Madras High Court
R.Thirugnanasambantham vs Central Bureau Of Investigation on 11 October, 2007
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/10/2007 CORAM: THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)No.2148 of 2004 and W.P.M.P.No.2178 of 2004 R.Thirugnanasambantham ... Petitioner Vs. 1.Central Bureau of Investigation Represented by Superintendent of Police, 26, Haddows Road, Chennai - 600 006. 2.The Inspector of Police, Special Police Establishment- Central Bureau of Investigation- Anti Corruption Branch, Chennai-600 006. 3.The Sub-Inspector of Police, Special Police Establishment- Central Bureau of Investigation- Anti Corruption Branch, Chennai-600 006. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus calling for the records comprised in the proceedings in C.C.No.13/2004 on the file of Special Judge Principal Special Court for C.B.I. cases, Madurai and quash the same and forbearing the respondents from proceeding with C.C.No.13/2004 on the file of Special Judge, Principal Special Court for C.B.I. cases Madurai so far as the petitioner is concerned. !For Petitioner ... Mr.T.R.Rajagopalan, S.C ^For Respondents ... Mr.Jacob Daniel, Special Public Prosecutor :ORDER
The petitioner, who is a practising Advocate of 34 years standing, has come up with the present writ petition, seeking to set aside the proceedings initiated against him before the Special Court for CBI cases, Madurai in C.C.No.13 of 2004, in which he is cited as Accused-3.
2. Heard Mr.T.R.Rajagopalan, learned Senior Counsel for the petitioner and Mr.Jacob Daniel, learned Special Public Prosecutor for the respondents.
3. The brief history of the case, about which there is no controversy, are as follows:-
(a) A person by name Mr.V.Rajaram, filed a claim petition in M.A.C.O.P.No.688 of 1995, on the file of the Motor Accidents Claims Tribunal, Madurai, claiming a compensation of Rs.1,20,000/- under various heads, on the ground that he was injured in a road traffic accident on 24-12-1994 when he was knocked down from a cycle, by a lorry.
(b) The United India Insurance Company Ltd., which happened to be the insurer of the lorry, was cited as the second respondent in the claim petition and they engaged the services of the petitioner, who was a panel Advocate for the said company, to defend them in the accident cliam. The company filed a Counter in the said claim petition contending that the accident occurred as a result of the contributory negligence on the part of the claimant and that the criminal complaint registered against the lorry driver in Crime No.198/94 itself was referred by the police, as a mistake of fact, on the basis of the very admission of the claimant, before the police. In other words, the insurance company denied any liability.
(c) After 5 years of the filing of the claim petition, the petition was referred to Lok Adalat. On 27-2-2000, a Joint Memo was filed before the Lok Adalat, Madurai, whereby the claim was settled by mutual consent at Rs.85,000/-.
The Motor Accident Claims Tribunal also passed an award on 12-4-2000 on the basis of the said settlement and the insurance company also made payment to the claimant and the settlement thus became final.
(d) On 13-1-2003, a FIR was registered in RC MAI 2003A0001 on the file of the SPL CBI ACB,Chennai, against one V.Anbalagan, former Divisional Manager and M.Surendran, Assistant Divisional Manager of Division IV of the aforesaid insurance company (and unknown others) for alleged offences under sections 120-B read with 420, I.P.C., and sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act.
(e) It was stated in the FIR that both the above named accused functioned as Divisional Manager and Assistant Divisional Manager of Division IV of the aforesaid insurance company at Madurai during the period 1999-2001 and that they entered into a criminal conspiracy between themselves and with unknown persons, to cheat the insurance company by paying insurance amount to fraudulent claims by abusing their official position, thereby causing wrongful loss to the company and corresponding wrongful gain to themselves. The basis of the allegations against the said officials in the FIR, was the settlement of about 8 motor accident insurance claims before the Lok Adalat, one of which was that of the aforesaid V.Rajaram, claimant in MACOP No.688 of 1995.
(f) After investigation, the Central Bureau of Investigation filed separate Final Reports in C.C.Nos.10 of 2004 to 17 of 2004, on the file of the Special Court. In C.C.No.13 of 2004, which related to MACOP No.688 of 1995, the petitioner herein was implicated as Accused-3. The aforesaid Divisional Manager and Assistant Divisional Manager of the insurance company were implicated as Accused 1 and 2 and the claimant in the MACOP was implicated as Accused-4.
