Jaison Panikulangara v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** **WP(C).No.27486 OF 2020(S)** ## **PETITIONER:** **JAISON PANIKULANGARA AGED 62 YEARS** **S/O. VARGHESE, PANIKULANGARA HOUSE, PARAKKADAVY P.O, ERNAKULAM, PIN - 683579, THE PRESIDENT, KATHIKKODAM ACTION COUNSEL, REG.NO. 742/09, KATHIKOODAM P.O, CHALAKKUDY, THRISSUR DISTRICT, PIN - 680308.** **BY ADVS. SRI.P.K.VARGHESE SRI.R.ROHITH SRI.K.S.ARUN KUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695001.** - **2 CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS SUPERINTENDENT, CENTRAL BUREAU OF INVESTIGATION, KADAVANTHRA, KOCHI - 682020.** - **3 DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM, KERALA, PIN - 695033.** - **4 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, DELHI, PIN - 11000.** - **5 V.D. SATHEESHAN M.L.A AGED 52 YEARS S/O. DAMODARA MENON, DEVARAGAM, KESARI JUNCTION, NORTH PARAVUR, M.L.A. NORTH PARAVUR CONSTITUENCY, KERALA STATE, PIN – 683513.** - **6 ENFORCEMENT DIRECTOR** **AK SHESHADRI ROAD, SHENOY JUNCTION, MARINE DRIVE, KOCHI PIN - 682011.** **SRI.SUMAN CHAKRAVARTHY, SENIOR GOVERNMENT PLEADER FOR R1 AND R3, SRI. SASTHAMANGALAM S.AJITHKUMAR, STANDING COUNSEL FOR R2, SRI.P.VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL FOR R4** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.27486 OF 2020(S) 3 ## **JUDGMENT** ## **SHAJI P.CHALY,J** This is a Public Interest Litigation filed by a person, who claims to be the President of Kathikudam Action Council, which appears to be a registered body functioning from Thrissur District. The case put forth by the petitioner is that he preferred complaints before the Ministry of Foreign Affairs, Directorate of Enforcement and the Superintendent of Police, Central Bureau of Investigation, regarding the acceptance of foreign contribution by the 5[th] respondent i.e., a Member of the Kerala Legislative Assembly. He was elected from the North Paravur constituency. The allegation is that he went to United Kingdom and made a speech at Birmingham to the public gathered and sought for monetary contribution in the name of a foundation called “Punarjani” and claimed that money was proposed for financial assistance to construct residential buildings of the people living in his constituency, who lost everything in the flood engulfed some parts of the State of Kerala in the year 2018. 2. According to the petitioner, video clippings of the speech of the 5[th] respondent happened to be seen by the petitioner through various electronic media. It is also submitted that when the said issue was raised by media WP(C).No.27486 OF 2020(S) 4 persons in Kerala to the 5[th] respondent, he replied that he demanded the contribution that was collected and it reached Thiruvananthapuram through a cheque brought by a lady. According to the petitioner, it is admitted by the 5[th] respondent that he received a foreign contribution in the name of a natural calamity that happened in the year 2018. 3. The sum and substance of the contention is that the aforesaid act of the 5[th] respondent is illegal in tune with the existing laws prevailing in the country. Therefore, petitioner submitted Ext.P1 complaint before the Government of India and the departments referred to above alleging violation of the provisions of the Foreign Contribution Regulation Act, 2010, hereinafter called, 'Act, 2010'. Therefore, according to the petitioner, the authorities, who are bound to take action against the 5[th] respondent have not taken any action, which persuaded the petitioner to approach this Court. In the above backdrop petitioner seeks the following reliefs: - (i) Issue a writ of mandamus directing the 2[nd] respondent to investigate the matter in the interest of justice. - (ii) Issue any order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 4. Therefore, direction sought for by the petitioner to the Central Bureau of Investigation is to conduct necessary investigation in accordance with Ext.P1 complaint submitted to it dated 27.7.2020. In fact as per Ext.P4 dated WP(C).No.27486 OF 2020(S) 5 6.11.2020, the Central Bureau of Investigation has issued a reply to the petitioner intimating that the complaint submitted by the petitioner has been forwarded to the Director, Vigilance & Anti-Corruption Bureau, Thiruvananthapuram on 29.8.2020 vide its letter No.2020. Petitioner has also submitted an application before the Public Information Officer, External Affairs Ministry of India, New Delhi dated 3.8.2020 raising two questions; “(1) Is it the Foreign Affairs Ministry had given permission to Mr.V.D.Satheesan, MLA of Kerala Legislative Assembly to go abroad to collect any relief funds from any country for the period of 2017 to 2020 ? (2) If you had given the permission to collect funds from abroad please give us the documents. ” 5. To question No.