Solar scam: S Sreekumar secures relief for CM Oommen Chandy; Vigilance judge seeks voluntary retirement

After the Bar scam leading to the resignation of the State Finance Minister KM Mani, the Kerala High Court is now seized of another scam – this time, however, it is the Chief Minister Oommen Chandy himself who is embroiled in the case..The High Court today stayed an order of the Vigilance court which had directed that investigation be carried out in the allegations of bribery against the Chief Minister and State Power Minister Aryadan Muhammed. Senior Advocate S Sreekumar appeared for the Chief Minister today in the High Court..The Solar Scam.The case has its genesis in the infamous solar scam in which the accused, Saritha S Nair and Biju Radhakrishnan had floated a company called Team Solar Energy Company..They had then allegedly defrauded investors and customers to the tune of Rs. 10 crore either by offering to make them business partners in their wind mill projects or promising installation of solar panels..The scam came to light in 2013 after a complaint was made by businessman Sajad A. Following Saritha and Biju’s arrests, a bundle of allegations tumbled out including the contacts established by them with politicians including the Chief Minister’s office. Three members of Chief Minister’s office were removed from their posts after it came to light that they had used the CM’s office for securing favourable deals for Saritha and Biju..Interestingly, Biju who was already an accused for murdering his wife was sentenced to life in 2014 and is currently in jail. Amidst all this, a one-man Commission was set up to investigate into the scam. Both Saritha and Biju have been deposing before this Commission..Two days back: Saritha before Solar Commission and Vigilance Court order.Saritha S Nair deposed before the Solar Commission on January 27 that she had paid the Chief Minister Rs. 1.9 crore as bribe for facilitating government support for Solar project. State Power Minister Aryadan Muhammed had taken Rs. 40 lakhs for the same, claimed Saritha..Subsequently, on a plea by one PD Joseph, a journalist, the Court of Enquiry Commissioner and Special judge, popularly known as Vigilance Court had directed that investigation be held under Section 156(3) of the Code of Criminal Procedure (CrPC)..The order of the Vigilance Court did not give any reasons for the order. It stated that averments by Saritha constitute a cognizable offence and needs to be investigated. It, therefore, directed the Vigilance and Anti-Corruption Bureau to investigate the compliant under Section 156(3) of CRPC..Excerpts from the order are given below..“Solar Commission has conducted sitting at Ernakulam on 27.01.2016 before which she stated that she had bribed Respondents 1 and 2 and other Respondents were privy to the monetary transactions. Now it is in the pre-cognizance stage…..As a matter of fact, if the averments in the compliant are true, those averments constitute cognizable offences. Police (VACB) is having absolute powers to start the investigation. But the complainant states that police will not investigate since Respondents 1 and 2 are occupying exalted positions in the administration. .However, it is made clear that while forwarding a complaint under Sec 156(3) CrPC, the Magistrate or Special Judge is acting as a post office. I am not supposed to make any comments with regard to the merits of the case, and I have not made any comments. I have to bear in mind Art. 14 of the Constitution. Be it a villageman or the Chief Minister, Law is equal to all public servants. .Therefore, the complaint is forwarded to Director VACB, Thiruvananthapuram for investigation under Sec 156(3) CrPC. It is within the purview of the police to investigate the crime as laid down in AIR 1945 PC 18 (King Emperor v. Nazir Ahmed).”.Appeal to High Court: High Court raps Vigilance judge.The Chief Minister chose to act swiftly, filing an appeal in the High Court which came up for hearing before Justice P Ubaid today. The Bench came down upon the Vigilance court for acting “irresponsibly” and not following High Court and Supreme Court judgments in this regard. The High Court has now stayed the order of the Vigilance Court for two months..The Court observed that the Vigilance Judge “acted mechanically without knowing the nature and extent of his powers” while stating that courts must be careful while dealing with complaints and be able to identify false and mischievous complaints..“Judicial orders and even innocent and incidental observations or remarks made by courts are being sensationalised these days. The courts shall not make any contribution to such unhealthy practice. The courts must be very cautious and judicious in approach when a complaint seeking action under the PC Act comes into the court. The court must be able to identify false and mischievous complaint….if the court fails in the said process and acts mechanically ignoring and defying the settled authorities and positions, the courts will become the object of criticism, controversy and ridicule.”.Interestingly, the Court in a very theatrical fashion has lamented at the state of affairs in Kerala politics..“We the people of Kerala are in a troubling and disturbing socio-political situation of different types of “revelations”....Here is a complaint made on the basis of some revelations made by a lady before a judicial commission. Course of law cannot be carried away by such revelations or complaints made on the basis of such revelations.”.The Court also came down heavily upon the Vigilance judge for holding that the power of a special judge while forwarding a complaint under Section 156(3) of the CrPC, is akin to a post office..“If this is what the learned judge has understood about his position and responsibility as a Special Judge exercising jurisdiction and powers under the PC Act, I think the High court will have to interfere on the administrative side.”.Regarding the power of the Vigilance court to deal with complaints under the PC Act, the court, relying on the case of Lalitha Kumari v. Government of Uttar Pradesh and others, held that it will be obligatory to cause a preliminary enquiry on a compliant made under the PC Act before the complaint is forwarded to the police with a direction to register case and investigate it. If the same needs to be done without a preliminary enquiry, there should be sufficient materials showing the source of information constituting the alleged offence. It held that,.“Even without such report of enquiry, the court can forward the complaint provided the complaint contains definite materials and acceptable materials with the knowledge of the complainant or some materials showing the source of information constituting the offence alleged. A complaint alleging that somebody else made a statement or revelation somewhere or before someone cannot be treated as a proper complaint…..Here the complainant does not have any definite or solid basis. The complainant brought the complaint simply on the basis of what a lady revealed or stated before a judicial commission. It appears that quite mechanically without knowing the nature and extent of his powers under the law, the learner trial judge simply saying that he is acting only as a post office immediately forwarded the complaint to the police station for investigation.”.The Court, therefore, proceeded to stay the order of the Vigilance judge for 2 months stating that it requires examination in detail, particularly with respect to the jurisdiction of the Vigilance Judge..Things did not end there. The vigilance judge, SS Vassan, has now offered to retire and has sent a request for voluntary retirement to the Registrar of the Kerala High Court. Details on the same are awaited..Tailpiece.With the elections to the Legislative Assembly around the corner and the BJP making visible gains in the State, the ensuing court room battles could very well be a decisive factor in the battle for Thiruvananthapuram.