Justice M Nirmal Kumar of Madras HC has refused to quash a case booked against Minister I Periyasamy & retired IPS officer Jaffar Sait’s wife for alleged irregularities in allotment of TNHB plots. Savukku Shankar is the complainant in this case. Charge sheet not quashed against minister THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR CRL.O.P.Nos.30357 & 31323 of 2019 and CRL.R.C.Nos.147 & 527 of 2020 and CRL.M.P.Nos.16426, 17085 & 17088 of 2019 and 1047, 1049, 4170 & 4171 of 2020. For Petitioner in Crl.O.P.No.30357 of 2019 : Mr.I.Subramaniam, Senior Counsel for Mr.M.Mubarak Ahmad, M/s.Ahmad Associates For Petitioner in Crl.O.P.No.31323 of 2019 : Mr.N.R.Elango, Senior Counsel for Mr.A.Saravanan For Petitioner in Crl.R.C.No.147 of 2020 : Mr.N.R.Elango, Senior Counsel for Mr.S.Manuraj For Petitioner in Crl.R.C.No.527 of 2020 : Mr.N.R.Elango, Senior Counsel for Mr.S.Anbalagan For Respondent in CRL.O.P.No.30357 of 2019 and CRL.R.C.Nos.147 & 527 of 2020 and for R1 in CRL.O.P.No.31323 of 2019 : Mr.Hasan Mohamed Jinnah, State Public Prosecutor assisted by Mr.A.Damodaran, Additional Public Prosecutor For R2 in CRL.O.P.No.31323 of 2019 : Mr.N.Ramesh ***** COMMON ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.01.2022 PRONOUNCED ON : 11.11.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.Nos.30357 & 31323 of 2019 and
CRL.R.C.Nos.147 & 527 of 2020 and
CRL.M.P.Nos.16426, 17085 & 17088 of 2019 and
1047, 1049, 4170 & 4171 of 2020
- Parvin … Petitioner in CRL.O.P.No.30357 of 2019
- Periasamy … Petitioner in CRL.O.P.No.31323 of 2019
- Rajamanickam, M/75 years,
Former Secretary of Ex Chief Minister of Tamil Nadu, Chennai,
R/A at No.65, Defence Colony,
Nandambakkam,
Chennai. … Petitioner in CRL.R.C.No.147 of 2020
- Durgashankar … Petitioner in CRL.R.C.No.527 of 2020
Versus
1.The Directorate of Vigilance and Anti-Corruption,
Represented by the Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Chennai City-I Detachment,
Chennai – 600 028. … Respondent in CRL.O.P.No.30357 of 2019
2.State Rep by,
Deputy Superintendent of Police, V & AC, Chennai City-I Detachment, Chennai-28.
3.A.Shankar … Respondents in CRL.O.P.No.31323 of 2019
4.State Rep. by,
The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Chennai City – I Detachment,
Chennai – 600 028. … Respondent in CRL.R.C.Nos.147 & 527 of 2020
PRAYER in CRL.O.P.No.30357 of 2019: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records of the impugned proceedings in C.C.No.14/2019 pending on the files of the Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly, Chennai and quash the same as against the petitioner.
PRAYER in CRL.O.P.No.31323 of 2019: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the entire records in C.C.No.14 of 2019 on the file of the learned Additional Special Court for Trial of Criminal Cases Related to Elected Member of Parliament and Members of Legislative Assembly of Tamil Nadu, Singaravelar Maaligai, Chennai and quash the same in so far the petitioner is concerned.
PRAYER in CRL.R.C.No.147 of 2020: Criminal Revision is filed under Section 397 r/w 401 of the Code of Criminal Procedure, to set aside the order passed by the Additional Special Court for Cases Related to Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai – 600 001 in Crl.M.P.No.17829 of 2019 in C.C.No.14 of 2019.
PRAYER in CRL.R.C.No.527 of 2020: Criminal Revision is filed under Section 397 r/w 401 of the Code of Criminal Procedure, to set aside the order dated 20.12.2019 passed by the Additional Special Court for Trial of Cases related to Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai in Crl.M.P.No.20625 of 2019 in C.C.No.14 of 2019.
For Petitioner
in Crl.O.P.No.30357 of 2019 : Mr.I.Subramaniam, Senior Counsel for
Mr.M.Mubarak Ahmad,
M/s.Ahmad Associates
For Petitioner
in Crl.O.P.No.31323 of 2019 : Mr.N.R.Elango, Senior Counsel for Mr.A.Saravanan
For Petitioner
in Crl.R.C.No.147 of 2020 : Mr.N.R.Elango, Senior Counsel for Mr.S.Manuraj
For Petitioner
in Crl.R.C.No.527 of 2020 : Mr.N.R.Elango, Senior Counsel for Mr.S.Anbalagan
For Respondent in CRL.O.P.No.30357 of 2019 and CRL.R.C.Nos.147 & 527 of 2020 and
for R1 in CRL.O.P.No.31323
of 2019 : Mr.Hasan Mohamed Jinnah,
State Public Prosecutor assisted by
Mr.A.Damodaran,
Additional Public Prosecutor
For R2 in CRL.O.P.No.31323 of 2019 : Mr.N.Ramesh
*****
COMMON ORDER
CRL.O.P.Nos.30357 & 31323 of 2019 have been filed to quash the proceedings in C.C.No.14 of 2019, pending on the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly, Chennai/trial Court in so far as the petitioners/A2 & A6 are concerned.
2.CRL.R.C.Nos.147 & 527 of 2020 have been filed by the petitioners/A4 & A5 to set aside the order, dated 20.12.2019, made in Crl.M.P.Nos.17829 & 20625 of 2019 in C.C.No.14 of 2019 by the learned
Assistant Sessions Judge, Additional Special Court for Cases Related to
Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai/trial Court.
3.Since all the petitions are arising out of C.C.No.14 of 2019, this Court disposes all the petitions by way of common order. Since the petitioners herein are 2nd, 4th, 5th & 6th accused in C.C.No.14 of 2019, for the sake of convenience and clarity, they are referred to, as per their rank, in the charge sheet.
4.Gist of the case in C.C.No.14 of 2019 is as follows:-
(i)The respondent Police registered a case in Crime No.7/AC/2011 against seven accused, for offence under Sections 120(B) & 409 IPC and Sections 13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 and 109 IPC. A1-M.S.Jaffar Sait, I.P.S., was the Inspector General of Police,
Intelligence at Chennai during the period from 18.05.2007 to 31.12.2010. A2Tmt.Parvin, wife of A1, is a private individual. A3-K.Murugaiya, the then
Executive Engineer, Besant Nagar Division, Tamil Nadu Housing Board,
Chennai, is a public servant. A4-K.Rajamanickam, I.A.S., (Retired) was the Secretary to then Chief Minister of Tamil Nadu, Chennai, he is a public servant. A5-R.Durgashankar, son of A4, is private individual. A6I.Periyasamy was the former Minister for Housing between 2007 and 2011.
A7-T.Udhayakumar, Land Mark Construction, Chennai is a private individual.
As per G.O.Ms.No.1574/H & UD Department, dated 24.12.1991, 15% of the Tamil Nadu Housing Board (TNHB) house sites/houses/flats are marked for the allotment of the Government under the discretionary quota which is called as GDQ, i.e., Government Discretionary Quota. As per G.O.Ms.No.88/H & UD Department, dated 20.05.2003, the special workers and responsible persons in the society who have done excellent job in the field of arts/science/literature/economic/public administration/sports etc., (impeachable honest Government servant will come under the category of people who have excelled in public administration) are the categories among the eligible group to get allotment under 15% of GDQ.
(ii)During the period between 2008 and 2010 at Chennai and other places, A1 to A7 were parties to the criminal conspiracy having agreed to commit and abet each other in commission of offence of criminal breach of trust and offence of criminal misconduct in connection with the allotment of GDQ plots and thereby, M.S.Jaffar Sait and his family and A5, son of A4 were allotted plots in survey No.76 in part at Thiruvanmiyur, Chennai. On 20.02.2008, M.S.Jaffar Sait gave request to the Housing Minister for allotment of two ground house site plot under GDQ without enclosing any documentary evidence. This application was directly dealt by witness LW7K.N.Krishnasamy Rao, former Joint Secretary, Housing and Urban
Development Department, Chennai. On his advice, the then Assistant Section Officer, Section Officer created note files with the suggestion for the allotment of plot No.543A to M.S.Jaffar Sait, I.P.S., and it was recommended by LW6R.Sellamuthu, former Secretary, Housing and Urban Development Department, Chennai and approved by A6 on 04.04.2008 by G.O.Ms.No.370, dated 04.04.2008 of H & UD Department, plot No.543A to the extent 3457 sq.ft in Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait as well as another plot to A5.
