Noble Mathew s/o Late M.D. Mathew v. Central Bureau of Investigation and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939 WP(C).No. 35547 of 2016 (P) ---------------------------- PETITIONER(S): - ------------------ NOBLE MATHEW S/O.LATE M.D.MATHEW, AGED 54 YEARS, MANNAMPLACKAL HOUSE, CHIRAKKADAVU PO, KOTTAYAM DISTRICT 686520 BY ADVS.SRI.GEORGE SEBASTIAN SRI.SIJO PATHAPARAMBIL JOSEPH SMT.LIZZ MARIYA ABRAHAM RESPONDENT(S): - -------------- 1. THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR, NEW DELHI, PLOT NO. 5 B, 6TH FLOOR, CGO COMPLEX, LODHI ROAD, NEW DELHI 110003 2. THE STATE OF KERALA REPRESENTED BY SECRETARY TO THE DEPARTMENT OF VIGILANCE, GOVERNMENT SECRETRAIAT, THIRUVANANTHAPURAM 3. THE DIRECTOR VIGILANCE AND ANTICORRUPTION BUREAU, VIGILANCE DIRECTORATE, THIRUVANANTHAPURAM 4. K.M.MANI KARINGOZHAKKAL HOUSE, PALAI, KOTTAYAM DISTRICT 5. BIJU RAMESH SAMTHRIPTHI, EAST FORT, THIRUVANANTHAPURAM. [DELETED] 6. NAJMAL HUSSAIN, DYSP SIU 1, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. [DELETED] [R5 AND R6 DELETED AS PER ORDER DATED 09/03/2017 IN IA.3779/17.] R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. R6 BY ADV. SRI.M.S.UNNIKRISHNAN R6 BY ADV. SRI.SAJU THALIATH R6 BY ADV. SRI.JITHIN PAUL VARGHESE R6 BY ADV. SRI.K.SUNIL R6 BY ADV. SMT.M.PPRIYANKA R2 & 3 BY SRI.SUMAN CHAKRAVARTHY, SC FOR DGP R4 BY ADV. SRI.M.K.DAMODARAN (SR.) R4 BY ADV. SRI.SUJITH MATHEW JOSE R BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35547 of 2016 (P) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1: A TRUE COPY OF THE JUDGMENT DATED 09.11.2015 IN OP (CRL) 376/2015 EXHIBIT P2 A TRUE COPY OF THE REPORT DATED 23.08.2016 EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM IN CRL.MP.922/2016 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 23.09.2016 IN CRIMINAL MP. 991/2016 OF THE ENQUIRY COMMISISONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM EXHIBIT P5 TRUE COPY OF THE SYNOPSIS AND LIST OF DATED AND EVENTS IN CRIMINAL MC.6775/2016 EXHIBIT P6 TRUE COPY OF THE STATEMENT DATED 17.10.2016 IN CRIMINAL MC. 6775/2016 EXHIBIT P7: TRUE COPY OF THE PETITION DATED 16.4.2016 FILED BY THE PETITIONER BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. EXHIBIT.P8: TRUE COPY OF THE REPRESENTATION DATED 16.8.2016 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P9: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE HON'BLE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM. ## RESPONDENT(S)' EXHIBITS ------------------------------ Ext.R4 (a): TRUE COPY OF THE ORDER DATED 13.01.2017 IN I.A. NO.15663/2016 IN W.P (C ) NO.30853/2016 OF THIS HON'BLE COURT. /TRUE COPY/ P.S TO JUDGE ## **P.UBAID, J.** ## **~~~~~~~~~~ W. P (C ) No.35547 of 2016 ~~~~~~~~~~~ Dated this the 28[th ] June, 2017** ## **J U D G M E N T** The 4[th] respondent herein is a former Finance Minister. He has been facing a third round of investigation in a crime registered by the Kerala Vigilance and AntiCorruption Bureau (VACB) alleging misconduct as defined under Section 13(1)(d) of the Prevention of Corruption Act, 1988. The writ petitioner herein seeks a writ of mandamus directing investigation by the Central Bureau of Investigation. The first round of investigation ended with a report in favour of the 4[th] respondent that there is no scope to prosecute him because sufficient materials to prove the alleged offence could not be collected during investigation. The court below did not accept the report, and directed the VACB to conduct a further investigation. Accordingly, a second round of investigation went on as further investigation, but that also ended in favour of the 4[th] respondent. The first report was objected by many persons including the writ petitioner herein. Anyway, while the second report was being considered by the court below, the **W. P (C ) No.35547 of 2016** **2** VACB _suo motu_ decided to make another round of further investigation, and it is now going on. The trial court has not so far taken decision on the said report, because the VACB by the time _suo motu_ proceeded for a third round of investigation. 2. First let me see whether the petitioner has any _locus standi_ to bring a writ petition like this seeking investigation by the C.B.I in a matter where a third round of investigation is now going on at the hands of the VACB. The petitioner claims to be a social activist. That apart, he cannot have any interest, and he does not project any interest. Of course, it is true that in appropriate cases where a third party is aggrieved, he can move the Constitutional Court for investigation by an effective agency. But a third party can seek relief from the Constitutional Courts by way of writ of mandamus or otherwise, only if he has some interest or concern in the investigation. By order dated 19.1.2017, this Court had directed the writ petitioner to convince the court how the writ petition is maintainable, or what exactly is his _locus standi_ to file a writ petition as a **W. P (C ) No.35547 of 2016** **3** third party, or how he is entitled to seek a writ of mandamus for C.B.I investigation in a crime, which is under investigation by the VACB. 3. The 