of the law so laid down by a three judge Bench of this Court, it must be held that an investigation started by C.B.I, with the consent of the State Government concerned cannot be stopped midway by withdrawing the consent.
6. The counsel for the appellant refers to paragraph 13 of the above judgment wherein it is stated that a prosecution for the offences alleged against the accused persons can be instituted only by a complaint filed by the Central Government in view of Section 13(3) of the I.O.S. Act and not the State Government. He further refers to paragraph 27 of the judgment. It only states that the issuance of the notification does not com- port with the known pattern of a responsible Government bound by rule of law. The appellant wants this Court to issue a direction to the Central Government to consider the materials supplied by respondents 4 and 5 and file a complaint. This argument cannot be accepted in view of the following observations in the judgment of the Supreme Court which appear at page 848.
Having regard to the stand taken by the Central Government that they are satisfied with the report of investigation of the C.B.I. we are not prepared to accept the above statement in absence of any supporting affidavit on behalf of the Government of India or any of those organizations.
The Supreme Court was referring to a statement made by the Additional Secretary to the Government of Kerala in his counter affidavit wherein he has stated thus :-
Having regard to the question of public importance involved in this matter the Government ordered that further investigation should be taken by a special team handed by senior officials of Kerala State Police assisted by senior officials of the Intelligence Bureau, RAW and intelligence wing in the defence organisation of Govt. of India.
Further in the sub paragraph of the judgment the Surpeme Court states as follows :-
On a careful perusal of the police report submitted by the C.B.I. on completion of the investigation we find that it has made a detailed investigation from all possible angles before drawing the conclusion that the allegations of espionage did not stand proved and were found to be false.
Further in sub-paragraph (iv) of paragraph 26 of the judgment, it is stated as follows :-
The Government of India, by supporting the case of the writ petitioners in the High Court, and filing some of these appeals in this Court and an affidavit in connection therewith has, in no uncertain terms, made it abundantly clear that they are satisfied with the investigation conducted by the C.B.I. and they strongly oppose any attempt on the part of the State Government to further investigate into the matter by its police. Inspite thereof the State Government has been pursuing the matter zealously and strongly defending their action, knowing fully well that a prosecution can be launched by or at the instance of Central Government only. Having known the stand of the Government of India it was expected of the Government of Kerala to withdraw the impugned notification for in the ultimate analysis any further investigation by it would be an exercise in futility.
The above observation will show that the Government of India accepted the investigation done by the C.B.I.
7. In the above view of the matter, it will not be proper to direct the Government again to reconsider the issue.
8. The writ appeal is dismissed.
A.R. Lakshmanan ACTG, C.J.
9. I agree.