(iii)In furtherance of common intention, A3-K.Murugaiya, Executive Engineer without the knowledge of his superiors, converted the seven plot layout segment in survey No.76 part, Kamarajar Nagar, Thiruvanmiyur into a six plot layout scheme for the convenience of A1 and A5 for a joint venture of construction and got CMDA approval. After the revised layout of six plot in the same survey number, without cancellation of the earlier allotment of 3457 sq.ft., in plot No.543A and without any fresh application, on the advice of LW7 created another note file suggesting to allot plot No.540 with an area of 4763 sq.ft to M.S.Jaffar Sait and it was signed by LW6 and approved by A6 and G.O.Ms.No.429, dated 23.04.2008 of H & UD Department was issued. Later, on 30.04.2008, M.S.Jaffar Sait gave application for cancellation of the said allotment of plot and the same was cancelled by LW6. On 01.05.2008, M.S.Jaffar Sait through his daughter Ms.Jenifer, a medical college student gave application for allotment of above said vacant plot No.540 under GDQ. On 06.05.2008, the said plot was allotted to her as per G.O.Ms.No.469, dated 06.05.2008. After she made full payment, she gave application for cancellation of the said plot on 30.04.2009 and the cancellation order was issued on 08.05.2009. Again, on 02.06.2009, A2 wife of M.S.Jaffar Sait applied for allotment of same plot No.540 under GDQ and addressed to A6 without enclosing any evidence to prove that she is a social worker. A4former Secretary to then Chief Minsiter of Tamil Nadu received the application on 04.06.2009 and made an positive endorsement as ‘the request may kindly be complied with. Action may please be taken to issue orders’. This application was forwarded to LW9-K.Surjit K.Choudhry, the then Secretary of Housing and Urban Development Department, Chennai, who consulted A6 in this matter. As per the direction of A6, the file was processed in favour of A2 and it was approved by A6 and by G.O.Ms.No.143 H & UD Department, dated 05.06.2009, the said plot was allotted to A2.
(iv)In furtherance to the criminal conspiracy, A2 made agreement with A7-T.Udhayakumar, Land Mark Construction on 08.10.2009 and as per agreement, A2 gave the said plot to A7, for which, A2 received the amount of Rs.1,27,23,000/- and a flat comprising 2280 sq.ft valued around Rs.1,48,59,000/-. Similarly, A5 made application on 27.11.2006 to A6 requesting for GDQ allotment of plot No.S4 at Thiruvallur Nagar at Thiruvanmiyur under the guise of social worker without enclosing any documentary evidence. On the advice of LW7, the then Assistant Section
Officer and Section Officer placed note file suggesting plot No.538 (4816 sq.ft) in suvey No.76 part of Kamarajar Nagar, Thiruvanmiyur can be allotted under GDQ. The above said office note was signed by LW6 and approved by A6 and G.O.Ms.No.332, dated 03.04.2008 was issued in favour of A5. In the course of the same transaction, A5 entered into an agreement with A7 and got Rs.45,49,300 as goodwill and two flats measuring 1515 sq.ft and 2000 sq.ft worth about Rs.2,48,10,500/-. In pursuance to the conspiracy, A3 and A4 have the other accused in commission of the above said offence of criminal misconduct by intentionally aiding to allot the plots to A1, A2 and A5. The above said acts of all the accused constituted the offence punishable under Sections 120(B) & 409 IPC and Sections 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and 109 IPC.
(v)The sanction for prosecution were obtained from the competent authorities for A3 and A6. Since A4 retired from service, no sanction required. In respect of M.S.Jaffar Sait, after completion of investigation, since he was an All India Service Officer, the sanction for prosecution was sought from the Home Secretary, Ministry of Home Affairs, North Block, New Delhi/competent authority. Even after lapse of more than a year, the sanction order not received by the respondent Police. Hence, after getting opinion of
the then Advocate General of Tamil Nadu, charge sheet has been filed against
A1 to A7 before the trial Court. The trial Court took the case on file as
C.C.No.25 of 2013. In the meanwhile, the Home Secretary, Ministry of Home Affairs, North Block, New Delhi declined sanction for prosecution against M.S.Jaffar Sait. Thereafter, M.S.Jaffar Sait filed Crl.O.P.No.13711 of 2019 before this Court to quash the proceedings against him and this Court, by order, dated 23.05.2019 quashed the proceedings recording the refusal for grant of sanction. In the meanwhile, the case in C.C.No.25 of 2013 got transferred to the file of the Additional Special Court for Trial of Criminal
Cases Related to Elected Members of Parliament and Members of Legislative Assembly, Chennai and renumbered as C.C.No.14 of 2019, against which, the present Quash Petitions and the Criminal Revisions.
5.The submissions of the learned Senior Counsel appearing for A2 in Crl.O.P.No.30357 of 2019 are as follows:-
(i)The learned Senior Counsel submitted that the plot No.540 was previously made in the name of A2’s daughter Ms.Jenifer, for which, a sum of Rs.1,07,77,008/- was paid to the TNHB towards cost between 21.07.2008 and
30.03.2009. After a year, on the request of A2’s daughter, the allotment was cancelled deducting a sum of Rs.14,03,040/- towards penal charges by the
TNHB and only a sum of Rs.93,73,963/- was refunded by TNHB.
Subsequently, the petitioner made fresh application for allotment of the said plot which became vacant on cancellation of the previous allotment in the name of her daughter. On 05.06.2009, the G.O(2D)No.143 was issued for the allotment of plot No.540 in the name of A2. The provisional allotment letter was issued on 05.08.2009 in the name of A2 with enhanced price of Rs.1,26,60,500/-. On 19.06.2009, the TNHB sent a letter to the Executive Engineer, Besant Nagar Division asking him to handover the possession of the allotted plot No.540 to A2 and to get acknowledgement from her for taking possession of the plot. Subsequent to the said letter of handing over possession, the petitioner entered into a joint venture agreement with A7 on 08.10.2009 as the allottee of the said plot. Thereafter, on 09.10.2009, a
General Power of Attorney was executed by the petitioner in the name of A7 enabling A7 for liaising with TNHB and other authorities to complete the formalities. Thereafter, the TNHB issued application to A2 on 03.11.2009 and erroneously obtained her signature on the lease cum sale agreement, dated 04.11.2009 enumerating several conditions. The plot No.540 was allotted to
A2 under outright purchase and as such the lease cum sale agreement is not required. The entire payments were made before the sale deed was executed by the TNHB in the name of A2 on 25.02.2010. Thereafter only on 09.04.2010, the general power of attorney was executed in favour of A7, that to for a portion of undivided share of the plot No.540. There was no pecuniary loss suffered in any form either by the TNHB or the Government and hence, no complaint of any sort was lodged either by the TNHB or the Government.
(ii)He further submitted that the case came to be registered on the complaint of the defacto complainant Shankar, who was employed as Assistant in the Directorate of Vigilance and Anti Corruption Department, who stole the vital documents and particulars from the department, for which, action against him was taken, which offended him to lodge the complaint against A2. Earlier, on the same set of facts, a complaint was lodged by one Advocate Pugalenthi and the same was closed. Hence, the present complaint is a motivated one with vengeance to spite venom for the action taken by A2’s husband M.S.Jaffar Sait. He further submitted that ever since the issuance of G.O.Ms.No.1574 H & UD Department, dated 24.12.1991 for the allotment of
15% of the TNHB plots under GDQ, more than 10,000 allotments made by TNHB. Due to adverse publicity given for the transaction, the petitioner send a request, dated 18.02.2011 to the TNHB expressing her willingness to surrender the plot No.540. The Executive Engineer, TNHB in his reply, dated 23.02.2011 declined A2’s request and confirmed that once the TNHB sold the property outright, there is no provision to reconvey the same and also confirmed that the TNHB did not sustain any loss by the sale and the sale was profitable at the market rate. In the meanwhile, the respondent Police obtained G.O.Ms.No.651, dated 05.09.2012 to file an application before the learned Chief Small Causes Court, Chennai for attachment of the said flat and obtained the order, dated 12.02.2013 for the interim attachment of the plot. Thereafter, A2 challenging the G.O.Ms.No.651, dated 05.09.2012 filed a Writ Petition before this Court in W.P.No.37599 of 2016, wherein this Court, by order, dated 26.10.2016 stayed all further proceedings pursuant to the said Government Order.
(iii)The prosecution has projected the case that the period of commission of offence is between 2008 and 2010, but in the final report, the respondent had gone beyond the period of offence and investigated the case.
The charge under Section 13(1)(c) of the Prevention of Corruption Act, 1988 is in violation of the statutory bar under the Proviso to Section 23 of the Prevention of Corruption Act, 1988. The offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988 is not maintainable since there is no valuable thing or pecuniary advantage obtained through corrupt/illegal means or by abusing the position of A2’s husband as a public servant. In fact, when the allotment of plot No.540 in the name of A2’s daughter was cancelled, a sum of Rs.14,03,040/- was deducted as penal interest by the TNHB. Subsequently, A2 purchased the property, higher than the price paid by A2’s daughter for the same plot. The respondent Police filed the charge sheet before the Special Court for the Trial of Cases under the Prevention of Corruption Act, 1988, Chennai is not maintainable for the reason that the sanction for prosecution could not be obtained by the respondent Police against M.S.Jaffar Sait, husband of A2. Though it is projected as ‘Deemed Sanction’ based on the opinion of the then Advocate General of Tamil Nadu, later the Ministry of Home Affairs, Union of India, vide order No.26011/33/2011-IPS.II, dated 29.11.2013 declined sanction for prosecution against A2’s husband. The respondent Police knowing very well about the said order, suppressing the same, filed the charge sheet before the lower Court on 02.09.2013. Even five years thereafter, the respondent Police failed to inform the concerned Court about the declination of sanction of prosecution against A2’s husband. Only on 10.08.2018, a memo along with the said order was filed before the lower Court. This Court, on considering the rejection of sanction for prosecution against A1, quashed the proceedings in so far as A2’s husband M.S.Jaffar Sait, by order, dated 23.05.2019 in Crl.O.P.No.13711 of 2019. Further, case against A3 was quashed by this Court in Crl.O.P.No.6824 of 2017, dated 24.10.2019 observing that there is no loss to the TNHB or the Government or any one in any form. Aggrieved against the same, the respondent filed an appeal before the Hon’ble Apex Court in S.L.P(Criminal)Diary No.8255 of 2021 and the same was dismissed on
01.10.2021 confirming the order of this Court, dated 24.10.2019.
