JUDGMENT IN REVIEW
TheHigh Court of Kerala has inter alia, upheld the dismissal, by the Trial Court,
of the discharge petition filed by the 5th accused in what has come
to be known in Kerala as the ‘Palmolein import case’, Jiji Thomson, former Managing
Director of the Kerala State Civil Supplies Corporation, holding that such a
pre-trial closure of the prosecution cannot be thought of in this case when the
prosecution has some materials to go ahead with the allegations of corruption
made against the accused. The High Court has also held that the request of
the 5th accused, Jiji Thomson, to invoke the jurisdiction of the
High Court under Section 482 Cr.P.C. and quash the prosecution proceedings cannot
be allowed as withdrawal from prosecution will have the effect of stifling or thwarting
the legal process. The Court, dismissing Mr. Jiji Thompson’s petition also
observed that there is absolutely nothing to indicate that the present
prosecution is an abuse of legal process. The High Court also dismissed the revision petitions filed by the State challenging the refusal of the Trial Court to allow its application for withdrawal from prosecution of the case, saying it was not in public interest.
The background facts:
Late Sri.K.Karunakaran, the Chief Minister of Kerala in power in 1991, with the
junction of the then minister for Civil Supplies, Sri.T.H Mustafa and some
Government Secretaries took a decision to import 30000 metric tonnes of
Palmolein from Singapore, to meet the requirements of the people of Kerala in
connection with some festival.
The
prosecution case is that the then Chief Minister, late Sri.K.Karunakaran got
this decision approved by cabinet, without discussing and disclosing the real
facts concerning the said import, and thus imported that much quantity of
Palmolein through the exporter, Power and Energy Ltd., Singapore, with the
assistance of Mala Export Corporation, Chennai, without inviting global tenders
and totally in violation of the Store Purchase Rules, with the object of making
unlawful benefits, and thus causing heavy loss to the state exchequer. The then
Chief Secretary to the Government of Kerala, and also the Secretary to the Civil
Supplies Department happened to be prosecuted along with the ministers and
others, as the bureaucratic heads who involved in the process of import without
complying with the provisions of the Store Purchase Rules and without inviting
global tenders. On detection of the irregularities and the unholy involvement
of the ministers and secretaries in 1996 by the Comptroller and Auditor
General, the Public Accounts Committee of the Kerala State Legislative assembly
conducted an enquiry into the alleged irregularities and illegalities. On
enquiry, the Public Accounts Committee found out something vicious in the
alleged deal made in haste without inviting global tenders and without
complying with the provisions of the Store Purchase Rules, and this fact was
reported to the Government. On getting the said report, the Government ordered
a vigilance probe into the matter. Accordingly, a crime as V.C.1/1997/SCT was
registered in March 1997 by the Vigilance under Section 120B of IPC and also
under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. After
effective investigation, the Vigilance submitted final report in the case on
1-11-1997 in the Special Sessions Court, Thiruvananthapuram. The final report
was returned by the learned trial judge due to some defects including non-
production of prosecution sanction. The final report was later resubmitted in
court on 23-03-2001. The 1st accused Sri.K.Karunakaran, the Chief
Minister in power when the crime was registered, died pending the proceedings,
and
thus the charge against him abated. The 2nd accused is the then
Minister for Food and Civil Supplies, the 3rd accused in the final
report is the then Chief Secretary to the Government, the 4th accused
is the then Additional Chief Secretary to Government, the 5th accused
is the then Managing Director of Civil Supplies Corporation, the 6th
accused in the final report is a partner of Mala Export Corporation, the 7th
accused is a Director of Power and
Energy Limited, Singapore who facilitated import of Palmolein from Singapore,
and the 8th accused is the then Secretary, Food and Civil Supplies
Department.
The
allegation of the prosecution in respect of the ‘Palmolein import’ case is that
the government exchequer lost crores of rupees in the said vicious deal made in
the name of people of Kerala, when the people had no such urgent requirement
for Palmolein.
The
case never reached finality despite initiation of prosecution in 1997, one or
the other party keeping the issue aflame on one ground or the other by
challenging every action or order, before the Courts of law.
