IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8958 of 2010(T)
1. P.A.VISVAMBARAN,AGED 60 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY CHIEF
... Respondent
2. CHIEF MINISTER OF KERALA,REPRESENTED BY
3. THE ADDITIONAL CHIEF SECRETARY(HOME),
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.BLAZE K.JOSE
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :02/08/2010
O R D E R
C.R.
C .N. RAMACHANDRAN NAIR, &
P.S. GOPINATHAN, JJ.
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W. P. C. No. 8958 of 2010
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Dated this the 2nd day of August, 2010
JUDGMENT
Ramachandran Nair, J.
Petitioner served as Inspector in the Central Intelligence Bureau
and took voluntary retirement in 1996. He was a member of the
Special Investigation Team constituted in 1994 to enquire into the then
known ISRO Espionage case. The Special Investigation Team was
constituted with senior level police officer from Kerala as Head of the
investigation agency. However, during the course of investigation by
the SIT, investigation was referred to CBI on 3.12.1994. This was with
the approval of the then State Government. However, CBI after
enquiry filed a report in the CJM’s court stating that there is no
substance in the allegations and there is no case to be proceeded against
any of those named in the FIR. CJM in terms of the report filed by the
CBI closed the matter. However, the State Government ordered fresh
enquiry after recalling the consent given for CBI investigation. This
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was challenged by those arrayed as accused by the SIT before this
Court, but without success. This Court permitted further investigation
by the SIT against which SLP was filed. The Supreme Court vide
judgment reported in MARIAM RASHEEDA V. STATE OF
KERALA, (1998) 1 KLT 835 (SC) put a quietus to the matter by
stating that after CBI concluded the investigation there is no scope for
any enquiry by SIT in terms of the State Government’s order. The
Supreme Court adversely commented upon the role of the State
Government and also the Director General of Police, Kerala. Later, the
victims who faced investigation by SIT approached the National
Human Rights Commission, which passed certain interim orders
granting compensation and the State Government challenged those
orders before this Court. It is reported that this Court has interfered
with the interim orders passed by NHRC and it is not known whether
the matter is still pending or not.
2. On being dissatisfied with CBI enquiry and closure of the
matter and after judgment of the Supreme Court, the petitioner
approached this Court with a Writ Petition, WPC 24780 of 2003
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wherein the relief sought for was judicial enquiry. This Court vide
judgment dated 25.8.2003 dismissed the Writ Petition. It is to be noted
that question of judicial enquiry was considered by the State
Government at that time and when the State declined to order judicial
enquiry, the then opposition leader filed O.P.No. 5128 of 1996 before
this Court which was also dismissed vide Ext.P1 judgment dated
27.5.1996. As the matters stood as above, petitioner filed a
representation Ext.P2 on 13.7.2006 before the Chief Minister of the
State requesting him to order judicial enquiry. Though Government
referred the representation to the Home Ministry, petitioner has not
heard anything about the matter. Petitioner therefore filed another
representation on 10.10.2007 which is also a representation to the Chief
Minister for holding judicial enquiry. Since Chief Minister of the State
has not responded to the petitioner’s representations made in 2006 and
2007 petitioner has filed this Writ Petition for direction to the
Government to consider and pass orders on the representations. We
have heard counsel appearing for the petitioner, Government Pleader
for respondents 1 and 3, respondent 2 having been deleted, and counsel
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appearing for additional fourth respondent impleaded as per order
dated 26.3.2010 at his request.
3. During admission hearing of this matter before us, counsel
appearing for the addl. fourth respondent impleaded submitted that
WPC itself is filed without any bona fides and it is only to resist the
relief sought for by the said respondent in WPC 8080 of 2010 filed by
him. Even though we have not heard that case, we notice that WPC
8080 of 2010 is a public interest litigation filed by the addl. fourth
respondent herein for a direction to the State Government to take
appropriate action against the government officials based on CBI
recommendation and observations of the Supreme Court.
4. The question to be considered is whether petitioner is entitled
to mandamus to the State Government to consider appointment of
judicial commission to inquire into the matter. Sri. A.X. Varghese,
counsel appearing for the petitioner submitted that the very purpose of
judicial enquiry is to bring out true facts for information of the public
and to prevent repetition of such lapses or mistakes in the future.
Though in principle we accept the contention of learned counsel for the
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petitioner that judicial enquiry will help to bring out truth and in
appropriate cases it should be ordered, we are not inclined to issue any
direction to the State Government to consider petitioner’s
representations for appointment of judicial commission in this matter
for more than one reason. In the first place we do not think a
mandamus can be issued to the Government for appointment of judicial
commission under Section 3 of the Commission of Inquiry Act which
is a matter to be initiated and decided in Assembly and if not by the
Government suo motu. Secondly if at all a mandamus can be issued to
the Government to consider representations for appointment of judicial
commission, we do not think developments in this case justify any such
decision by Government because in our view after the judgment of the
Supreme Court and two judgments of this Court above referred,
Government will not be justified in ordering judicial enquiry in the
matter. In the first place, the Supreme court vide judgment reported in
MARIAM RASHEEDA’s case (supra) accepted the closure of the
investigation by the CBI and the orders passed by CJM closing the
matter and so much so there is no scope for further enquiry at all. In
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fact retrospective withdrawal of sanction granted by the State
Government and the proposal of the State Government to order fresh
investigation by it’s police agency was turned down by the Supreme
Court. It is also to be noted that this Court has considered the question
of issuing a mandamus to the Government to order judicial enquiry on
a Writ Petition filed by the then opposition leader of the assembly vide
Ext.P1 judgment but rejected the request. Similarly even though
petitioner filed WPC No. 24780 of 2003 for re-ordering investigation,
he did not succeed, and at that time he had no request for a judicial
enquiry. It is seen from the judgment of the Supreme Court above
referred that Supreme Court accepted the CBI report and even ordered
heavy costs of Rs. 1 lakh against the State payable to all accused. The
so-called Espionage is alleged to have taken place in the year 1994 and
the matter got finally concluded by the judgment of the Supreme Court
in 1998. We do not find any bona fides in the petitioner approaching
this Court at this distance of time, that is 12 years after the judgment of
the Supreme Court, for a direction to the State Government to consider
his request for appointing a Judicial Commission to inquire into the
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matter. As already stated, desirability of judicial commission was
already considered by this Court and the request was turned down by
this Court vide Ext.P1 judgment, that too filed by the then opposition
leader. Even when the petitioner approached this Court in 2003,
petitioner had no demand for appointment of any judicial commission.
It is also seen that petitioner had not shown any interest even when the
matter was pending before this Court or Supreme Court. Therefore we
are of the view that the object of the writ petition is not appointment of
judicial commission but to offer resistence to the Writ Petition filed by
addl. fourth respondent herein for appropriate direction to the State and
it’s agencies to take action pursuant to CBI report and observations of
the Supreme Court.
Writ Petition lacks any bona fides and the same is dismissed.
(C.N.RAMACHANDRAN NAIR)
Judge.
(P.S. GOPINATHAN)
Judge.
WPC 8958/2010 8 kk