(iv)He further submitted that no witness stated about A2 abetted or aided any one to get the allotment order in her name. A2 paid the market value price and obtained the sale deed from the TNHB. In this case, there is no statement or material directly or indirectly or to infer A2 had conspired with the other accused in commission of offence. Thus, the continuation of the proceedings is nothing but abuse of process of law. Hence, he prayed for quashing the proceedings against A2.
6.The submissions of the learned Senior Counsel appearing for A6 in
Crl.O.P.No.31323 of 2019 are as follows:-
(i)The learned Senior Counsel submitted that A6-I.Periyasamy was the former Minister for Housing between 2007 and 2011 approved the plot under GDQ, which is now projected as though A6 entered into a conspiracy with the other accused in allotting plots to A2 and A5. In fact, the TNHB wrote a letter No.A.1.7/9456-B/08, dated 22.04.2008 to the Secretary to Government, Housing & Urban Development Department stating that the plots which are available is kept open and it is very difficult to protect the plots from encroacher’s and recommended the Government to soon allot the plots under GDQ, so that the revenue can be realized by the TNHB. He further submitted that A2 submitted his application for allotment of plot No.540, which was received by A4. The request of A2 was processed at the Secretariat and note file was put up by the then Assistant Section Officer, Section Officer. After scrutiny and verification of file, it passed through various level of officers and finally, the Secretary approved the same. None of the officials gave any contra opinion or objection in allotment of plot No.540 to A2 under GDQ. It is the duty of the officials and staffs to verify eligibility and other particular of the applicant while dealing with the file. In this case, only after following the procedures, the file was sent to the concerned Minister/A6 for approval.
(ii)He further submitted that note file of A2 was circulated to A6, who signed the same concurring with the Principal Secretary and others recommendation. Likewise, on the note file of A5, A6 concurred the recommendation of the Secretary and other, for which, A6 now projected as though he had conspired with other accused in allotment of plot. The primary conspiracy which is projected against A6 is that initially, the plot No.540 at Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait and
thereafter, it was cancelled, again, it was allotted to his daughter Ms.Jenifer, who paid the entire sale consideration to TNHB and later, she requested for cancellation of the allotment in her name, which was cancelled and subsequently, on the request of A2, wife of M.S.Jaffar Sait, the plot No.540 was allotted to her vide G.O.(2D)No.143 and she paid enhanced price of Rs.1,26,60,500/- to TNHB. It is to be seen that A2’s daughter paid the sale consideration of Rs.1,07,77,008/- and when the allotment was cancelled, on her request, a sum of Rs.14,03,040/- was deducted towards penal charges by TNHB and only a sum of Rs.93,73,968/- was refunded by TNHB. The amount for selling the plot under GDQ was fixed by the Expert Committee of TNHB considering the market value. After selling the plot to the applicants, there is no quarrel or objection that the plots were sold lesser than the market value and the TNHB or Government suffered any loss in any form. The only allegation against A6 is that he conspired with other accused in allotting plots to A2 & A5 under GDQ.
(iii)In this case, admittedly, the cases against A1 and A3 were quashed by this Court as stated above. It is seen that the request of A2 for allotment of plot made to the Chief Minister’s Cell. A4 being the Secretary to the then Chief Minister, received the same, affixed seal and gave positive direction to allot plot under GDQ in favour of A2. The statement of witnesses from the Secretariat is that no rules or procedures prescribed, which needs to be followed for allotment of such plots under GDQ. A4 forwarded the request of A2 and A5 to the Housing and Urban Department and the Secretariat staff put up note file along with request and the Section Officer recommended the same. The Joint Secretary concurred and approved the note file of A2 and A5. Thereafter, the Secretary concurred with the note file and forwarded the same to A6 since there was no objection or contra opinion on the note file. A6 agreed with the Secretary and others recommendation. From the statement of witnesses and materials produced, it is seen that there is no averments against
A6 that he violated any condition stipulated for allotment of plots under GDQ.
The Secretary, a Senior I.A.S., officer from Housing and Urban Development Department approved the request of A2 and A5, on whose approval, A6 made his concurrence, other than that nothing more. Strangely, the Secretaries and other officials, who dealt with the files, are all shown as witnesses. On the other hand, A6 has been made as an accused. Further, it is not the case that A6 met any of the applicant or any of the officials before concurring with the note file of A2 and A5. The plots under the Discretionary Quota was introduced in the year 1995 and further four more allotments made in the said layout under GDQ. For allotment of A2 and A5 alone, the case now projected as though it is case of conspiracy and A6 allotted plots to A2 and A5.
(iv)The projection of the prosecution is that A2’s husband M.S.Jaffar Sait, the then Inspector General of Police (Intelligence) and A5’s father A4, the then Secretary to the then Chief Minister were close to the then Chief Minister of Tamil Nadu. As a political vendetta, the above case has been registered against A6 after change of Government. In fact, the defacto complainant
A.Shankar involved several criminal cases, due to which, he was suspended and dismissed from the service for theft of data and official records from the Vigilance and Anti Corruption Department. Earlier, for the similar set of allegations, one Pugalenthi Advocate lodged a complaint with the Central
Crime Branch, which was closed, vide proceedings in
R.C.No.1663/DC/CCB/Gen/2010, dated 20.08.2010. At the relevant period, A6 was the Minister for Housing and Slum Clearance and Revenue, he was busy with official works, he had no time left and he was always on the touring length and breadth of the state giving directions and instructions to the authorities. Further, he was concentrating on the functioning of the Revenue Department, which deals with benevolent schemes of the Government for the general public. In this case, A6 only concurred with the notings in the file put up on circulation for allotment of plots to A2 and A5. Like other four allottees, these two allotments under GDQ were given and nothing more. Picking and choosing these two plots alone is nothing but vindictive. Now, the prosecution attempted to project as though two of the witnesses have stated that A6 gave oral instructions to process the note files, that to, after several years. It is fundamental in criminal law the persons may lie, but not documents. Further, the documentary evidence would prevail over the oral evidence. For the reasons best known, the statements of witnesses are recorded as though A6 gave oral instructions to process the note files. To tarnish A6’s image and also to finish him of politically, the above case has been projected against him.
(v)He further submitted that the Chairman and Managing Director from TNHB and other officials of the Government held meeting on 22.04.2008 and fixed highest sale price in selling the plots, considering the market and guideline value. It is to be seen that A2 and A5 made their request to cancel the allotment of plots, but the TNHB categorically stated that once sale deed executed by TNHB, there is no provision to cancel the same and return the sale consideration. Thereafter, A2 and A5 dealt with the plots on their own, which cannot be objected or questioned and cannot be projected with criminal intent. They have entered into the Joint Venture Agreement with A7 and thereafter, what had happened after allotment of plots to allottees, that to, by outright sale, A6 has no role. He further submitted that there is no material produced by the prosecution to show that A6 caused deliberate wrongful loss to TNHB by obtaining pecuniary advantage and abusing his official position as public servant. In the absence of the same, the offence under Section
13(1)(d) of the Prevention of Corruption Act, 1988 would not attract. The allegation against A6 is on the allotment of GDQ, which is an official duty of A6. Hence, the sanction under Section 197 Cr.P.C., is necessary to initiate prosecution against A6, but in this case, no such sanction obtained from the competent authority. Assailing these points, he prayed for quashing of the proceedings against A6.
7.The submissions of the learned Senior Counsel appearing for A4 in Crl.R.C.No.147 of 2020 are as follows:-
(i)The learned Senior Counsel submitted that A4 was employed as Secretary to then Chief Minister of Tamil Nadu, Chennai on re-employment, vide G.O.Rt.No.1874, dated 13.05.2006. A4 was allocated with 11 subjects including the Housing and Urban Development Department. A4 being the Secretary to the then Chief Minister of Tamil Nadu used to forward the applications and request made by the public and others. In this case, A2 gave application seeking allotment of plot No.54 at Kamarajar Nagar,
Thiruvamiyur, Chennai under GDQ. As the Secretary to the then Chief Minister in charge of Housing and Urban Development, A4 received the application and forwarded to the Principal Secretary, Housing and Urban
Development. After change of Government, a case in Crime No.7/AC/2011 registered on the complaint of the defacto complainant one A.Shankar. The defacto complainant, who himself is an accused of theft of sensitive data from the personal and official computer systems maintained in the Director of Vigilance and Anti Corruption Department. Due to which, the said A.Shankar was terminated from the service during the tenure of M.S.Jaffar Sait, I.P.S., who is shown as A1 in the FIR in Crime No.7/AC/2011.
