Kunga Nima Lepcha & Ors vs State Of Sikkim & Ors

full fledged state of the Union of India, following the enactment

of the Thirty-sixth Amendment to the Constitution which was

given effect in 1975. The said amendment had inserted Article

371F into the constitutional text which lays down special

provisions with respect to the governance of the State of

Sikkim. We must also take note of the fact that even though

the Income Tax Act, 1961 had been extended to the State of

Sikkim in 1989, it has not been enforced till date on account

of the constitutionally mandated special treatment. The non-

enforcement of the Income Tax Act is a relevant consideration

2 since it entails that the income details of individuals who

belong to and reside in Sikkim are not recorded by the Income

Tax Department. Furthermore, the finances of the government

of Sikkim are enhanced by the various developmental and

welfare schemes of Government of India. Respondent No. 2 is

the founder President of the Sikkim Democratic Front and he

has been serving as the Chief Minister of the State of Sikkim

since 12th December, 1994. Under his leadership, the Sikkim

Democratic Front has been successful in the periodic elections

held to constitute the State Legislative Assembly.

3. However, the petitioners have levelled some serious

allegations of wrongdoing on part of the second respondent. In

Annexure P-1 of the writ petition submitted before this Court,

a list of his family members has been provided. This list refers

to 21 members which includes 2 wives, 4 sons, 1 daughter, 4

brothers, 6 sisters-in-law, 1 father-in- law, and 3 brothers-in-

law. It has been pointed out that in order to contest the

elections to the State Legislative Assembly from the 13-

Damthang Constituency in the year 2004, he had declared his

3 family's assets taken together to be Rs. 4,76,54,238/-. This

declaration was made as per the requirements of the

Representation of People Act, 1951. However, the petitioners

have alleged that the total assets actually amount to more

than Rs. 25 crores.

4. In Paragraph 29 of the writ petition, the petitioners have

incorporated a detailed description of the movable and

immovable assets that allegedly belong to Respondent No. 2

and his relatives. Furthermore, the petitioners have also

alleged that Respondent No. 2 has acquired several immovable

properties either in his own name or in the name of his

relatives or in the name of his nominees by way of

misappropriating funds from the public exchequer. In

Annexure P-20, the petitioners have alleged that the

Government of Sikkim acting through the Sikkim Power

Development Corporation has misappropriated an amount of

Rs. 15.38 crores from the public exchequer. The petitioners

have supported these allegations by submitting that the

relevant information was procured in response to applications

4 filed under the Right to Information Act, 2005. It will also be

useful to reproduce the prayer sought by the petitioners in the

following words:

"(a) issuance of an appropriate writ in the nature of Mandamus commanding the Director, Central Bureau of Investigation to investigate the awarding of government contracts and/or work orders by the Respondent No. 1 State of Sikkim during the tenure of the Respondent No.2 as the Chief Minister of the State of Sikkim viz a viz amassing of huge assets and/or wealth by the Respondent No. 2 and his relatives with a direction upon it to submit its report before this Hon'ble Court within a time frame fixed by this Hon'ble Court;

(b) issuance of an appropriate writ in the nature of mandamus commanding the Director, Central Bureau of Investigation to investigate the matter against the Respondent No. 2, his relatives and other guilty officials and take appropriate legal action by way of registration of FIR under the general provisions of law and the provisions of Prevention of Corruption Act, 1988;

(c) order for rule nisi in terms of the prayers above;

(d) pass such further order(s) and/or direction(s) as this Hon'ble Court may deem fit and proper."

5. In the course of the proceedings before this Court,

Sh. Vinod Bobde, Sr. Adv. argued on behalf of the petitioners.

Thereafter, Sh. Ram Jethmalani, Sr. Adv. made oral

5 submissions on behalf of the respondents, followed by Sh.

K.K. Venugopal. Sr. Adv. Thereafter, Sh. Vinod Bobde, Sr. Adv.

made his submissions in rejoinder.

6. Before addressing the substance of the petitioners'

submissions, it must be mentioned that there are four

petitioners in this case who are serving as office-bearers of a

political party in Sikkim. Petitioner No. 3 has affirmed through

an affidavit dated 31st August, 2007, that they were advised to

file a writ petition before this court by former Chief Minister of

the State of Sikkim and currently serving as President of a

political party. In fact, Petitioner No. 3 has sworn on affidavit

that he had joined these proceedings as a petitioner at the

instance of him. He has also cast aspersions on the motives of

Sh. Kunga Nima Lepcha (Petitioner No. 1) for filing the present

writ petition. In view of this position, Petitioner No. 3 had

sought permission to withdraw from the proceedings.

