KUNGA NIMA LEPCHA & ORS.versusSTATE OF SIKKIM & ORS.

                    [2010] 3 S.C.R. 787


              KUNGA NIMA LEPCHA & ORS.                           A
                              v.
                 STATE OF SIKKIM & ORS.
           (Writ Petition (Civil ) No. 353 of 2006)

                      MARCH 25, 2010
                                                                 B
 [K.G. BALAKRISHNAN CJI, P. SATHASIVAM AND J.M.
                 PANCHAL, JJ.]

       Constitution of India, 1950: Article 32 - Public Interest
 Litigation - Against Chief Minister - By persons belonging C
 to political parties - Alleging possession of assets
 disproportionate to known source of income and criminal
 misconduct - Seeking initiation of investigation by CBI -
 Held: The writ petition in the nature of PIL not maintainable -
 The status of petitioners as belonging to political party leads D
 to apprehension that the petition is not the result of public-
 spirited concern - Writ jurisdiction can be exercised only when
 there is violation of fundamental rights and not where statutory
 remedies are available - A/legation of infringement of
 fundamental rights in the instant case is vague - Alleged acts E
 cannot be automatically equated with violation of Article 14 -
 The alleged acts can come within the ambit of statutory
offences under Prevention of Corruption Act - Proceedings
can be brought before writ court only on exhaustion of ordinary
remedies - Court cannot in exercise of jurisdiction under F
Article 32 direct initiation of investigation - The scope of
intervention by court of first instance is controlled by statutory
provisions i.e. Cr.P.C. - Direction for initiation of investigation
by the Highest Court would also prejudice the accused -Even
otherwise, High Court is the more appropriate forum for
examining the a/legations in the instant case - Public Interest G
Litigation - Investigation - Prevention of Corruption Act, 1988
- Constitution of India, 1950 - Article 14 - Code of Criminal
Procedure, 1973 - Locus Standi.

                             787                                 H
    788      SUPREME COURT REPORTS             [2010] 3 S.C.R.


A      The present writ petition was filed as a Public Interest
  Litigation under Article 32 of the Constitution of India,
  alleging that respondent No. 2 (Chief Minister of the State)
  has misused public office to amass assets
  disproportionate to his known sources of income; and
B also misappropriated public money. The writ petitioner
  sought writ in the nature of Mandamus directing CBI to
  investigate the awarding of Goverr:iment contracts and/
  or work orders by respondent-State during the tenure of
  respondent No. 2 as the Chief Minister. The petitioner also
c sought CBI Investigation against respondent No. 2, his
  relatives and other guilty officials.

         Petitioner No. 3 sought permission to withdraw from
    the proceedings stating that he filed the writ petition at
    the instance of former Chief Minister of the State.
D
          Dismissing the petition, the Court

       HELD: 1. The fact that this petition was instituted at
  the initiative of four individuals belonging to a political
E party raises the 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. The writ jurisdiction exercised by
  Supreme Court cannot be turned into an instrument of
  such partisan considerations. However, even if the locus
F standi of the petitioners is accepted, keeping in mind that
  allegations of corruption on the part of the incumbent
  Chief Minister do touch on public interest, Supreme Court
  is not the appropriate forum for seeking the initiation of
  investigation. [Para 7] [794-F-G]
G
       2. It is true that this Court has copious powers under
  Article 32 of the Constitution for the purpose of enforcing
  the rights enshrined in Part Ill of the Constitution.
  However, the remedies evolved by way of writ jurisdiction
H are of an extraordinary nature. They cannot be granted
KUNGA NIMA LEPCHA & ORS. v. STATE OF SIKKIM 789
                 & ORS.
as a matter of due course to provide redressal in              A
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    B
made a rather vague argument that the alleged acts of
corruption amount to an infringement of Article 14 of the
Constitution of India. The guarantee of 'equal protection
before the law' or 'equality before the law' is violated if
there is an unreasonable discrimination between two or         c
more individuals or between two or more classes of
 persons. 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'. The alleged acts can easily come within the ambit        0
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. [Paras 9 and 10] [795-E-H; 796-A-
B]
                                                               E
     Vineet Narain v. Union of India (1998) 1 SCC 226,
referred to.

      3.1. The onus of launching an investigation into such
matters is clearly on the investigating agencies such as F
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.
In the past, writ jurisdiction has been used to monitor the G
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 H
    790     SUPREME COURT REPORTS              [2010] 3 S.C.R.