4[th] respondent has filed statement of objection that the petitioner has brought this writ petition for personal and political ends. Of course, this is controverted by the writ petitioner in his reply affidavit. However, on a close examination of the materials including the affidavit filed by the 4[th] respondent and the reply affidavit filed by the writ petitioner, I find something suspicious in the concern expressed and projected by the writ petitioner. I find reason to believe that he has his own personal or political reason to seek a writ for CBI investigation. Judicial floor cannot in any circumstance be allowed to be used for personal or political ends. When a third party intrudes into the criminal judicial process, and seeks a direction for effective investigation by the CBI or some other agency of his choice, the person who seeks relief must have some interest in the case and also some concern in the matter. Here, I find nothing of that sort, and at the same time, I find **W. P (C ) No.35547 of 2016** **4** something to suspect regarding the bona fide of the writ petitioner. 4. Anyway, let me see whether there is any reason or ground for ordering investigation by the C.B.I in this case. In so many decisions, the Hon'ble Supreme Court has held that C.B.I investigation cannot be mechanically ordered by the Constitutional Courts. In _Sakiri Vasu v. State of U.P and others [2008 (1) KLT 724],_ the Hon'ble Supreme Court held that such request will have to be discouraged when alternative remedy is possible under the law. Here, a second round of further investigation is going on, and the report is yet to come. When such a report comes, the trial court will have to decide on the report. As a person who had intervened in the process on an earlier occasion, the writ petitioner can approach the trial court, if he finds reason for such a course. If the trial court finds reason to entertain his application, it will be considered. At this juncture, when investigation is now going on vigorously at the hands of the VACB, this Court cannot think of a C.B.I investigation. 5. In _Jomon Puthanpurackal v. State of Kerala and_ **W. P (C ) No.35547 of 2016** **5** _Others [2008 (3) KHC 775]_ , this Court has cautioned that persons claiming to be social activists, without any concern in the matter, cannot be allowed to intervene in judicial process or crime investigation. Crime investigation or criminal judicial process cannot be an area where everybody can step in and intrude, claiming public interest. Criminal administration of justice is an area where the State will have to protect the interests of all. Third parties can be allowed to intrude or interfere in the process, only if the court finds the absolute necessity of such a course, and only if the person, who seeks the relief, has some serious concern in the matter. Here, there is no such factual situation. The writ petitioner's concern, I do not think, is in terms of any public interest. 6. In _Sujatha Ravi Kiran @ Sujatasahu v. State of Kerala and Others [2016 KHC 6344]_ , the Hon'ble Supreme Court held that the extra-ordinary power of the Constitutional Court in directing C.B.I investigation must be exercised very rarely, in exceptional circumstances, and such investigation can be ordered, when there is clear lack **W. P (C ) No.35547 of 2016** **6** of confidence in the investigating agency, or can be even ordered in national interest, or for doing complete justice in the matter. In this case, I do not find such a situation for ordering C.B.I investigation. 7. A third round of investigation is now going on at the hands of the VACB. Such a course was _suo motu_ decided by the VACB, before the court below taking decision on the report submitted in court that there is no scope for a prosecution. Anyway, the trial court is yet to take a decision on the report, and by the time, the VACB _suo motu_ decided for another round of investigation. The report submitted by the VACB shows that such an investigation is vigorously going on, and that the VACB has even collected some materials, which are now subjected to scientific examination at the laboratory. The VACB is waiting for the result of the examination. The VACB has also examined so many witnesses and perused so many documents. This is a case where the VACB has made all efforts possible and collected all materials possible as part of investigation. Let the court see what happens to the third round, and how the VACB **7** ## **W. P (C ) No.35547 of 2016** would conclude the investigation. At this stage, when the VACB is about to close the investigation on the basis of the materials collected as part of the second round of further investigation, it would be unjust and inappropriate for the High Court to order investigation by the CBI. Let us wait for the result of the second round of further investigation, and let us see what decision the court below will take on the report. I am not inclined to order investigation by the CBI at this juncture. The writ petition is liable to be dismissed. In the result, this writ petition is dismissed. ma Sd/- **P.UBAID JUDGE** /True copy/ P.S to Judge