7. The fact that this petition was instituted at the initiative of

four individuals belonging to a political party raises the

6 apprehension that they were motivated by a sense of political

rivalry rather than a public-spirited concern about the misuse

of office by the incumbent Chief Minister. We must of course

emphasise that the writ jurisdiction exercised by this Court

cannot be turned into an instrument of such partisan

considerations. However, even if we were to accept the locus

standi of the petitioners keeping in mind that allegations of

corruption on part of the incumbent Chief Minister do touch

on public interest, this Court is not the appropriate forum for

seeking the initiation of investigation.

8. It is of course true that this Court has copious powers

under Article 32 of the Constitution for the purpose of

enforcing the rights enshrined in Part III of the Constitution.

Over the years, this Court has creatively expanded its writ

jurisdiction to provide redress against the infringement of

fundamental rights and concurrently relied on Article 142 to

do complete justice in the matters before it. As explained by

J.S. Verma, C.J., in Vineet Narain v. Union of India (1998) 1

SCC 226 (Para. 49):

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"49. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognized and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role..."

9. However, the remedies evolved by way of writ jurisdiction

are of an extraordinary nature. They cannot be granted as a

matter of due course to provide redressal in situations where

statutory remedies are available. It is quite evident that the

onus is on the petitioners to demonstrate a specific violation of

any of the fundamental rights in order to seek relief under writ

jurisdiction. In the present petition, the petitioners have made

a rather vague argument that the alleged acts of corruption on

part of Shri Pawan Chamling amount to an infringement of

Article 14 of the Constitution of India. We do not find any

merit in this assertion because the guarantee of `equal

protection before the law' or `equality before the law' is violated

if there is an unreasonable discrimination between two or

8 more individuals or between two or more classes of persons.

Clearly the alleged acts of misappropriation from the public

exchequer cannot be automatically equated with a violation of

the guarantee of `equal protection before the law'.

10. Furthermore, we must emphasise the fact that the alleged

acts can easily come within the ambit of statutory offences

such as those of `possession of assets disproportionate to

known sources of income' as well as `criminal misconduct'

under the Prevention of Corruption Act, 1988. The onus of

launching an investigation into such matters is clearly on the

investigating agencies such as the State Police, Central

Bureau of Investigation (CBI) or the Central Vigilance

Commission (CVC) among others. It is not proper for this court

to give directions for initiating such an investigation under its

writ jurisdiction. While it is true that in the past, the Supreme

Court of India as well as the various High Courts have indeed

granted remedies relating to investigations in criminal cases,

we must make a careful note of the petitioners' prayer in the

present case. In the past, writ jurisdiction has been used to

9 monitor the progress of ongoing investigations or to transfer

ongoing investigations from one investigating agency to

another. Such directions have been given when a specific

violation of fundamental rights is shown, which could be the

consequence of apathy or partiality on part of investigating

agencies among other reasons. In some cases, judicial

intervention by way of writ jurisdiction is warranted on

account of obstructions to the investigation process such as

material threats to witnesses, the destruction of evidence or

undue pressure from powerful interests. In all of these

circumstances, the writ court can only play a corrective role to

ensure that the integrity of the investigation is not

compromised. However, it is not viable for a writ court to order

the initiation of an investigation. That function clearly lies in

the domain of the executive and it is upto the investigating

agencies themselves to decide whether the material produced

before them provides a sufficient basis to launch an

investigation. It must also be borne in mind that there are

provisions in the Code of Criminal Procedure which empower

the courts of first instance to exercise a certain degree of

10 control over ongoing investigations. The scope for intervention

by the trial court is hence controlled by statutory provisions

and it is not advisable for writ courts to interfere with criminal

investigations in the absence of specific standards for the

same.

11. Hence it is our conclusion that the petitioners' prayer

cannot be granted. This court cannot sit in judgment over

whether investigations should be launched against politicians

for alleged acts of corruption. The Supreme Court of India

functions as a Constitutional Court as well as the highest

appellate court in the country. If the Supreme Court gives

direction for prosecution, it would cause serious prejudice to

the accused, as the direction of this Court may have far

reaching persuasive effect on the Court which may ultimately

try the accused. It is always open to the petitioners to

approach the investigative agencies directly with the

incriminating materials and it is for the investigative agencies

to decide on the further course of action. While we can

appreciate the general claim that the efforts to uncover the

11 alleged acts of corruption may be obstructed by entrenched

interests, in this particular case the petitioners would be well

advised to rely on the statutory remedies. It is only on the

exhaustion of ordinary remedies that perhaps a proceeding

can be brought before a writ court and in any case the High

Court of Sikkim would be a far more appropriate forum for

examining the allegations made in the present petition.

12. Hence, the writ petition is dismissed, however with no

order as to costs.

................................CJI [K.G. BALAKRISHNAN]

...........

........................J. [P. SATHASIVAM]

................ ................J. [J. M. PANCHAL]

New Delhi March 25, 2010

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