Saritha S. Nair v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938 Crl.MC.No. 1784 of 2016 () --------------------------- AGAINST THE ORDER/JUDGMENT IN CC 400/2013 of J.M.F.C.-II, PATHANAMTHITTA CRIME NO. 653/2013 OF KONNI POLICE STATION , PATHANAMTHITTA PETITIONER(S): --------------------- SARITHA S.NAIR, AGED 36 YEARS, D/O.SOMARAJAN, VATTAPARA PADINJARETHIL HOUSE, CHENGANNUR. BY ADVS. SRI.C.D.JOHNY SMT.MEREENA JOSEPH RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001 (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). 2. THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 001. ## 3. THE SUPERINTENDENT OF POLICE KOTTAYAM. 4. THE DEPUTY SUPERINTENDENT OF POLICE CHENGANNUR. Crl.MC.No. 1784 of 2016 2 5. THE INSPECTOR OF POLICE - KONNI. 6. THE SUB INSPECTOR OF POLICE - KONNI. R BY SRI.ASAF ALI, DIRECTOR GENERAL OF PROSECUTIONS R BY SRI.K.P.DANDAPANI, ADVOCATE GENERAL R BY SRI.ROSHAN D. ALEXANDER, SENIOR GP WITH AG R BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1784 of 2016 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE-A1 TRUE COPY OF THE FINAL REPORT IN CC.400/2013 ON THE FILES OF THE JFCM-II, PATHANAMTHITTA ANNEXURE-A2 TRUE COPY OF THE STATEMENT SUBMITTED BY THE DE FACTO COMPLAINANT BEFORE THE JFCM, RANNI DATED 6.7.2013 RESPONDENTS' EXHIBITS : NIL _// True Copy //_ _PA to Judge_ ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl.M.C. No.1784 of 2016 ````````````````````````````````````````````````````````````` _Dated this the 4[th] day of April, 2016_ ## **O R D E R** ~ ~ ~ ~ ~ ~ The 1[st] accused in CC No.400/2013 of the Judicial First Class Magistrate's Court-II, Pathanamthitta, which has arisen from Crime No.656/2013 of Konni Police Station, for the offences under Sections 406, 419, 420 and 201 read with Section 34 IPC, has come up by seeking a fresh investigation in the case by another agency. It is the case of the petitioner that the 9[th] respondent, who is none other than the Chief Minister of Kerala, is also a party to the transactions and, therefore, the investigating agency ought to have arraigned the 9[th] respondent also as an accused in the case. It is her further case that as the investigating machinery was under the 9[th] respondent, a proper Crl.M.C.1784/2016 : 2 : investigation was not conducted and, therefore, she is entitled to have a fresh investigation in the matter by another agency. 2. Heard learned counsel for the petitioner, learned Advocate General and learned Director General of Prosecutions. 3. The complaint of the petitioner is that even if the allegation against her that she had obtained amounts from the de facto complainant in the case is admitted, the de facto complainant has got a case that he had allegedly parted with the amount on the assurance given by the 9[th] respondent that the project would take place. The instance in this case is also a part of the 'Solar Scam', which was repeatedly brought before this Court. This is a peculiar situation wherein the prime accused in the case has forwarded a demand for a fresh investigation by another agency. 4. The learned counsel for the petitioner is relying Crl.M.C.1784/2016 : 3 : on the decision in _**Vinay Tyagi v. Irshad Ali @ Deepak and**_ _**others** [(2013) 5 SCC 762],_ wherein it was held in paragraph 16: _“This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Art.21 and Art.22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency.”_ It is evident that the accused can forward such a request, for a fresh investigation, reinvestigation or further investigation, in rare occasions only in cases where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play. Normally an accused is not entitled to forward such a demand. Crl.M.C.1784/2016 : 4 : 5. The learned Advocate General has pointed out that the petitioner is an accused in altogether 33 criminal cases of same nature. It is alleged that she, along with A2, has amassed huge amounts running to crores of rupees from various members of the public, including the de facto complainant in the present case, by making various offers like participation in the business, installation of solar machinery, etc. It is the admitted case of the petitioner that she has been arraigned as an accused in altogether 33 cases. However, she has never attempted to drag the 9[th] respondent in to any of the other cases. 