The
prosecution process went on, without sanction from the Government of India, as
regards the Government Secretaries. However, the Government of Kerala granted
necessary sanction as regards them under Section 197 of the Code of Criminal
Procedure, for prosecution under Section 120B IPC. When the prosecution process
thus went on, one or the other party keeping the issue aflame on one ground or
the other by challenging every action or order, the Government of Kerala, with
the object of putting an end to the prosecution process, took a decision to
withdraw from prosecution by issuing a Government Order to that effect in the
year 2013.
Following
the issuance of the said government Order, the Public Prosecutor in charge of
the case filed Crl.M.P No.508/2013 in the trial Court under Section 321 of the
Code of Criminal Procedure, requesting the trial court to permit him to
withdraw from prosecution. Finding that such withdrawal will defeat public
interest, Sri.V.S. Achuthananthan, the leader of the opposition and Sri.V.S
Sunil Kumar, MLA a member of the Kerala Legislative Assembly,
intervened in the process as persons representing the public at large and
objected to the government's application for withdrawal from prosecution by
filing statements of objection in the trial Court. The statement of objection
filed by Sri.V.S Sunil Kumar, MLA was filed as Crl.M.P No.509/2013 and the
statement of objection filed by Sri.V.S Achuthananthan, the leader of
opposition, was filed as Crl.M.P No.510/2013.
The interveners Sri.V.S.Achuthananthan
and Sri.V.S.Sunil Kumar objected to the move for withdrawal on the ground that
such a withdrawal will not in any manner serve public interest, and such withdrawal
will in fact defeat the larger interest of the society which has always been
alert, inquisitive and anxious to know about the nature and extent of the
corruption involved in the said dishonest and vicious deal that caused heavy
loss of crores of rupees to the state exchequer.
Pending the proceeding before the Special
Session Court at Thrissur as C.C No.108/2011, the 5th accused made an application as Crl.M.P
No.188/2011 for discharge on various grounds including the infirmity in
prosecution without necessary sanction as against him under Section 19 of the
Prevention of Corruption Act. After hearing both sides the learned trial judge
dismissed the said application by order dated 7.5.2013 on the ground that
absence of sanction under Section 19 of the Prevention of Corruption Act will
not vitiate the whole prosecution when there is a definite charge against him
under Section 120B of IPC, and the Government of Kerala has granted necessary
sanction under Section 197 of the Code of Criminal Procedure. The learned trial
judge also found that the legality and propriety of the sanction under Section
197 of the Code of Criminal Procedure cannot be decided at the preliminary
stage, when the court proceeds to frame charge. Aggrieved by the said order,
the 5th accused filed Crl.R.P No.990/2013. Before filing the said
revision, Crl.M.C 1013/2013 was brought by the 5th accused under
Section 482 of the Code of Criminal Procedure for quashing the prosecution as
against him on the grounds urged by him in the application for discharge.
The Public Prosecutor, inter alia,
urged the following grounds in support of the plea for withdrawing from
prosecution (Crl.M.P. 508/2013):
“a) The whole
prosecution as against the accused Nos.5 and 8 will be an exercise in vain when
there is no sanction as against them under Section 19 of the Prevention of
Corruption Act. Even the sanction granted by the Government under Section 197
of the Code of Criminal Procedure for prosecution as against them under Section
120B of IPC is illegal and improper, and such sanction was granted by the
Government without application of mind.
b) The decision taken
by the Government of Kerala in 2005 as per G.O(RT) No.105/2005/Vigilance dated
28.3.2005 was wrongly cancelled by the successor government in 2006 as per G.O
(RT) No.143/2006/Vigilance dated 25.7.2006 without assigning any ground or
reason for such cancellation, and the decision now taken by the present
government as per G.O(RT) No.145/2013/Vigilance dated 13.9.2013 to withdraw
from prosecution on revival of the first decision taken by the Government, will
have to be accepted.
c) Even assuming that
the alleged import of Palmolein was made without inviting global tenders and in
violation of the Store Purchase Rules, no loss was in fact caused to the state
exchequer, and thus the deal did not involve any act of corruption.
d) The report of
further investigation made by the Vigilance, as ordered by the trial court
pending the proceedings, will justify the actions on the part of the accused in
the process of import of Palmolein, without inviting global tender, and the
said report of further investigation will have to be accepted by the
court.