(1), the Ministry of External Affairs has stated that it has not given any permission (No) . These are the background facts projected by the petitioner to secure the reliefs specified above. 6. We have heard Sri.P.K.Varghese, learned counsel for petitioner, Sri.Suman Chakravarthy, learned Senior Government Pleader for the State and the Director of Vigilance and Anti-Corruption Bureau, Sri.Sasthamangalam S. Ajithkumar, Standing Counsel for the Central Bureau of Investigation, Sri.P.Vijayakumar, Assistant Solicitor General and perused the pleadings and materials on record. 7. The sole question is whether the petitioner is entitled to get any relief WP(C).No.27486 OF 2020(S) 6 as is sought for ? On a perusal of the pleadings and the complaint submitted by the petitioner before the Central Bureau of Investigation reveal that the Member of the Legislative Assembly went to United Kingdom and made a speech to a gathering and in that speech he requested to contribute 500 pounds each for the construction of residential houses of the flood affected people in Kerala. Apart from the same, it is stated that the 5[th] respondent had admitted the aforesaid aspect to the Media in Kerala and further that petitioner happened to see the video clippings of the speech made by the 5[th] respondent. In fact neither along with the writ petition nor in the complaint filed, any documents are produced by the petitioner inspiring confidence in this Court to order any investigation by the Central Bureau of Investigation. 8. According to the petitioner, actions of the 5[th] respondent are violative of section 3(1)(d) of Act, 2010, whereby a Member of a Legislative Assembly is prohibited to accept foreign contribution. Therefore, since the 5[th] respondent has admitted to the public at large through electronic media, it is an act in violation of section 3(1)(d) of Act, 2010. So also in section 6 of Act, 2010, there is restriction of acceptance of foreign hospitality. Therefore, according to the petitioner it is clear that no Member of Legislature or office bearers of a political party shall visit any country or territory outside India, and accept any contribution except with the prior permission of the Central Government. That apart it is submitted that as per proviso to section 6 of Act, 2010, if a person WP(C).No.27486 OF 2020(S) 7 received any foreign hospitality, the person receiving such hospitality shall give within one month from the date of receipt of such hospitality, an intimation to the Central Government as to the receipt of such hospitality and the source from which and the manner in which such hospitality was received by him. It is submitted by the petitioner that till now the 5[th] respondent has not given any intimation to the Central Government as to the receipt of such hospitality and the said act is against the stipulation of existing rules. Other contentions are also raised relying upon the other provisions of Act, 2010. 9. It is significant to note that if the contentions raised by the petitioner are correct, then by making appropriate queries through the appropriate departments of the State Government or the Central Government petitioner is entitled to get necessary information under the provisions of the Right to Information Act. Even though petitioner has submitted Ext.P5 application dated 3.8.2020 to the Public Information Officer, External Affairs Ministry of India, New Delhi, no query was raised as to whether any intimation was given by the 5[th] respondent in regard to the hospitality enjoyed by the 5th respondent. That apart the travel details in respect of the journey undertaken by the 5[th] respondent are also not sought for under the Right to Information Act. It is well settled that in a Public Interest Litigation in order to enable a writ court to issue a writ of mandamus there should be sufficient materials before the court so as to act upon the same especially when the petitioner is seeking the WP(C).No.27486 OF 2020(S) 8 direction to the Central Bureau of Investigation for conducting investigation into the affairs of the 5[th] respondent in regard to the violation of Act, 2010. It is also important to note that in the complaint filed by the petitioner before the Central Bureau of Investigation, the Central Bureau of Investigation has issued Ext.P4 reply dated 6.11.2020 informing that the complaint was forwarded to the Vigilance and Anti-Corruption Bureau, Thiruvananthapuram. 