6. The learned counsel for the petitioner has invited the attention of this Court to the statement of the de facto complainant recorded under Section 164 Cr.P.C., to point out that he had also entertained a case that the 9[th] respondent had involvement in the matter. At the same time, on a perusal of Annexure-A2 statement recorded under Section 164 Cr.P.C., it has come out that the de facto Crl.M.C.1784/2016 : 5 : complainant has clearly deposed that he had deliberately suppressed the involvement of the 9[th] respondent before all the investigating officers. 7. It has been pointed out by the learned Advocate General and learned Director General of Prosecutions that even in the complaint preferred by the defacto complainant, he had no case that the 9[th] respondent had any involvement in the matter. It has to be noted that even now the de facto complainant has not come forward with a complaint that the 9[th] respondent has been exonerated by the investigating officer. He has no case that the 9[th] respondent has to be arraigned as an accused in the case. The petitioner, who is the prime accused in the case, has no authority to represent the de facto complainant. It seems that she has now chosen to step into the shoes of the de facto complainant to argue for and on behalf of the de facto complainant. The same cannot be permitted. 8. The learned Advocate General has invited the Crl.M.C.1784/2016 : 6 : attention of this Court to the decision of this Court rendered on 11.10.2013 in Crl.M.C. No.3536/2013, wherein the very same request was forwarded by one person named Joy Kaitharath. The request was turned down by this Court through a detailed judgment and the Crl.M.C. was dismissed. The same was taken up before the Apex Court through Special Leave to Appeal (Crl.) No.126/2014, which was summarily dismissed. 9. Over and above it, the Opposition Leader of the State had also approached the Division Bench of this Court through Writ Petition (Civil) No.10238/2014 forwarding a request for having an investigation by the CBI in all the cases relating to 'Solar Scam'. Through the judgment dated 04.03.2015, the Division Bench of this Court has dismissed the said writ petition. 10. As mandated by the Apex Court in _**Vinay Tyagi**_ (supra), such a request for fresh investigation, reinvestigation or further investigation can be forwarded by Crl.M.C.1784/2016 : 7 : an accused in a criminal case only when the investigation ex facie is unfair, tainted or malafide. Here, in this particular case, on hearing the learned counsel for the petitioner, it does not show that the petitioner has any case of her own that the investigation is ex facie unfair, tainted and malafide, as far as she is concerned. There is every reason to suspect that the present attempt of the petitioner is politically motivated. 11. In order to forward a claim for unfairness, malafides, etc, the person making such claim should have credibility. Here, can a person, who is an accused in 33 criminal cases for allegedly squeezing crores of rupees from various members of the public, claim such a credibility? Apart from all these, the learned Advocate General and learned Director General of Prosecutions have pointed out that the present attempt is nothing but political gimmicks being played in the eve of the assembly elections. In this context, it has to be noted that even though the final report Crl.M.C.1784/2016 : 8 : was filed in the case before the court below in early 2013, the petitioner was sleeping over the matter. She has chosen this particular period for forwarding such a demand. Even the learned counsel for the petitioner has fairly admitted that there is delay on the part of the petitioner in forwarding the present demand. 12. The petitioner cannot make use of the court room as a play ground for playing politics at the eve of the assembly elections. The present request forwarded by the petitioner cannot be entertained. What all arguments she has, she can take up before the court below at appropriate stage. When trial is going on, she can take up all her contentions before the court below. This Crl.M.C. is devoid of merits and is only to be dismissed and I do so. In the result, this Crl.M.C. is dismissed. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/04/04 _// True Copy // PA to Judge_