(ii)He further submitted that A4 being the Government servant at the time of commission of offence, sanction for prosecution under Section 197
Cr.P.C., is necessary, but in this case, no sanction obtained to prosecute A4.
The charge sheet filed on the opinion of the then Advocate General of Tamil
Nadu as ‘Deemed Sanction’ against M.S.Jaffar Sait. The Ministry of Home Affairs, Union of India vide order No.26011/33/2011-IPS.II, dated 29.11.2013 declined to grant sanction for prosecution. Recording the same, the case against M.S.Jaffar Sait was quashed by this Court in Crl.O.P.No.13711 of
2019, dated 23.05.2019. Aggrieved against the same, the defacto complainant
A.Shankar preferred an appeal before the Hon’ble Apex Court in S.L.P(Criminal) Diary No.20404/2019 and the same was dismissed
confirming the order of this Court, dated 23.05.2019. The specific overtact against A4 is he made endorsement on the application of A2 recommending to consider the same. A4 made the said endorsement in discharge of his official duty which will not constitute any offence as alleged by the prosecution. Further, there is no loss suffered by the Government or the TNHB due to the endorsement made by A4. Moreover, the TNHB did not take any action to cancel the allotment made in favour of A2 and A5 since the TNHB received the price as fixed by the Expert Committee and thereby, there is no loss to the TNHB. The sanction for prosecution under Section 197 Cr.P.C., is mandatory even for a retired Government servant.
(iii)He further submitted that the sanction under Section 197 Cr.P.C., is a condition precedent to prosecute any person who is or was a public servant who had done any act in discharge of his official duty. In the absence of the sanction, taking cognizance of the case against A4 is improper and bad in law. Even according to the prosecution, the plot was allotted to A2 under GDQ by the Principal Secretary, who is the competent authority after complying with the required procedure and also after getting due approval from A6. The case against A3-K.Murugaiya, the then Executive Engineer, Besant Nagar
Division, Tamil Nadu Housing Board, Chennai was quashed by this Court in Crl.O.P.No.6824 of 2017 on 24.10.2019, wherein this Court had held that ‘no loss was sustained by the Tamil Nadu Housing Board and the allotment are of
Government Discretionary Quota made through Government Orders.’
Aggrieved against the same, the respondent filed an appeal before the Hon’ble Apex Court in S.L.P(Criminal)Diary No.8255 of 2021 and the same was dismissed on 01.10.2021 confirming the order of this Court, dated 24.10.2019.
He further submitted that the trial Court failed to consider the statement of
LW4-K.Phanindra Reddy, I.A.S., Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai who clearly stated that there is no specific order/circular prescribing, proof required for claim as social worker or Impeachable Honest Public Servant, which makes it clear that there is no violation of rules and procedures in allotment of plots. Likewise, the statement of LW4 confirmed that the request of A2, dated 02.06.2009 was handed over to A4 on 04.06.2009 and he was asked to process the same in consultation with A6. After following the procedure, G.O.Ms.No.143, dated 05.06.2009 was issued. The TNBH has sold the plot much higher than the marker price at the time of allotment and no loss of revenue to TNHB or to the
Government.
(iv)He further submitted that the respondent Police resorted to selective targeting of A5 and A2 while there were six plots allotted in the same layout under GDQ. The two plots were allotted to the family members of Thiru.Rajarathinam, I.A.S., (Retired) and Thiru.Devaraj, I.A.S., (Retired) and other dignitaries. In this case, there is no evidence to show that A4 had any part of criminal conspiracy with other accused. To attract the offence of conspiracy, there must be specific allegation that the accused persons joined together and committed the illegal act or an act which is not legal by illegal means. The only material projected against A4 is that he forwarded the request of A2 to the Principal Secretary, Housing and Urban Development
Department with an endorsement ‘the request may kindly be complied with. Action may please be taken to issue orders‘ with a direction to consult with A6 in this matter. As per the direction, following the procedure, office note file was put up by the then Assistant Section Officer, Section Officer, which passed through various channels Joint Secretary and finally, the Secretary, who is a Senior I.A.S., Officer. Thereafter, the file was approved by A6 and by G.O.Ms.No.143 H & UD Department, dated 05.06.2009, the said plot was allotted to A2. None of the witnesses examined by the prosecution gave any contrary opinion in the note file. Thus, the petitioner who had impeachable conduct and service of more than several decades in the Tamil Nadu
Government, is now being targeted and a false case projected against him.
The trial Court ought to have considered the positive statements given by the
Secretary, Joint Secretary of Housing and Urban Development Department,
Section Officer and Assistant Section Officer from Secretariat including the Secretary, Chief Engineer and Executive Engineer and others from the TNHB, who all dealt with the file of allotment of A2. Hence, he prayed for setting aside the order of the trial Court, dated 20.12.2019 dismissing his discharge petition.
8.The submissions of the learned Senior Counsel appearing for A5 in
Crl.R.C.No.527 of 2020 are as follows:-
(i)The learned Senior Counsel submitted that A5 was involved in Social Welfare Association named K.K.Nagar Apoorva Women Welfare Association and rendered social service during the Tsunami disaster. As early as on 27.11.2006, A5 applied to the Minister of Housing & Slum Clearance requesting for allotment of plot No.S4 at Kamarajar Nagar, Thiruvanmiyur under GDQ. Much later, on 03.04.2008, the Section Officer, Housing Department issued a note for circulation seeking permission of the concerned Minister for the allotment of plot No.538 in survey No.76 part of Kamaraj Nagar, Thiruvanmiyur. The note file was approved by LW7K.N.Krishnasamy, Joint Secretary to Government and LW6-R.Sellamuthu,
I.A.S., Secretary to the Government and finally, it was approved by A6. On 03.04.2008, the TNHB issued G.O.Ms.Nos.326, 331, 333, 334 & 332 for allotment of plots in Thiruvanmiyur to A5 and others. The Secretary to Government, Housing and Urban Development Department informed the allottees stating that the revised part layout was approved by the Chennai Metropolitan Development Authority. The TNHB had written a letter to the
Government that is difficult to protect the lands at Kamarajar Nagar, Thiruvanmiyur from encroachers and recommended the Government may take appropriate action to bring these plots under GDQ. Thereafter, the Secretary to the Government, Housing and Urban Development Department on 23.04.2008 issued fresh G.O.Ms.Nos.428, 430, 432, 431 & 427 for allotment of plots in Thiruvanmiyur to the applicants. A5 was allotted plot No.438 and the same same was intimated to him on 09.05.2008, vide letter No.AL3/1711/08. On 09.06.2008, the TNHB executed lease-cum-sale agreement in respect of the said plot No.538 and issued transfer certificate to A5 on
24.07.2008 and thereby, handing over the possession of the allotted plot to A5.
Further, the TNHB issued a No Objection Certificate, dated 17.02.2010 to A5 and another allottee A2 for proceeding with construction in the allotted plots. Since there was adverse publicity given on the allotment of plots, on 16.03.2011, A5 made application to TNHB to cancel the allotment of the said plot to him and refund the sale amount paid by him. A5 wanted to save the reputation of his father/A4, his family and to prove that A5 is not interested to further retain the plot. The TNHB on 21.03.2011 rejected the request of A5 informing that once the plot sold by the TNHB, that to by outright sale, there is no provision to reconvey the same and confirmed that the plots were sold at market price and no loss sustained by TNHB.
(ii)He further submitted that after the change of Government in the year 2011, a complaint was lodged by the defacto complainant A.Shankar, who had personal animosity against M.S.Jaffar Sait, husband of A2. The complaint lodged by the defacto complainant is a motivated one. The said M.S.Jaffar
Sait arrayed as A1 in this case based on the opinion given by the then
Advocate General of Tamil Nadu as ‘Deemed Sanction’. The Ministry of
Home Affairs, Union of India, vide order No.26011/33/2011-IPS.II, dated
29.11.2013 declined sanction for prosecution against M.S.Jaffar Sait. Despite sanction order was declined, the respondent Police failed to inform the trial Court about the same. Only after five years, the said order was produced by way of memo to the trial Court. This Court taking cognizance of the same, quashed the proceedings against M.S.Jaffar Sait in Crl.O.P.No.13711 of 2019, dated 23.05.2019. Aggrieved against the same, the defacto complainant
A.Shankar preferred an appeal before the Hon’ble Apex Court in
S.L.P(Criminal) Diary No.20404/2019 and the same was dismissed confirming the order of this Court, dated 23.05.2019. The case against A3K.Murugaiya, the then Executive Engineer, Besant Nagar Division, Tamil Nadu Housing Board, Chennai was quashed by this Court in Crl.O.P.No.6824 of 2017 on 24.10.2019, wherein this Court had held that ‘no loss was sustained by the Tamil Nadu Housing Board and the allotment are of Government Discretionary Quota made through Government Orders.’
