The Kerala High Court on Tuesday reserved its verdict on the maintainability of appeals challenging a single-judge order directing the registration of an FIR against CPI(M) leader and former Kerala Chief Minister Pinarayi Vijayan, his daughter Veena Thaikkandiyil, her husband Mohammed Riyas and others in the CMRL-Exalogic case [Pinarayi Vijayan v Adv KM Shajahan & ors].
A Division Bench of Justice K Natarajan and Justice Johnson John heard the matter today.
Notably, the appellants (Vijayan, Veena, Riyas and others) were not parties to the writ petition in which the single-judge's October 9 order was passed.
Therefore, a question arose as to whether they can be given permission to challenge a judgment in a case to which they were not parties.
All the appellants have filed applications seeking the Court's permission to make detailed arguments in their main appeals. The Court today reserved its verdict on this aspect of whether their applications seeking leave to appeal should be allowed.
The matter is tied to alleged irregularities in the financial transactions between Cochin Minerals and Rutile Limited (CMRL) and Exalogic Solutions Private Limited, a company owned by Veena Thaikkandiyil.
The Enforcement Directorate (ED) claimed that it had unearthed certain incriminating material, which it shared with the State Police.
The State decided to set up a Special Investigation Team (SIT) to hold a preliminary inquiry instead of immediately registering an FIR.
A lawyer named KM Shajahan - who had also served as an additional private secretary to former CM and CPI (M) leader, late VS Achuthanandan when he was the Leader of Opposition - approached the High Court challenging this move. Shajahan sought the registration of an FIR.
On October 9, a single-judge Bench comprising Justice A Badharudeen allowed the petition and ordered the State's Vigilance and Anti-Corruption Bureau (VACB) to register an FIR against Vijayan, Veena, Riyas and others suspected of corruption, including Nikhil P, Hassan Varish, Shyjal Muhammad and Nandulal M.
Vijayan, Veena and Riyas and the others have challenged this ruling in their appeals before the High Court's Division Bench.
Former Kerala Advocate General Senior Advocate K Gopalakrishna Kurup appeared for Veena today. He questioned how a third party could have moved the Court for the registration of an FIR in the first place.
“The single judge order was passed on a petition moved by a third party unconnected to the case. The question of maintainability must be considered,” he said.
He argued that the single judge’s direction for an FIR had impacted the appellants’ legal remedies and that it was passed without hearing them.
“If SHO registered an FIR, I could have approached this court challenging FIR on ground of lack of material ... In a writ petition, this court directed to register an FIR without hearing us. Now the remedy is foreclosed to us,” he said.
Representing Riyas and Nikhil, Senior Advocate S Sreekumar added,
"What was the hurry for the petitioner to approach the court with the writ petition?"
Senior Advocate Kurup further maintained that the State was well within its rights to first conduct a preliminary inquiry, before deciding if an FIR was necessary.
“Why can't SIT carry out preliminary enquiry on information given by ED under 66(2) PMLA?” he asked.
The State government also defended the decision to hold a preliminary inquiry in the case.
"The State has the discretion to register or not register an FIR. If prima facie or ex facie there is a cognizable offence, only then FIR needs to be registered. There is nothing wrong with preliminary enquiry if there is a doubt," argued Advocate General Jaju Babu.
Both Babu and Kurup further argued that Shajahan's plea ought to have been treated as a public interest litigation (PIL) and heard by a Division Bench, not a single-judge Bench.
"I had objected, saying it is a PIL. Learned single judge has virtually accepted it because the order treats the petitioner as a whistle blower. This petitioner (Shajahan) has contempt case initiated against him for making averments against judges. I had raised the point that he is not a bona fide litigant," said Babu.
Former Director General of Prosecution and Senior Advocate TA Shaji appeared for Pinarayi Vijayan and asserted that the appellants must be heard before the FIR proceeds.
"In this case, the police was not satisfied with information given by ED to straightaway register an FIR. Instead, the police officer chose to go with a preliminary enquiry. When that decision is appealed, the affected parties ought to be heard... in this case, the petitioner (Shajahan) is a meddlesome interloper. It is for the police to take action and police did take action as they saw fit. When the action of the police is challenged no order can be passed without hearing the affected party," he said.
Senior Advocate Raman Pillai appeared for Hassan Varish, Shyjal Muhammad and Nandulal M.
The appeals filed by Pinarayi Vijayan and Veena were moved through advocates Gilbert George Correya, KK Ravindranath, P Narayanan, Manu V, Thanushree Damodaran, Abhijith MA and Clarina Christopher P.
Riyas, Nikhil, Varish, Shyjal, and Nandulal's appeals were filed through advocates Ameen Hassan K, Lisna Sherin TT, Ummul Fadla T, Abdul Fathah Rajesh A and Muneer Ahmed.
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