e) This prosecution
cannot be allowed to be an unending process, and it will have to be put an end
to, when innocent persons are being unnecessarily harassed, they have been
facing unnecessary prosecution for about two decades, and they will have to
undergo the ordeal of prosecution for years quite unnecessarily, when the state
exchequer had not incurred any loss. The Central Vigilance Commission, on
enquiry has found that there is absolutely no material to implicate the accused
Nos.5 and 8 in the alleged deal, and that these two Government Secretaries
acted as responsible officers, only in terms of what the cabinet decided.
f) Three important
witnesses, cited by the prosecution as CW1, CW3 and CW12 to prove the alleged
vicious transaction of the Kerala State Civil Supplies Corporation and the
vicious and dishonest involvement of the 5th accused, died pending the
proceedings. When such important witnesses are no more, the prosecution cannot
in any manner prove the case against the 5th accused.
g) The investigating
officer has not been able to collect any material or evidence to prove that any
of the accused had derived any unlawful benefit or that the State exchequer has
incurred any loss due to the alleged import of Palmolein without inviting
global tenders and in violation of the Store Purchase Rules.
h) The prosecution
does not have any definite and satisfactory material to prove the case,
especially when three important witnesses are no more, and when there is such
paucity of evidence, the prosecution will definitely end in acquittal. In view
of such a definite possibility of acquittal, the proceeding could be dropped at
the earliest so that precious time of the judiciary can be saved and further
loss of public money for such unnecessary prosecution can be avoided.”
The
interveners, leader of the Opposition Sri. V.S. Achuthanandan and Sri.V.S.
Sunilkumar, MLA objected to the petition filed by the public prosecutor for
withdrawal on the following major grounds:
“a) The learned
Public Prosecutor who made application under Section 321 of the Code of
Criminal Procedure is really incompetent to file such an application, because
he is not the prosecutor in charge of the case.
b) This is not a case
of total paucity of evidence, and if at all some witnesses are no more, the
prosecution case can well be proved by other means, when documents and
registers will speak about the role and involvement of the 5th accused.
c) The report of
further investigation made by the Vigilance, by which the accused are given a
clean chit by the Vigilance, quite contrary to what the Vigilance earlier
found, will have to be ignored by the court, and the court will have to decide
during trial what report is acceptable.
d) This is a clear
case where definite and satisfactory materials are there to prove the unlawful
benefits derived by the accused in the vicious deal of illegal import at high
rate of purchase without inviting global tenders and without complying with the
provisions of the Store Purchase Rules, and such unlawful benefits made by the
accused resulted in heavy loss to the state exchequer.
e) Withdrawal from
prosecution will not serve any public interest in any manner, and in fact it
will defeat the interest of the public who have always been alert and anxious
to know the nature and extend of the corruption involved in the alleged vicious
deal of import of Palmolein, and such right of the public cannot be defeated on
the ground that the accused have been facing prosecution for about 20 years.”
Findings of the Trial Court:
On
a consideration of the various aspects urged by the prosecution as grounds
justifying withdrawal from prosecution, the Trial Court found that the Public
Prosecutor, who made the application for withdrawal is not in fact competent as
the Public Prosecutor in charge of the case as meant under Section 321 of the
Code of Criminal Procedure, that the various grounds urged by the prosecution
cannot be considered at this preliminary stage, those things will have to be
considered at the trial stage, and that withdrawal from prosecution will not
serve any public interest. As regards the request for discharge, the Trial
Court found that prima facie materials are there to prove the involvement of
accused No.5 in the alleged vicious import of Palmolein as the Secretary in
charge, and that when such materials are there the case will have to go to
trial for a just and final decision. As regards the question of sanction raised
by the Government, the trial Court found that there is sanction under Section
197 of the Code of Criminal Procedure for prosecution under Section 120B IPC,
though there is no such sanction under Section 19 of the Prevention of Corruption
Act, and the legality of the sanction given by the Government under Section 197
of the Code of Criminal Procedure cannot be adjudged by the trial court in a
proceeding under Section 321 of the Code of Criminal Procedure. The Government
having granted sanction for prosecution cannot turn round and say that it is
improper and illegal. However, when there is a sanction granted by the
competent authority, the legality and propriety of the sanction, as to whether
it was made in compliance of the procedure established by law, or whether it
was made without application of mind to the facts of the case and the legal
aspects involved, can be decided only during trial. Finding that withdrawal
from prosecution will serve only political interest and it will not serve any
public interests, the Trial Court disallowed the request for withdrawal from
prosecution.