Aggrieved against the same, the respondent filed an appeal before the Hon’ble Apex Court in S.L.P(Criminal)Diary No.8255 of 2021 and the same was dismissed on 01.10.2021 confirming the order of this Court, dated 24.10.2019. The entire sale price for the plot allotted to A5, was paid and thereafter, only the sale deed was executed in his favour. The allotment of plot was made under the GDQ and there is no material to show that GDQ has been wrongly availed.
(iii)He further submitted that the prosecution projected the case as though the conspiracy hatched between the accused. Now, the cases against A1 and A3 were quashed by this Court and thereby, the charge of conspiracy gets snapped and there is no conspiracy existing in this case. Since A5 being the son of the then Secretary/A4 to the former Chief Minister of Tamil Nadu, to spite venom against his father/A4, A5 has been made as accused in this case. The allegation against A5 is that he entered into the joint venture agreement with A7-T.Udhayakumar, Land Mark Construction, Chennai after purchasing the plot on outright from TNHB. Once the property is sold by
TNHB, A5 has no restriction to deal with the property as he wishes. LW4K.Phanindra Reddy, I.A.S., the then Secretary to Government, Housing and Urban Development Department, Secretariat and LW5-Surjit K.Chaudhary,
I.A.S., the then Principal Secretary to Government, Housing and Urban Development Department admitted that there is no specific order/circular prescribing proof required for the claims as social worker or impeachable Honest Public Servant. In this case, A5 is a social worker, rendered yeoman social service during the Tsunami disaster. Contradicting the same, the respondent Police not produced iota of evidence to prove negativity against
A5 in any manner. Further, A5 sought for No Objection Certificate from the TNHB to develop the plot, which clearly shows that there is no secrecy in A5 entering into the development of plot with A7. The trial Court without considering the above points, mechanically dismissed the discharge petition, which needs interference of this Court and A5 to be discharged from the case.
9.Mr.Hasan Mohamed Jinnah, learned State Public Prosecutor appearing for the respondent in CRL.O.P.No.30357 of 2019 and CRL.R.C.Nos.147 & 527 of 2020 and for R1 in CRL.O.P.No.31323 of 2019, filed counter in each petition and made his objections are as follows:-
- CRL.O.P.No.30357 of 2019 :
(i)The learned State Public Prosecutor appearing for the respondent submitted that on the complaint of the defacto complainant A.Shankar, a case in Crime No.7/AC/2011 was registered, for offence under Sections 120(B) &
420 of IPC and Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and Section 109 of IPC, by the respondent Police. During the course of investigation, additional facts of accused, involvement of criminal conspiracy and criminal breach of trust by the public servant and others revealed against the accused. After completion of investigation, charge sheet filed against seven persons for offence under Sections 120(B), 409 and 420 of
IPC and Sections 13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 and 109 IPC, before the trial Court. He further submitted that A2 applied for plot No.540 under GDQ in survey No.76 in part at Thiruvanmiyur, Chennai addressed to then Minister for Housing/A6, Tamil Nadu without enclosing any evidence to prove that she was a social worker. A4 received the application of A2 on 04.06.2009 made endorsement that ‘the request may kindly be complied with. Action may please be taken to issue orders’. A4 is the Former Secretary to the then Chief Minister of Tamil Nadu, hence, the credential and qualification of A2 in availing the plot under GDQ was not verified. Initially, M.S.Jaffar Sait, husband of A2 gave application on 20.02.2008 seeking allotment of two ground house site plot under GDQ without any documentary evidence. Based on his application, the plot No.543A was allotted at Kamarajar Nagar, Thiruvanmiyur to M.S.Jaffar Sait. After this allotment, A3-the then Executive Engineer, TNHB Besant Nagar revised the seven plots in Thiruvanmiyur scheme to six plots scheme. After the revised layout six plots in the same survey number, without cancellation of earlier allotment of 3457 sq.ft., in plot No.543A and without any fresh application, another plot No.540 was allotted to M.S.Jaffar Sait vide
G.O.Ms.No.429, dated 23.04.2009 of Housing and Urban Development Department. Later, on 30.04.2008, M.S.Jaffar Sait gave application for cancellation of the said allotment of plot and accordingly, it was cancelled. On 01.05.2008, Ms.Jenifer, daughter of M.S.Jaffar Sait gave application for the allotment of said vacant plot No.540 under GDQ and the same was allotted to her, who paid the entire sale price to TNHB. Thereafter, Ms.Jenifer gave application for cancellation of the above said plot allotted to her. Following the rules, the TNHB cancelled the allotment deducting penal charges and handed over the balance amount. Simultaneously, A2, the wife of M.S.Jaffar Sait gave application for allotment of said plot in her favour and it was immediately sanctioned under GDQ. Based on the letter of TNHB asking the Executive Engineer, Besent Nagar Division to handover the possession of the allotted plot No.540 to A2, she entered into a joint venture agreement with A7 for development of the above said plot. Even before acquiring the ownership of the land, A2 executed joint venture agreement and obtained pecuniary advantage from A7.
(ii)He further submitted that the joint venture agreement was executed on 08.10.2009 and the general power of attorney executed by A2 in favour of
A7 on 09.10.2009, whereas the actual possession of the plot No.540,
Thiruvanmiyur came into effect only after execution of sale deed by the Executive Engineer, TNHB on 25.02.2010, vide document No.1258 of 2010, which is a lease-cum-sale agreement between A2 and TNHB. During
investigation, sufficient materials collected to show that A2 received total sum of Rs.1,24,23,000/- from A7 pursuant to the joint venture agreement. A2 obtained sale deed on 25.02.2010. After vide adverse publicity and fear of getting exposed, she attempted to surrender the plot to TNHB on 18.02.2011 which is almost one year after the allotment. He further submitted that the plot No.540 was attached vide G.O.Ms.No.651, dated 05.09.2012. The contention of A2 that the attachment proceedings has been stayed by this Court in W.P.No.37599 of 2016, dated 26.10.2016 is not correct for the reason that the property is still attached as per G.O.Ms.No.651, dated 05.09.2012. The contention of A2 that the case against her husband M.S.Jaffar Sait was quashed by this Court for the reason that the sanction for prosecution under Section 19 of the Prevention of Corruption Act, 1988 was not accorded by the competent authority, will no way be helpful to the case of A2. Likewise, the petitioner’s contention that the charge under Section 13(c) of the Prevention of Corruption Act, 1988 pertaining to A5 was in the year 2006 and the charge against A5 is in violation of statutory bar under the Proviso to Section 23 of the Act is not correct and denied.
(iii)He further submitted that quashing the case against A3 would not mean that A2 did not commit any offence. In this case, A4 without verification whether A2 was a social worker, made authoritative endorsement on 04.06.2009 on the application given by A2 that orders shall be issued alloting the plot No.540 under GDQ. The act of A4, who was Secretary to the former Chief Minister of Tamil Nadu, by abusing his official position as public servant, by such acts, by corrupt and illegal means, in the absence of any power vested to him, made an endorsement with regad to GDQ allotment for TNHB plot, thereby facilitated and abetted A2 to get GDQ allotment of a plot which resulted in getting undue pecuniary gain of Rs.1,27,23,000/- to A2 and correspondinly, caused undue pecuniary advantage of Rs.1,69,75,000/- to his son A5. He further submitted that the Hon’ble Apex Court in the case of “Soma Chakravarty Versus State reported in (2007) 5 SCC 403” had held that ‘at the time of framing of charges, the probative value of the materials on record cannot be gone into, and the materails brought on record by the prosecution has to be accepted as true. Before framing a charge the Court must apply its judicial mind on the materail placed on record and must be satisfied that the commission of offence by the accused was possible, whether in fact, the accused committed the offence, can only be decided in the trial.’ Thus, the prosecution has produced prima facie materials against A2 and other accused. Further, the accused have been filing one petition or other before the trial Court and before this Court and thereby, successfully stalled the progress of the trial. Hence, he prayed for dismissal of Crl.O.P.No.30357 of 2019 and sought for direction to complete the trial.