A investigating agencies among other reasons. 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
B the domain of the executive and it is upto the
  investigating agencies themselxes 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 Cr.P.C. which empower the
c courts of first instance to exercise a certain degree of
  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. [Para 1O] [796-B-H]
0
       3.2. Supreme Court cannot sit in judgment over a
  question whether investigations should be launched
  against politicians for alleged acts of corruption. The
  Supreme Court of India functions as a Constitutional
E 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.
F 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. [Para 11] [797-A-C]

G        4. While it could be appreciated that the efforts to
    uncover the 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
H
 KUNGA NIMA LEPCHA & ORS. v. STATE OF SIKKIM 791
                  & ORS.
before a writ court and in any case the High Court of                  A
Sikkim would be a far more appropriate forum for
examining the allegations made in the present petition.
[Para 11) [797-C-E]

                        Case Law Reference
                                                                       B
      (1998) 1 sec 22s           Referred to.             Para 8


    CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
353 of 2006.                                                           c
    Vinod Bobde, Annam D.N. Rao, Arunabh Chowdhury,
Anupam Lal Das for the Appellants.

    Mohan, Parasaran, ASG, K.K. Venugopal, Alaf Ahmad,
Ram Jethmalani, Sonam P. Wangdi, A.G., Mariarputham,                   p
Anukur Talwar (for Arputham, Aruna & Co.), Tufail A. Khan, B.K.
Prasad (for P. Parmeswaran), P.R. Mala, Joyeta, Banerjee,
Saurabh G1,1pta, Rajdeep Banerjee, V. Mahana for the
Respondents.
                                                                       E
      The Judgment of the Court was deliver:ed by

      K. G. BALAKRISHNAN, CJI. 1. The present writ petition
was instituted in; this Court by way of public interest litigation
 under Article 32 of the Constitution of India. The petitioners have
 levelled some allegations against the incumbent Chief Minister        F
 of the State of Sikkim who was impleaded as Respondent No.2
 herein. The crux of these allegations is that he has misused his
 public office to amass assets disproportionate to his known
sources of income. The petitioners have also alleged that he
has misappropriated a large volume of public money at the cost         G
of the Government of India and the Government of Sikkim'. The
relief sought by the petitioners is the issuance of a writ of
mandamus directing the Central Bureau of Investigation (CBI)
to investigate the allegations that have been levelled against
~m.                                                   .                H
    792       SUPREME COURT REPORTS                  [2010] 3 S.C.R.

A        2. It may be recalled that the State of Sikkim had become
   a 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
   371 F into the constitutional text which lays down special
B 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-
e enforcement of the Income Tax Act is a relevant consideration
   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
D 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.
E
        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
F 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 family's
G 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. !         I
                           .                                             I


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



 .!<UNGA NIMA LEPCHA & ORS. v. STATE OF SIKKIM 793
         & ORS. [K.G. BALAKRISHNAN, CJI.]
     incorporated a detailed description of the movable and               A
     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            B
     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          c
     by submitting that the relevant information was procured in
     response to applications 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            D
         Mandamus commanding the Director, Central Bureau of
         Investigation to investigate the awarding of government
         contracts and/or work orders by th( Respondent No. 1
         State of Sikkim during the tenure oft, 1e Respondent No.2
         as the Chief Minister of the State of Sikkim viz a viz           E
         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;
                                                                          F
         (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      G
         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;

                                                                          H



                                                                  I   •
    794       SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A         (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.
8   Thereafter, Sh. Ram Jethmalani, Sr. Adv. made oral
    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'
C 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
D 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
E 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
  apprehension that they were motivated by a sense of political
F 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
G 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.

H         8. It is of course true that this Court has copious powers
KUNGA NIMA LEPCHA & ORS. v. STATE OF SIKKIM 795
      & ORS. [K.G. BALAKRISHNAN, CJI.]
under Article 32 of the Constitution for the purpose of enforcing       A
the rights enshrined in Part Ill 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          B
Narain v. Union of India (1998) 1 SCC 226 (Para. 49):

     "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           C
     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 ... "           D

      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          E
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
                                                                        F
an infringement of Article 14 of the Constitution of India. We
do not find any merit in this assertion because the guarantee
of 'equal protec.tion before the law' or 'equality before the law'
is violated if there is an unreasonable discrimination between
two or more individuals or between two or more classes of
persons. Clearly the alleged acts of misappropriation from the          G
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              H
    796      SUPREME COURT REPOiffS                  [2010] 3 S.C.R.

A   offences such as those of ' rnssession of assets
    disproportionate to known sourcE; of income' as well as
    'criminal misconduct' under the Prl ention of Corruption Act,
    1988. The onus of launching an investigation into such matters
    is clearly on the investigating agencies such as the State
B 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
C 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 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
D 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
E 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 ·
F 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
G Procedure which empower the courts of first instance to
   exercise a certain degree of 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
H standards for the same.
 KUNGA NIMA LEPCHA & ORS. v. STATE OF SIKKIM 797
       & ORS. [K.G BALAKRISHNAN, CJI.]
        11. Hence it is our conclusion that the petitioners' prayer   A
  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          B
  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          c
  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 alleged acts of
  corruption may be obstructed by entrenched interests, in this
  particular case the petitioners would be well advised to rely on    0
  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.
                                                                      E
     12. Hence, the writ petition is dismissed, however with no
 order as to costs.

 K.K.T.                                 Writ Petition dismissed.