(g) The Special Court took cognisance of the report and issued summons to the petitioner. But the petitioner was blissfully ignorant of the filing of the FIR and the conduct of the investigation as well as the filing of the final report, since he was never examined by the Investigating Officer in the course of investigation. The petitioner claims that he came to know about the whole thing only on 18-9-2004, when an officer of the insurance company called him over phone for the purpose of serving the summons issued by the Special Court for CBI cases. The petitioner claims that immediately on receipt of the said information, he made enquiries and gathered necessary particulars and thereafter he had come up with the present writ petition. To be precise, the petitioner filed the above writ petition in the first week of October 2004. It was admitted on 6-10-2004 and an interim stay of further proceedings in C.C.No.13 of 2004 was granted.
(h) Apart from various other contentions raised in the writ petition, the petitioner had also pleaded that he was admitted in St. Isabel's Hospital at Chennai on 11-2-2000 for chest pain; discharged on 14-2-2000 and admitted to the Apollo Hospital, Chennai, on 16-2-2000 for an Open Heart Surgery; underwent the surgery for the replacement of the Aortic valve on 19-2-2000 and was discharged on 27-2-2000 at Chennai; and that he never had an occasion to participate in the Lok Adalat on 27-2-2000 at Madurai.
(i) Upon service of summons in the writ petition, the respondents did not file a counter affidavit, but filed "Objections" as they normally do before the criminal court. In the 'Objections' so filed, the respondents did not take serious note of the alibi pleaded by the petitioner, but took a stand in para 18 that some Joint memos out of several joint memos were pending to be signed by the parties on 27-2-2000. In other words, the claim made by the petitioner that he was in hospital during the relevant point of time, was neither denied nor admitted in the objections filed by the respondents to the writ petition, in the first instance.
(j) However, taken perhaps by surprise, at the alibi pleaded by the petitioner, the Investigating Officer filed a memo before the Special Court for CBI cases, under section 173 (8) of the Code of Criminal Procedure and obtained permission to conduct further investigation. The Special Court also gave permission, despite the fact that the interim stay of all further proceedings in C.C.No.13 of 2004, granted by this court while admitting the present writ petition, was in force. With the permission so granted, the I.O. summoned the petitioner for an enquiry. But the petitioner did not appear for the enquiry in view of the stay granted by this court. Therefore, the I.O. proceeded with further investigation and filed an additional report before the Special Court, conceding the fact that the petitioner was actually hospitalised during the relevant point of time (16-2-2000 to 27-2-2000) at Apollo Hospital, Chennai for an Open Heart Surgery and that he was actually discharged from Hospital at Chennai, only on 27-2-2000, the same day on which the MACOP in question was settled before the Lok Adalat at Madurai.
(k) Having found out that the petitioner could not have physically participated in the Lok Adalat on 27-2-2000 at Madurai, the I.O. shifted his focus on proving the signature of the petitioner in the Joint memo filed before the Lok Adalat on 27-2-2000. In the first final report filed before the Special Court, the I.O. placed reliance solely upon a Statement recorded from the Junior Advocate of the petitioner, by name K.Vasudevan. Even according to the prosecution, the said K.Vasudevan was physically present before the Lok Adalat on 27-2-2000 and it was he, who later on received the cheque for payment to the claimant and also received the cheque for the fees payable to the petitioner. But since the physical presence of the petitioner before the Lok Adalat on 27-2- 2000 was presumed by the I.O. in the first instance and the same turned out to be incorrect after further investigation, his focus now shifted to the signature found in the Joint memo.
(l) Therefore the I.O. obtained specimen signatures of the petitioner from his Bank Accounts and sent them for analysis to the Handwriting Expert of the Central Forensic Sciences Laboratory, Chennai. The Expert opined that the signatures available on the joint Memo filed before the Lok Adalat bore similarities with the signatures found on some of the legal opinions given by the petitioner and that they indicate common authorship. But the Expert also opined that " a more definite opinion regarding common authorship could not be arrived at".