- R.C.Nos.147 & 527 of 2020 :
(i)The learned State Public Prosecutor submitted that A4 was the Secretary to the former Chief Minister of Tamil Nadu and A5 his son is a private individual. A4 was allocated eleven subjects including the Housing and Urban Development Department. Taking advantage of his official position, he made his son/A5 to make application for allotment of plot No.S4, Thiruvalluvar Nagar, Thiruvanmiyur under GDQ on 27.11.2006. The application of A5 made in the year 2006, it was processed and office notice, dated 03.04.2008 in file No.8410/HB-5(1)/08 was initiated and it was approved by A6. He further submitted that A5 entered into the joint venture agreement with A7 for construction of multi-storey residential complex in TNHB land comprising of plot No.538. The allotment of plot No.538 was made in favour of A5 only on enamoured clout and influence of A4. This is proved by the statement recorded under Section 164 Cr.P.C., of LW6R.Sellamuthu, former Secretary, Housing and Urban Development Department, Chennai. A5 having entered into lease-cum-sale agreement with the TNHB knowing well of the condition that the lessee purchaser shall not be entitled to assign, sublet, or part with the possession of the whole or any part of the property without the previous permission in writing of the lessorvendor, has further with criminal intent, having conspired with A2, entered into a joint venture agreement with A7. That apart, A5 has also made a joint development agreement with A7 on 08.04.2010 for constructing flats in the above said plot and thereby, A5 got pecuniary advantage of Rs.45,49,300/- and two flats measuring 1515 sq.ft and 2000 sq.ft worth about 2,48,10,500/-
(ii)He further submitted that A5 does not qualify under any of the categories as per G.O.Ms.No.88 H & UD, dated 20.05.2003. Since A4 was the retired from the Government, no sanction is required to proceed against him under the Prevention of Corruption Act, 1988. The denial of sanction of prosecution as regards M.S.Jaffar Sait will no way ensure any benefit to the cases of A4 & A5. Further, A4 was never authorized to receive application of the applicants directly and to give any recommendation or directions. On his own, A4 made authoritative endorsement, forwarded the same to A6, which will not fall under discharge of official duty. Hence, the sanction for prosecution under Section 197 Cr.P.C., not required. He further submitted that the investigating officer collected sufficient evidence and materials to prove the case against A4 & A5. At the time of framing of charges, weighing the evidence of LW4 and LW5 is not correct. Mere reading between lines in the statement of LW4 and LW5 would never absolve A4 and A5 from the case of the prosecution. The statement of witnesses and documents ought to be considered in holistic manner in detail and thereafter only, the contention of A4 and A5 can be considered and the same can be done only during trial and not at this stage. The trial Court considering the submissions of A4 & A5 in a detailed manner, formulating question and giving proper answer referring to the statement of witnesses and the documents, dismissed the discharge petitions. The Hon’ble Apex Court in the case of “Rajib Rajan Versus
R.Vijayakumar reported in (2015) 1 SCC 513” observed that ‘even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of official duties and, therefore, provisions of Section 197 of Cr.P.C., will not be attracted.’ Further, the absence of sanction to prosecute M.S.Jaffar Sait, I.P.S., will no way help A4 in any manner. In this case, the Investigating Officer obtained sanction for prosecution for A6. The investigating officer collected 133 documents and examined 26 witnesses to prove the allegations in the charge sheet. The guilt or otherwise of A4 and A5 can be seen only after the completion of the trial Court. Hence, he prayed for dismissal of the criminal revisions confirming the orders of the trial Court, dated 20.12.2019.
- O.P.No.31323 of 2019 :
(i)The learned State Public Prosecutor submitted that the Tamil Nadu Government laid certain procedures to be followed in the allotment of plots/flats/houses under GDQ scheme. As per G.O.Ms.No.399 Housing and Urban Development Department, dated 25.01.1979, the TNHB allotted
plots/flats/Houses to the public by calling for application and by conducting a lot. As per Government Memo NO.21244/K2/79-1, dated 23.01.1979 orders were issued for the allotment of 10% of the plots/flats/houses in all schemes developed by TNHB under GDQ. He further submitted that as per
G.O.Ms.No.704 Housing and Urban Development Department, dated
17.08.1981, the Government decided that only those who have applied to the TNHB in the prescribed application form for a particular scheme and who are not successful in the lots down for allotment in that scheme are eligible for allotment by the Government under their 10% discretionary quota. The
G.O.Ms.No.1574 Housing and Urban Development Department, dated 24.12.1991 categorised the eligibility for GDQ allotment, Government increased the GDQ allotment from 10% and directed that 15% discretionary quota be open to all people. A6, the then Minister for Housing without verifying the requisite documents in allotting the plots under GDQ, approved the plots to A2 & A5 and caused illegal pecuniary advantage to them. The wilful negligence of A6 shows his criminal conspiracy with the other accused. Further, the requirement to be fulfilled under GDQ that the applicants could be a social worker with credentials, not verified. Since A2 is the wife of M.S.Jaffar Sait, who the Inspector General of Police, Intelligence at Chennai and A5 is the son of A4, who was the Secretary to the then Chief Minister, the plots were allotted to them under GDQ.
(ii)He further submitted that initially, the plot No.540 at Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait on 04.04.2008 and thereafter, it was cancelled on 30.04.2008, again, it was allotted to his daughter Ms.Jenifer, a medical college student, who paid the entire sale consideration of Rs.1,07,77,008/- to TNHB. Due to wide adverse publicity for the transaction, immediately, on 30.04.2009, she requested for cancellation of the allotment in her name, which was cancelled on 08.05.2009 and subsequently, A2, wife of M.S.Jaffar Sait applied for allotment of same vacant plot No.540 under GDQ on 02.06.2009. A4 received the said application on 04.06.2009 and made authoritative endorsement and immediately forwarded the same to the witness Surjit K.Choudhry, I.A.S., with a direction to consult the then Minister/A6 in this matter. As per direction, A6 processed the note file and approved the same and by G.O.Ms.No.143 Housing and Urban Development Department, dated 05.06.2009, the said plot was allotted to A2. From the above, it is to be seen that A2 gave application for allotment of plot under GDQ on 02.06.2009. In the guise of recommendation, on 04.06.2009,
A4 gave direction to process the file and on the same day forwarded to Surjit
K.Choudhry, I.A.S., who processed the note file and forwarded to A6. On
05.06.2009, A6 approved the note file and by G.O.Ms.No.143 Housing and Urban Development Department, dated 05.06.2009, the said plot was allotted to A2. This itself proves that unless there is a predetermined meeting of mind, no application would be dealt in such manner, that to within four days. In furtherance to the criminal conspiracy, A2 entered into joint venture agreement with A7-T.Udhayakumar, Land Mark Construction on 08.10.2009 and as per agreement.
(iii)He further submitted that as regards A5, though his application for allotment of plot No.S4 at Thiruvallur Nagar at Thiruvanmiyur was given in the year 2006, it was kept pending. Since his father/A4 was the Secretary to the then Chief Minister of Tamil Nadu, he was given eleven subjects including the Housing and Urban Development Department, A5’s application was cleared and plot No.538 was allotted to him under GDQ without any supporting documents. In the course of same transaction, A5 entered into the joint venture agreement with A7 for development of the plot allotted to him under GDQ. The allotment of plot under GDQ is only for residential and not for any commercial purpose. With the joint venture agreement, A2 and A5 were benefited. These aspects ought to have been considered by A6 before exercising its discretion allotment of plots in favour of A2 and A5. For the reasons best known, without any verification, A6 allotted the plots to A2 and A5 under GDQ. He further submitted that A6 being the Senior Minister, conveniently issued orders to process the note files without any delay. The witnesses from the Housing and Urban Development Department confirmed that it was on the oral instruction of A6, the note files of A2 and A5 for allotment under GDQ were processed without any verification. Added to it, two prime witnesses given statement under Section 164 Cr.P.C., against A6. The case against A6 is that without verifying the genuineness of the application submitted by A2 and A5, he approved the same allotting the plots to them. This shows the blatant violation of procedures by A6 by approving plots to A2 and A5. The contention of the petitioner that A6 is being proceeded under the old provisions of Prevention of Corruption Act, 1988 is also not proper. As per the amendment Act, 2018, there is no offence as projected against A6 under the Prevention of Corruption Act, 1988 is not proper. The alleged offences were committed during the period between 2008 and 2010. Hence, A6 is proceeded under the provisions of the Prevention of the Corruption Act, 1988, that is, before the 2018 Amendment made to the Act. In this case, the sanctioning authority, on satisfying with the materials, granted sanction. The trial Court based on the materials produced before it, took cognizance of the case and proceeding with the trial. Due to pendency of the above petitions, the trial is kept pending from the year 2019. Hence, he prayed for dismissal of this Quash Petition and sought direction for completion of the trial.
10.The submissions of the learned counsel appearing for the 2nd respondent in Crl.O.P.No.31323 of 2019 are as follows:-
(i)The learned counsel submitted that A6, the then Minister for Housing without verifying the requisite documents in allotting the plots under GDQ, approved plots to A2 & A5 and caused illegal pecuniary advantage to them. The wilful negligence of A6 shows his criminal conspiracy with the other accused. Further, the requirement to be fulfilled under GDQ is that the applicants could be a social worker with credentials, but that was not verified. Since A2 is the wife of M.S.Jaffar Sait, who the Inspector General of Police, Intelligence at Chennai and A5 is the son of A4, who was the Secretary to the then Chief Minister, the plots were allotted to them under GDQ. He further submitted that initially, the plot No.540 at Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait on 04.04.2008 and thereafter, it was cancelled on 30.04.2008, again, it was allotted to his daughter Ms.Jenifer, a medical college student, who paid the entire sale consideration of Rs.1,07,77,008/- to TNHB. Due to wide adverse publicity for the transaction, immediately, on 30.04.2009, she requested for cancellation of the allotment in her name, which was cancelled on 08.05.2009 and subsequently, A2, wife of M.S.Jaffar Sait applied for allotment of same vacant plot No.540 under GDQ on 02.06.2009. A4 received the said application on 04.06.2009 and made authoritative endorsement and immediately forwarded the same to the witness Surjit K.Choudhry, I.A.S., with a direction to consult the then Minister/A6 in this matter. As per direction, A6 processed the note file and approved the same and by G.O.Ms.No.143 Housing and Urban Development Department, dated 05.06.2009, the said plot was allotted to A2. On 05.06.2009, A6 approved the
note file and by G.O.Ms.No.143 Housing and Urban Development
Department, dated 05.06.2009, the said plot was allotted to A2. This itself proves that unless there is a predetermined meeting of mind, no application would be dealt in such manner, that to within four days.