After
hearing both sides including the interveners Sri.V.S.Sunil Kumar and Sri.V.S
Achuthanandan, the learned trial judge dismissed Crl.M.P No.508/2013 as per
common order dated 13.1.2014 in Crl.M.P Nos.508/2013, 509/2013 and 510/2013. Aggrieved
by the order dismissing Crl.M.P No.508/2013, the Government of Kerala brought
Crl.R.P No.139/2013. Though there was no definite order allowing Crl.M.P
Nos.509/2013 and 510/2013, the government brought revision petitions against
orders on those requests also. Crl.R.P No.198/2014 was filed by the Government
of Kerala against the order in Crl.M.P No.509/2013, and Crl.R.P No.199/2013 as
filed by the Government of Kerala against the order of the Trial Court in
Crl.M.P No.510/2013. The 2nd accused in the case also filed a
revision as Crl.R.P No.372/2013 before the High Court against the order in
Crl.M.P No.508/2013 of the Trial Court.
Reasoning of the High Court:
With
respect of the locus standi of the interveners in the case, to prefer
objections against the prosecution decision to withdraw from the prosecution,
Justice P. Ubaid found on a perusal of the case records, that “there are materials prima facie to
substantiate the allegations made by the prosecution regarding the vicious
nature of alleged import of palmolein made in haste when there was no such
absolute necessity or requirement in Kerala. There is reason to believe that
somebody was in fact benefitted by the said vicious deal. It is a matter to be
looked into and decided on trial, whether those persons include the accused
also, and whether the State exchequer had sustained corresponding loss. In such
a factual situation, the opposition made by the Interveners cannot be doubted
or discarded by the court, saying that it is a mere political objection.”
In reaching such a conclusion,
the High Court relied on the decision of the Apex Court
reported in Sheonandan Paswan v. State of Bihar
[AIR 1987 SC 877] wherein the Hon'ble Supreme Court held that in cases
involving offences of corruption, criminal breach of trust etc, any member of
the society can oppose application for withdrawal from prosecution when such
offences are offences of serious nature against society.
Meeting
the contention of the State that there is no prosecution sanction against
the accused Nos.5 and 8 under Section 19 of the Prevention of Corruption Act,
the High Court said that whether the sanction in this case is proper or legal,
or whether it was granted on proper application of mind, or whether it was
granted in compliance of the procedure established by law are all matters to be
decided during trial. The said contention that the sanction is not valid,
cannot be looked into by the court at this stage where the issue is only
withdrawal from prosecution. The accused can raise the said legal question when
the case itself goes to trial. Thus, the Court held that on the ground of
invalid sanction, the State cannot be allowed to withdraw from prosecution.
With
respect to the ground urged by the Government that even assuming that the
alleged import of palmolein was made without inviting global tenders or in
violation of the Store Purchase Rules, no loss was caused to the State
exchequer, the Court held that such a ground cannot be now considered, and that
there is some material in the case records to indicate something vicious in the
alleged deal. “Admittedly it was made without inviting global tenders, and the
price was fixed by the Government allegedly at a higher rate. That being so, it
is a matter for decision on trial whether the State exchequer had sustained any
loss due to such act of the accused. In these proceedings brought under Section
321 of Cr.P.C, such factual aspects cannot be discussed, gone into, or
adjudicated”, held Justice P. Ubaid.