10. When the matter came up for admission, on a query made to the learned Senior Government Pleader in respect of the pendency of the complaint before the Vigilance, we were informed that since the 5[th] respondent is a Member of Legislative Assembly, necessary sanction is sought for under section 19(1)(c) of the Prevention of Corruption Act, 1988 in order to proceed against the 5[th] respondent and it is awaited. 11. The issue with respect to exercise of power under Article 226 in regard to directing investigation by specialised agencies was considered by the Apex Court in its various judgments. In **Common Cause (A Registered Society) and others v. Union of India and others** [(2017)11 SCC 731] it was held that the court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. In **State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and Others** [(2010)3 SCC 571], the Apex Court held that while WP(C).No.27486 OF 2020(S) 9 passing any order under Article 31 and Article 226 of the Constitution, the court must bear in mind certain self imposed limitations on the exercise of these constitutional powers and further that, the very plenitude of the power under the said articles requires great caution in its exercise. It was further held that in so far as the question of issuing a direction to the Central Bureau of Investigation to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised, but time and again it has been reiterated that such an order is not to be passed as an order of routine or merely because a party has levelled some allegations against local Police. In **Sunil Gangadhar Karve v. State of Maharashtra and others** [(2014)14 SCC 48] the Apex Court held that if the Police Officers declined to look into the complaint the ordinary procedure under the Criminal Procedure Code is available to the complainant. We are also of the view that this writ petition is a premature one in view of the steps taken by the State Vigilance Department. 12. Therefore we are of the considered opinion that if the petitioner has a case that his complaint is not properly acted upon, it is for the petitioner to seek necessary remedies in accordance with the provisions of the Code of Criminal Procedure and other respective statutes and before the appropriate legal forum. This question was considered by us in **Michael Varghese v. Hon'ble Sri.Pinarayi Viyayan** in W.P.(C) No.14316 of 2020 dated WP(C).No.27486 OF 2020(S) 10 22/07/2020 elaborately taking into account all the relevant judgments of the Apex Court, and held that when an investigation into any criminal matter is declined or delayed by the prosecuting agencies, clear remedies are available to the aggrieved persons, and the principles of law laid in the said judgment strictly applies to this case also. Resultantly, we do not find any merit in the writ petition. Needless to say writ petition fails, accordingly it is dismissed. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** smv **SHAJI P.CHALY JUDGE** WP(C).No.27486 OF 2020(S) 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF THE COMPLAINT DATED**| |---|---| ||**27.07.2020, PREFERRED BY PETITIONER,**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXHIBIT P2**|**A TRUE COPY OF THE COMPLAINT DATED**| ||**27.07.2020 PREFERRED BY PETITIONER,**| ||**BEFORE THE 4TH RESPONDENT.**| |**EXHIBIT P3**|**A TRUE COPY OF THE COMPLAINT DATED**| ||**27.07.2020 PREFERRED BY PETITIONER,**| ||**BEFORE THE 6TH RESPONDENT.**| |**EXHIBIT P4**|**A TRUE COPY OF THE LETTER**| ||**NO.CACHN/94/2020/CBI/ACB/COCHIN/2590,**| ||**DATED 06.11.2020 BY THE 2ND RESPONDENT BY**| ||**INTIMATING THAT THE COMPLAINT PREFERRED**| ||**BY THE PETITIONER HAS BEEN FORWARDED TO**| ||**3RD RESPONDENT.**| |**EXHIBIT P5**|**A TRUE COPY OF LATTER DATED 03.08.2020**| ||**PREFERRED BY THE PETITIONER UNDER RTI**| ||**ACT.**| |**EXHIBIT P6**|**A TRUE COPY OF THE LETTER DATED**| ||**21.10.2020 ISSUED BY THE MINISTRY OF**| ||**EXTERNAL AFFAIRS UNDER RTI ACT.**| |**EXHIBIT P7**|**A TRUE COPY OF THE JUDGMENT DATED**| ||**1.12.2020 IN WP(C) NO.26555/2020 OF THIS**| ||**HON'BLE COURT.**|