(ii)He further submitted that since A4 was the Secretary to the then
Chief Minister of Tamil Nadu, he was given eleven subjects including the Housing and Urban Development Department, the application of his son/A5 was cleared and plot No.538 was allotted to him under GDQ without any supporting documents. In the course of same transaction, A5 entered into the joint venture agreement with A7 for development of the plot allotted to him under GDQ. The allotment of plot under GDQ is only for residential and not for any commercial purpose. With the joint venture agreement, A2 and A5 were benefited. These aspects ought to have been considered by A6 before exercising its discretion allotment of plots in favour of A2 and A5. Added to it, two prime witnesses given statement under Section 164 Cr.P.C., against A6. The case against A6 is that without verifying the genuineness of the application submitted by A2 and A5, he approved the same allotting the plots to them. This shows the blatant violation of procedures by A6 by approving plots to A2 and A5. The trial Court based on the materials produced before it, took cognizance of the case and proceeding with the trial. Due to pendency of the above petitions, the trial is kept pending from the year 2019. Hence, he prayed for dismissal of this Quash Petition and sought direction for
completion of the trial.
11.This Court considered the submissions made by the learned Senior
Counsels appearing for the petitioners in Criminal Original Petitions and
Criminal Revisions and the learned State Public Prosecutor appearing for the State and the learned counsel for the 2nd respondent in Crl.O.P.No.31323 of 2019 and perused the materials available on record.
12.A case in Crime No.7/AC/2011 was registered by the respondent Police against seven accused, for offence under Sections 120(B) & 409 IPC and Sections 13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 and 109 IPC. Initially, the charge sheet filed before the Special Court for Trial of Cases registered under Prevention of Corruption Act, 1988, Chennai in C.C.No.25 of 2013. Thereafter, the case was transferred to the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly, Chennai and renumbered as C.C.No.14 of 2019. There are totally seven accused in this case viz., A1-M.S.Jaffar Said, I.P.S., who was the Inspector General of Police, Intelligence at Chennai during the period from 18.05.2007 to 31.12.2010; A2Parvin, wife of A1, is a private individual; A3-K.Murugaiya, the then
Executive Engineer, Besant Nagar Division, Tamil Nadu Housing Board, Chennai, is a public servant; A4-K.Rajamanickam, I.A.S., (Retired) was the
Secretary to then Chief Minister of Tamil Nadu, Chennai, a public servant; A5-R.Durgashankar, son of A4, is a private individual; A6-I.Periyasamy was the Former Minister for Housing and Urban Development Department between 2007 and 2011 and A7-T.Udhayakumar, the Proprietor of Land Mark Construction, Chennai.
13.The case against M.S.Jaffar Sait, I.P.S., husband of A2, was quashed by this Court in Crl.O.P.No.13711 of 2019, dated 23.05.2019, since the sanction for prosecution against him was rejected by the Ministry of Home Affairs, Union of India, vide order No.26011/33/2011-IPS.II, dated 29.11.2013. Initially, the charge sheet filed against M.S.Jaffar Sait based on the opinion of the then Advocate General of Tamil Nadu as ‘Deemed Sanction’, since the sanction for prosecuting M.S.Jaffar Sait was getting delayed from the Ministry of Home Affairs. Despite rejection order of the Ministry of Home Affairs, Union of India, dated 29.11.2013, the trial Court failed to act upon the same. Hence, M.S.Jaffar Sait filed Crl.O.P.No.13711 of 2019 and this Court, by order, dated 23.05.2019 quashed the proceedings against him alone. Aggrieved against the same, the defacto complainant
A.Shankar preferred an appeal before the Hon’ble Apex Court in S.L.P(Criminal) Diary No.20404/2019 and the same was dismissed at the threshold confirming the order of this Court, dated 23.05.2019. Thereafter,
A3-K.Murugaiya, the then Executive Engineer, Besant Nagar Division, Tamil
Nadu Housing Board, Chennai filed Quash Petition before this Court in Crl.O.P.No.6824 of 2017 and this Court, by order, dated 24.10.2019, quashed the proceedings against him holding that ‘no loss was sustained by the Tamil Nadu Housing Board and the allotment are of Government Discretionary Quota made through Government Orders.’ Aggrieved against the same, the
respondent filed appeal before the Hon’ble Apex Court in
S.L.P(Criminal)Diary No.8255 of 2021 and the same was dismissed on
01.10.2021 confirming the order of this Court, dated 24.10.2019. Now, in C.C.No.14 of 2019 is pending against five accused, of which A2, A4 to A6 are before this Court, except A7.
14.A2 and A5 are allottees of plot Nos.540 & 538 at Kamarajar Nagar, Thiruvanmiyur, which was allotted and approved by A6 under GDQ. A4 was the Secretary to the then Chief Minister of Tamil Nadu and father of A5. A7-
T.Udhayakumar is the Proprietor of Land Mark Construction, Chennai, who entered into a joint venture agreements with A2 and A5 for development of said two plots into commercial purpose.
15.The contention of A2 & A5 is that they were allotted plots under
GDQ and to substantiate the same, G.O.Ms.No.143 Housing and Urban
Development Department, dated 05.06.2009 and G.O.Ms.No.332 Housing and
Urban Development Department, dated 03.04.2008 were issued by Government. Based on which, allotments orders issued to them by TNHB. The sale consideration for the said allotment of plots was paid by A2 and A5, which is not in dispute. It is seen that the value and amount for the plots under GDQ was fixed by the Expert Committee consisting officials of TNHB, Registration Department and others, considering the market value. Further, there is no dispute with regard to valuation and price fixed by the Expert Committee or for any loss sustained by the TNHB or Government due to sale deed executed in favour of A2 and A5.
16.Admittedly, in this case, the plot No.540 at Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait on 04.04.2008 and thereafter, it was cancelled on 30.04.2008, again, it was allotted to his daughter Ms.Jenifer, a medical college student, who paid the entire sale consideration of Rs.1,07,77,008/- to TNHB. Due to adverse publicity and comments for the transaction, immediately, on 30.04.2009, Ms.Jenifer requested for cancellation of allotment made to her and the same was cancelled on 08.05.2009. Subsequently, A2, wife of M.S.Jaffar Sait applied for allotment of same vacant plot No.540 under GDQ on 02.06.2009. A4 received the said application on 04.06.2009 and made authoritative endorsement as ‘the request may kindly be complied with. Action may please be taken to issue orders‘ and immediately forwarded the same to the witness LW5-Surjit K.Chaudhary, I.A.S., the then
Principal Secretary to Government, Housing and Urban Development Department with a direction to consult the then Minister/A6 in this matter. As per direction, LW5 generated the file and the Joint Secretary and Secretary approved the request of A2 and thereafter, A6 concurred with the
recommendation of the said officials. Finally, the plot No.540 was allotted to A2 through G.O.Ms.No.143 Housing and Urban Development Department, dated 05.06.2009.
17.Likewise, A5 made application for allotment of plot under GDQ in the year 2006 and the same was kept pending. Suddenly, in the year 2008, file gained momentum and plot No.538 at Kamarajar Nagar, Thiruvanmiyur under GDQ was allotted to A5. There is not dispute with regard to allotment of 15% of the Tamil Nadu Housing Board (TNHB) house sites/houses/flats are marked for the allotment of plots under the discretionary quota as per
G.O.Ms.No.1574/H & UD Department, dated 24.12.1991. As per G.O.Ms.No.88/H & UD Department, dated 20.05.2003, the special workers and responsible persons in the society who have done excellent job in the field of arts/science/literature/economic/public administration/sports etc., are the categories among the eligible group to get allotment under 15% of GDQ. In this case, under what category, A2 and A5 got eligibility under GDQ is not known and there is no material to that effect. LW6-R.Sellamuthu, former Secretary, Housing and Urban Development Department stated about the conversion of seven plot layout segment in survey No.76 part, Kamarajar Nagar, Thiruvanmiyur into six plot layout scheme for the convenience of A2 and A5. In his first statement, he stated that on the advice of A4, he processed
the applications of A2 and A5 seeking plots under GDQ. LW7K.N.Krishnasamy Rao, Former Joint Secretary, Housing and Urban Development Department stated that he got oral instruction from A6 in processing the note file of A2 under GDQ. The Section Officer K.Hemalatha, Housing and Urban Development Department corroborated the statement of
LW7 and she stated that it is on the instruction of LW7 and one Premabai, Section Officer, she used to prepare the note sheet and put up the file. She also stated that in clear violation of procedure contemplated in allotting plots under GDQ, the note file of A2 & A5 processed. Further, on the oral instructions and directions of A6, the Secretary and Joint Secretary instructed the officials down below to put up such note file. The statement of LW5Mr.Nepoleon, Deputy Secretary to Government, Housing and Urban Development Department confirmed the procedure for allotment of plots under GDQ and also confirmed the Secretariat Office Manual Procedures. LW5 stated that A4 had no power to deal in allotment of plots under GDQ and as a Secretary to the then Chief Minister of Tamil Nadu, he issued instructions without any authority and the same was forced to be followed.