The
State also urged before the High Court, in support of its decision to withdraw
from the prosecution, that three important witnesses cited by the prosecution- are
CW1, CW3 and CW12 are now no more. These 3 witnesses were cited to prove the
alleged vicious role of accused Nos.5 in his capacity as the
Secretary-in-charge of the Kerala State Civil Supplies Corporation . Meeting this contention, Justice Ubaid said
“Just because some witnesses
died pending the proceedings, the court cannot grant permission to withdraw
from prosecution. Only in cases where death of any particular witness will
leave a lacuna, which cannot be in any manner filled up, thus causing total
paucity of evidence, the court can grant permission for withdrawal. But, here
there is no such situation. If at all CW1, CW3 and CW 12 are no more, the
materials or circumstances sought to be proved through them, can be proved by
the prosecution even otherwise, by way of available documents, or even the oral
evidence of the witnesses, who can give evidence regarding the contents of
those documents, however, with the permission of the court. When the trial
court finds a situation that examination of other witnesses not cited by the
prosecution will have to be permitted to prove material aspects, and if such
necessity arises on the death of any material witness, the trial court can very
well grant such permission. A case cannot die on the death of a witness. A case
will die or abate on the death of the accused, but there cannot be such a
situation abating a prosecution on the death of a witness. In such a situation
the prosecution will have to take necessary alternative steps for proving the
prosecution case. Allowing a case to die or abate on the death of a witness,
will be against the principles of criminal law and criminal jurisprudence. On
the ground that three witnesses died pending the proceedings, the prosecution
cannot be allowed to be withdrawn.”
The
High Court framed the following points for determination: (a)
whether withdrawal from prosecution can be allowed in this case in public
interest, (b) whether the plea for discharge made by the 5th accused can be
accepted, and (c) whether the prosecution as such is liable to be quashed.
Findings of the High Court:
The
Court, answering these points held:
“..the application made by the Legal
Adviser Sri.Augustine does not satisfactorily explain what public interest will
be served, or how withdrawal from this prosecution will serve any public
interest. As already observed, the objective of prosecution at state hands is
to secure public safety, public health,social tranquility, public morality and
public order by enforcement of rule of law. When the State takes decision to
withdraw from prosecution and the learned Public Prosecutor makes application
to that effect, the State or the learned Public Prosecutor must convince the
court exercising supervisory jurisdiction over the prerogative of the Public
Prosecutor, that such withdrawal will also secure some public interest in the
form of social good or public tranquility or social harmony or public order.
Here, I fail to find what public good or public interest is sought to be served
or achieved by the learned Public Prosecutor by withdrawing from the palmolein
prosecution. No doubt, the accused will be benefited by such withdrawal, and
the long standing prosecution which may take some more years for natural
termination can be put an end to. But that cannot be the objective of
withdrawal from prosecution. An examination of the history of this case shows
that initiation of prosecution on the basis of the findings made by the
Comptroller and Auditor General and also the Public Accounts Committee of the
Kerala Legislative Assembly was not in fact a politically motivated one though
it subsequently, over the years, gained socio-political importance, being a
case involving allegations of public corruption causing wrongful loss to the
State Exchequer by way of wrongful gain and profits made by Ministers and
Bureaucrats. When withdrawal from such prosecution is objected by the
representatives of the people, or even any common man as a member of the
public, such objection cannot be branded as politically motivated objection.
Just because some representatives of the people under political banners
intervened in public interest and objected withdrawal from prosecution, the
case cannot be given political colour.
42. The learned Public Prosecutor has
stated so many grounds in his application for withdrawal. I have discussed all
these important grounds and found that on such grounds the State cannot be
allowed to withdraw from prosecution. When withdrawal from prosecution is
attempted and permission to that effect is sought from the court, the State or
the Public Prosecutor is duty bound to explain what public interest is going to
be served or achieved by such withdrawal. Here, it is not known how withdrawal
from prosecution will serve any public interest, or how will the society at
large be benefited by such withdrawal, or whether such withdrawal will have the
effect of securing and maintaining public good, social benefit or social
harmony, or even political harmony.
43. The Government Order on the basis
of which the learned Public Prosecutor decided to withdraw from prosecution
also does not explain what public interest is going to be served by such
withdrawal. On an examination of the entire case records, and also the various
grounds urged by the learned Public Prosecutor, I find that withdrawal from
prosecution in this case will only serve the personal interests of the accused,
that the long standing prosecution can be put an end to, and the accused
persons would be let free from further trauma of prosecution wherein they will
have to face serious allegations of corruption. This can not at all be the
object of withdrawal from prosecution.
