By P. Sreekumaran
THIRUVANANTHAPURAM: In an order which brings relief to former Chief Minister of Keralam and Leader of the Opposition Pinarayi Vijayan, the Supreme Court has stayed, for 10 days, a State police investigation into a First Information Report (FIR) registered against him, his daughter T. Veena and son-in-law Mohammed Riyas in the CMRL-Exalogic payoff case.
The order was passed by a Special Bench of the apex court, comprising Justices Joymala Bagchi and V. Mohana, convened in the middle of Dussehra vacations, to hear Vijayan, who voiced fears of his imminent arrest and his family members.
The top order set aside an October 15 order of the Kerala High Court Division Bench and directed it to hear the appeals filed by Vijayan and the other two petitioners against the registration of the FIR. No matter how low or high a person was, he was subject to the rule of law and principles of natural justice, said Justice Bagchi.
Justice Bagchi, however, said, “We will not disturb the FIR, but we will stall the investigation…Further, we are sending this case back to the High Court for adjudication.” A single bench of the Kerala High Court had directed the State police to register the FIR under the Prevention of Corruption Act, 1988 against the three of them based on information furnished by the Directorate of Enforcement (ED), to the Kerala Police under Section 66(2) of the Prevention of Money Laundering Act (PMLA), 2002.
Pinarayi and the two co-petitioners submitted in the apex court that they were neither made parties nor heard by the single judge bench before the registration of the FIR was ordered on October 9. The order denied leave for the petitioners to appeal against the order by a Division Bench on October 15, compelling them to move the SC.
It must be mentioned that the Special Bench has not recorded any opinion on the validity of the subsequent Enforcement Case Information Report (ECIR) registered against the petitioners. The court, however, gave them the freedom to challenge the ECIR before the appropriate forum in accordance with the law.
The State’s argument was that the SC’s own 2022 judgment in Vijay Madanlal Chaudhary versus Union of India had termed the ED’s passing on information or material regarding an alleged crime under Section 66(2) of the PMLA as a “direction” to the State to register an FIR.
The Bench observed that Section 66(2) of the PMLA was not a “mandate”, but only an “intimation” of information or material with the ED to another agency. It was solely for the latter agency – the Kerala Police in this case – to decide if “any other law” applied, requiring the lodging of an FIR. The Court made it very clear that the ED and the PMLA were not omniscient. “The PMLA cannot be a ‘super administrator’, mandating everything everywhere. Every executive exercise of power like the registration of an FIR cannot be assumed by the PMLA,” Justice Bagchi observed.
The judge also warned the ED against extending their statutory powers under the PMLA. While the ED had “full powers” to investigate hawala operations to former Chief Ministers under the PMLA, it would not “meddle in the statutory domains of other entities”, Justice Bagchi said.
The judge also wanted to know if the Police had sought prior approval under Section 17A of the 1988 Act from the Government for investigating a former Chief Minister. Justice Bagchi asked if the State had gone through the new criminal procedure provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Unlike Section 156(3) of the repealed Code of Criminal Procedure, Section 175(4) of the BNSS required the Magistrate to formally hear an accused public servant. The judge also “corrected” the State’s version that the probe under the FIR was “court-ordered”.
Meanwhile, Pinarayi has decided not to appear before the ED in Kochi for questioning in connection with the case on Friday.
The central agency had issued a summons last week, asking him to appear at its zonal office around 11 a.m. for interrogation. Counsel for Pinarayi informed the ED that Pinarayi will not appear for questioning as the Supreme Court had on Wednesday stayed, for 10 days, a Kerala Police probe into an FIR registered against him, Ms Veena and Mr. Riyas in the pay-off case.
Pinarayi also cited an apex court order permitting him to file an appeal before the Kerala High Court against the single bench order on October 9.
There are unconfirmed reports that the ED is likely to oppose the appeal to be filled by Pinarayi before the High Court. (IPA Service)
