The Supreme Court on Wednesday stayed for seven days an investigation against former Keralam chief minister Pinarayi Vijayan, his daughter, his son-in-law, and others, to enable them to appeal against a Kerala High Court order directing the registration of a criminal case against them for an alleged pay-off by the state-run Cochin Minerals and Rutile Limited to IT firm Exalogic.
The top court allowed Vijayan and others to appeal against the October 9 order by a single judge. The top court stayed a Kerala High Court division bench order on October 15 that had dismissed his appeal.
CMRL-Exalogic case
The state registered an FIR on October 12 and was pursuing an investigation. “We direct the investigation in the FIR shall remain stayed for a week. Our order shall not be taken as an opinion expressed on the interim relief that the division bench shall fashion based on facts and the law,” a bench of justices Joymalya Bagchi and V Mohana said. The court clarified that the lodging of the FIR was not halted, but further investigation in the case was.
The high court, in its order, relied on a communication sent by the Enforcement Directorate (ED) to the state police on September 22 disclosing a cognisable offence in the CMRL-Exalogic case. It was alleged that CMRL paid a sum of over ₹2.78 crore to Exalogic Solutions Pvt Ltd — a company owned by Vijayan’s daughter Veena T — without the company rendering any services. The payments were made between 2017 and 2020.
In January 2017, CMRL engaged Vijayan’s daughter as an IT and marketing consultant on a retainership basis. By a separate agreement, CMRL engaged Exalogic for providing services in development, maintenance and management of software. However, ED alleged that the tax assessment for the years 2013-14 to 2019-20 submitted by CMRL showed additional payouts to Exalogic without any services being provided.
{{/usCountry}}In January 2017, CMRL engaged Vijayan’s daughter as an IT and marketing consultant on a retainership basis. By a separate agreement, CMRL engaged Exalogic for providing services in development, maintenance and management of software. However, ED alleged that the tax assessment for the years 2013-14 to 2019-20 submitted by CMRL showed additional payouts to Exalogic without any services being provided.
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Vijayan, represented by senior advocates Siddharth Luthra and N Hariharan, submitted to the Supreme Court that the dismissal of his appeal left him with no remedy. The lawyers stated that even the October 9 order directing the registration of an FIR and further investigation was passed without hearing Vijayan. Luthra told the court that ED, based on the fresh FIR, went on to register a fresh enforcement case information report (ECIR) on money laundering charges arising out of the same allegations, and has summoned Vijayan for questioning on October 23.
“Howsoever high you will be, you cannot be above law. We will not order a stay on the FIR,” the bench observed. “But on the points of whether cognisable offence is made out, the statutory requirement of continuation of investigation, we have said that you need to be heard by the high court,” it added.
Even the state’s action came under scrutiny as the bench said that the FIR was lodged on information shared by ED and not on its own. It cited the statutory safeguards under the Prevention of Corruption Act, particularly section 17A, which requires prior approval of the competent authority before proceeding with the investigation against a public servant.
Vijayan's lawyers spar with court
The Keralam government, represented by senior standing counsel Ramesh Babu, submitted that the ED information disclosed a cognisable offence, and that this point was held by the single judge order.
But the bench said: “It needs to be ascertained whether information received from ED under section 66(2) is a mandate. The single judge goes flip-flop on this issue. We want the division bench to apply its mind.”
Vijayan’s lawyers told the court that the high court erred by entertaining a petition filed by an advocate, KM Shajahan. They questioned Shajahan’s right to pursue the matter when the state, acting on ED’s information, had already constituted a nine-member SIT as part of its preliminary probe.
Shajahan’s lawyer, on his part, told the court that there is no requirement in law for hearing the potential accused before the registration of an FIR.
The bench responded that section 175(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) introduced a condition that requires the public servant to be heard prior to ordering investigation on a complaint arising in the course of discharge of his official duties. “You (ED) have done your statutory duty. It is for the state to do its statutory duty... Don’t use your power to meddle with the statutory powers of other investigation agencies,” justice Bagchi remarked when ED defended the high court order.
Also Read I HC order to file FIR passed without hearing me: Pinarayi Vijayan tells SC
The top court order sparked political reactions in the state.
CPI(M) state secretary MV Govindan said the Supreme Court ruling upholds the rule of law. “This is a fabricated case. CPIM has stated from the outset that it will fight the case legally and politically,” said Govindan.
Meanwhile, BJP state chief Rajeev Chandrasekhar said, “ It has only paused the Vigilance probe for a week so that Vijayan can appeal in the high court.”