44. As already observed, I find on an
examination of the entire case records, that the prosecution has prima facie
materials to proceed for trial on the allegation that the alleged vicious deal
made by the accused had caused some loss to the State exchequer by way of some
unlawful benefits or profits gained by the accused, or some of them. In such a
situation, the pre-trial termination by way of discharge, or the extreme step
of closing the whole proceeding by way of orders under Section 482 of Cr.P.C
cannot be thought of or resorted to.”
The Court accordingly recorded the following
findings:
“(a) The interveners Sri.V.S.Achuthanandan and Sri.V.S.Sunil Kumar, who are two of the respondents herein, have the right and locus standi to object withdrawal from prosecution as representatives of the people.(b) The Legal Adviser (Public Prosecutor) Sri.Augustine who made application for withdrawal in this case is competent to make such application under Section 321 of Cr.P.C, and accordingly the findings of the court below on the point will stand reversed.(c) However, on merits, it is found that withdrawal from prosecution in this case will not serve any public interest,and no public good is going to be achieved by such withdrawal. Such withdrawal may only help the accused personally or otherwise.(d) The learned Legal Adviser (Public Prosecutor) who made application for withdrawal has well studied the facts of the case, and applied his mind, but not in good faith. The application made by him will not satisfy the court that his decision to withdraw from prosecution will in any manner help the society or serve any public interest. On the other hand, such withdrawal may have the effect of thwarting or stifling the process of law and the serious prosecution involving allegations of corruption by Ministers and the Bureaucrats.(e) This is a case where the Public has also some concern in view of the allegations of corruption by Politicians and Bureaucrats; The right of the public to know about the nature and extent of such corruption, and whether such vicious deal made by the accused have in fact caused any loss to the State exchequer or whether anybody stands gained by such deal under the pretext of public requirement, cannot be denied by such withdrawal from prosecution, which will have the effect of stifling the judicial process.(f) Application for discharge, made by the the 5th accused was rightly dismissed by the court below because such a pre-trial closure of the prosecution cannot be thought of in this case when the prosecution has some materials to go ahead with the allegations of corruption made by the accused.(g) The legal and factual aspects raised by the State and the accused for getting permission for withdrawal are in fact the grounds to be urged and considered on trial by the trial court, and those questions can be decided only when the case goes to trial. Such questions of law or facts cannot be now considered at this stage when the request is to withdraw from prosecution. The only consideration in larger public interest in the matter of withdrawal from prosecution must be, how such withdrawal will serve any public interest, and not whether the prosecution suffers from any legal or factual infirmity, the benefit of which will ultimately go to the accused at the time of final disposal.(h) In the particular facts of the case where withdrawal from prosecution will have the effect of stifling or thwarting the legal process, and where there is absolutely nothing to indicate that the present prosecution is an abuse of legal process, the request made by the 5th accused to quash the prosecution under Section 482 of Cr.P.C also cannot be allowed.(i) The learned Public Prosecutor has miserably failed to convince the court exercising supervisory jurisdiction, that he has sufficient grounds to withdraw from prosecution in public interest, or that his decision to withdraw from prosecution will in any manner serve any public interest.(j) In view of the above findings, all these proceedings are liable to be dismissed. I find that decision in the matter of withdrawal, and also discharge, was properly and rightly taken by the court below. That the finding of the trial court regarding competence of the Public Prosecutor is reversed by this Court, will not go to the benefit of the State and the accused. On the material aspects this Court's finding is that withdrawal cannot be allowed in this case in public interest, in exercise of the supervisory jurisdiction of the court. I do not find any illegality or irregularity or impropriety in the findings of the trial court or in the orders made by the trial court on withdrawal or on discharge. I do not find any reason or necessity for interference in the orders passed by the court below. The State will have to proceed with the prosecution, and the accused will have to face the prosecution in view of the serious allegations of corruption.”
Accordingly the revision petitions
filed by the State and the petitions filed by the 5th accused Jiji Thomson for quashing the proceedings and also his challenge to the order of the Trial Court dismissing his discharge petition, were dismissed by the High Court of Kerala.