18.LW8-K.Phanindra Reddy, I.A.S., Secretary to Government, Housing and Urban Development Department confirmed that on the instruction of LW7-K.N.Krishnasamy Rao, Former Joint Secretary, Housing and Urban Development Department, Chennai, the officials below him had put up note file. He further stated that there is no specific order or circular prescribed to produce proof by the applicants, who claims special workers and responsible persons in the society and have done excellent job in the field of arts/science/literature/economic/public administration/sports. LW9-Surjit K.Chaudhary, I.A.S., Secretary to Housing and Urban Development Department confirmed A6 used to give oral instruction and approval to allot plots under GDQ. The witnesses from the TNHB stated that six plots in Kamarajar Nagar, Thiruvanmiyur were allotted under GDQ and sale deed were executed in favour of applicants. The sale deed from the TNHB is a leasecum-sale agreement. A2 and A5 knowing very well that it is a lease-cum-sale agreement and having well aware of the condition that the lessee purchaser shall not be entitled to assign, sublet, or part with the possession of the whole or any part of the property without the previous permission in writing of the lessor-vendor (TNHB), have entered into a joint venture agreement with A7 for development of the plots for commercial purpose. A2 and A5 have benefited from the Joint Venture Agreement.
19.Further, the witnesses from Secretariat office and TNHB reiterated the condition followed by the TNHB in allotting the house sites/houses/flats under 15% of GDQ. They further confirmed that there is clear case of violation of lease-cum-sale agreement condition No.4 by A2 and A5. The other witnesses in this case are house search witnesses and witnesses from the Sub Registrar Office and from the DGP office with regard to intimation and permission for acquiring immovable properties of M.S.Jaffar Sait. LW6R.Sellamuthu, Former Secretary, Housing and Urban Development Department and LW7-K.N.Krishnasamy Rao, Former Joint Secretary, Housing and Urban Development Department gave statement under Section 164 Cr.P.C., which confirms the involvement of the accused in committing the offence.
20.It is to be seen that A2, wife of M.S.Jaffar Sait, applied for allotment of same vacant plot No.540 under GDQ on 02.06.2009. A4 received the said application on 04.06.2009 and immediately on the next day i.e., on
05.06.2009, A2 was allotted plot No.540 by A6 under GDQ as per
G.O.Ms.No.143 Housing and Urban Development Deparment, dated
05.06.2009. Within four days, the plot allotment process in favour of A2 was done. This cannot be done unless there is predetermined meeting of mind. Thus, A6 without verifying the requisites for the allotment of plots under
GDQ, approved the plots to A2 and A5 and caused pecuniary advantage to them. Earlier, within short spam of time, the plot under GDQ was allotted to M.S.Jaffar Sait and thereafter, on his request, it was cancelled. Following the same, again plot was allotted to his daughter Ms.Jenifer and thereafter, it was cancelled and finally, the plot was allotted to A2. All these allotment of plot and cancellation of the same were done, within the family, that to, within the short period, which confirmed the violation of public duty against the interest of the state. The wilful negligence of A6 shows his criminal conspiracy with the other accused. After the change of Government in the year 2011, due to political vendetta with malafide intention, a complaint was lodged by the defacto complainant, is a matter of fact, which has to be decided during trial. A4 made authoritative endorsement on the application of A2 seeking plot under GDQ and forwarded to the witness Surjit K.Choudhry, I.A.S., with a direction to consult the then Minister/A6 in this matter. A4 being the Secretary of the Former Chief Minister of Tamil Nadu and having dominant position, acted against the public duty. Further, the allotment was made to A5, who is none other than his son. These facts are proved by the statements of
LW6 and LW7 recorded under Section 164 Cr.P.C.
21.The Investigating Officers recorded the statement of witnesses LW1 to LW26 and collected documents LD1 to LD133 and filed the charge sheet before the trial Court. The petitioners/A2, A4 to A6 are charged under Sections 120(B) & 409 IPC and Sections 13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act, 1988 and 109 IPC. The charge of conspiracy has to be necessarily decided during trial and not in the above petitions. In this case, all the accused are party to the criminal conspiracy and they committed criminal breach of trust and criminal misconduct. Further, A4 abetted the other accused to commit the offences. The contention of A2, A4 to A6 that there was no pecuniary loss suffered in any form either by the TNHB or the Government, is not the ground for quashing of the proceedings and discharging the accused from the case. It is well settled that criminal trial where offences involving Prevention of Corruption Act, 1988 to be conducted and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the accused but the entire society and administration.
22.In this case, some of the accused are public servants, who are clothed with public duties to discharge duty in the interest of state. But in this case, it is not done. The corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices. Recently, in the case of
“P.Dharmaraj Versus Shanmugam & Ors., in Special Leave Petition
(Crl.)No.1354 of 2022”, held as follows:-
“44. It is needless to point out that corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement holder. Therefore we hold that the High Court was completely in error in quashing the criminal complaint.”
23.The Hon’ble Apex Court in plethora of decisions, had held that the primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record is not to be gone into. Recently in the case of “State through Deputy
Superintendent of Police Versus R.Soundirarasu etc., reported in 2022 LiveLaw (SC) 741”, the Hon’ble Apex Court had held under what
circumstances, the discharge petition can be entertained. The relevant portion is extracted hereunder:-
“69.The real test for determining whether the charge should be considered groundless under Section 239 of the CrPC is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 of the CrPC. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.
70.The provisions of discharge under Section 239 of the CrPC fell for consideration of this Court in K. Ramakrishna and others v. State of Bihar and another, (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section 482. It was observed as follows:-
“4.The trial court under Section 239 and the
High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259] the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage.”
71.In the case of State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515, this
Court observed and held in paragraph 25 as under:-
“25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) “29. … At this stage, probative value of the materials has tobe gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the law does not permit a mini trial at this stage.””
72.The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be “groundless”. The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage – the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.
73.This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be “groundless”.
74.The word “ground” according to the Black’s Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word “groundless” would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.
SPOPE OF EXCERICSE OF REVISIONAL POWER AT THE
STAGE OF CHARGE
75.In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631, this Court held as under:-
“3…..The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.”
76.Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure.
77.This Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, has held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare case only to correct the patent error of jurisdiction.”
24.From the decision cited above, it could be seen that the revisional power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. In this case, on consideration of the statement of the witnesses and documents produced by the prosecution, this Court finds that there are sufficient ground for proceeding against A4 & A5 and further, there are materials against A2 & A6 as well. Hence, the question of quashing the case does not arise at all. The circumstances emerging from the record of the case, indicated the involvement of the accused persons in the alleged offence. Hence, A4 & A5 cannot be discharged from the case in C.C.No.14 of 2019, on the file of the Additional Special Court for Cases
Related to Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai.
25.In view of the above, this Court is not inclined to interfere with the orders of the trial Court, dated 20.12.2019 in Crl.M.P.Nos.17829 & 20625 of 2019 in C.C.No.14 of 2019 and the same are, hereby, affirmed. Accordingly, both Criminal Revision Cases filed by A4 & A5 stand dismissed.
26.In the light of the above decision and considering the fact the trial where the offences under the Prevention of Corruption Act, 1988 have to be conducted and concluded, this Court is not inclined to quash the proceedings in C.C.No.14 of 2019 against A2 and A6. Accordingly, both Criminal Original Petition stand dismissed.
27.It is made clear that the observations made herein is only for the purpose of deciding the above petitions. The trial Court uninfluenced with the orders of this Court, proceed with the trial, on its own merits and in accordance with law. The connected Miscellaneous Petitions are closed.
11.11.2022
Speaking order/Non-speaking order
Index: Yes/No Internet: Yes/No vv2
To
1.The Additional Special Court for Trial of Criminal Cases
Related to Elected Member of Parliament and Members of Legislative Assembly of Tamil Nadu, Singaravelar Maaligai, Chennai.
2.The Deputy Superintendent of Police,
Vigilance and Anti-Corruption, Chennai City-I Detachment, Chennai – 600 028.
3.The Public Prosecutor, High Court, Madras.
M.NIRMAL KUMAR, J. vv2
PRE-DELIVERY ORDERS IN
CRL.O.P.Nos.30357 & 31323 of 2019 and
CRL.R.C.Nos.147 & 527 of 2020
11.11.2022
![sekarreporter1: https://twitter.com/sekarreporter1/status/1608371151310565376?t=nyV_jeYWxl6IbK-ay8pwsA&s=08 [12/29, 13:27] sekarreporter1: ,W. P.Nos.21749, 23498 & 22745 of 2022and W.M.P.Nos.20760, 22453 & 21779 of 2022 C.V.KARTHIKEYAN,J. These three petitioners have come knocking at the doors of this Court seeking permission to participate in the counselling session for joining 3 year law course, offered by the 1st respondent university.](http://sekarreporter.com/wp-content/themes/hueman/assets/front/img/thumb-medium-empty.png)