(m) After further investigation, the I.O. filed a report under section 173 (8) of the Code of Criminal Procedure along with the statement of 6 additional witnesses and 54 additional documents, apart from an additional statement recorded from K.Vasudevan, the former Junior Advocate of the petitioner. Thereafter, the respondents filed a Counter to the Rejoinder of the petitioner, in the present writ petition narrating the events that happened subsequent to the filing of the writ petition, incorporating the above facts.
4. Before venturing to deal with the rival submissions on the basis of the above factual matrix, it is relevant to note that both before the Special Court as well as before this court, the respondents admit in unequivocal terms, 2 things, namely:-
(a) that the petitioner was not examined in the course of investigation and
(b) that when the I.O. filed his Final Report before the Special Court (in the first instance), the I.O. had no knowledge either about the hospitalisation of the petitioner or about his Open Heart Surgery during the relevant point of time(11-2-2000 to 27-2-2000).
5. To be precise in the sequence of events, the MACOP was filed in 1995; the settlement before the Lok Adalat was reached on 27-2-2000; the FIR was filed on 13-1-2003; the Final report was filed on 04.08.2004; the writ petition was admitted on 6-10-2004; the prosecution comes to know, for the first time, about the hospitalisation (and surgery) of the petitioner at the relevant point of time, only from the pleadings in the writ petition; the prosecution thereafter seeks permission of the Special Court for further investigation and finds that the petitioner had been truly hospitalised; then the prosecution files a further report before the Special Court on 05.06.2006 admitting the fact that the petitioner had been hospitalised from 16-2-2000 to 27-2-2000 and that he had undergone an Open Heart Surgery on 19-2-2000 at Apollo Hospital, Chennai.
6.Keeing in mind, the above sequence of events (as admitted by the respondents), if we look at the first final report filed on 04.08.2004 before the Special Court, it is seen that the gravamen of the charges against the accused (including the petitioner) is that they conspired together to settle a Motor Accident Claim, which was not liable to be settled at all, and thereby caused wrongful loss to the Insurance Company with a view to make wrongful gain to the claimant. Since we are now concerned only about the petitioner who is implicated as A3 in the criminal case, it is sufficient to focus our attention to the relevant portions of the final report, which contain the accusations against the petitioner. They are as follows:
"Sri R.Thirugnanasampantham (A-3), 201 Nayakar New Street, Madurai, was a Panel Advocate for United India Insurance Company Ltd. Madurai. Whereas, a Divisional Manager of United India Insurance Company Ltd is authorised to enter into a settlement with claimants of insurance through Lok Adalat after satisfying himself that such claims fulfill the required parameters formulated by Head Office of United India Insurance Company Ltd, which are as follows.
Whereas, as per Circular No.HO:MOT:CIR:365:98 dt.04.02.98, it is stated utmost care must be taken to settle the claims for a fair and reasonable amount depending on the merits of each case.
Whereas the above procedure was in vogue during the year 1999 and 2000. Whereas that Sri V.Anbalagan (A-1) entered into a criminal conspiracy with Shri M.Surendran (A-2) Assistant Divisional Manager, Divisional Office-IV, United India Insurance Company Ltd., Madurai, SriR Thirgnanasampantham (A-3), 201 Nayakar New Street, Madurai, Panel Advocate for United India Insurance Company Ltd. Madurai and Sri V.Rajaram (A-4), 30-D/1, George Joseph Street, Kamarajapuram, Madurai to cause wrongful loss to United India Insurance Company by abusing A-1 and A-2's respective official positions in the matter of paying compensation to the claimant in the File No.271/95-96-MCOP.No.688/95 - MACT, Madurai.
That Sri R.Gunasekaran Srinivasan, Insurance Investigator conducted investigation into the said MCOP at the instance of Divisional Office VI of United India Insurance Company Ltd. He submitted the investigation report on 09.10.1995 along with photo copies of FIR, 161 Cr.P.C. statements etc. As per this investigation report, Crime No.198/94 was registered by Thallakulam Police Station against the driver of Lorry No.TDA 6327 which was subsequently dropped as a mistake of fact. In this regard, Shri R.Gunasekaran Srinivasan addressed a letter to the DO on 09.10.95 and remarked that the petitioner was not entitled to get any compensation. It was further revealed that on 24.12.1994 said Shri V.Rajaram (A-4), fell from his bicycle. It was also revealed that the lorry No.TDA 6327 was not at all involved in the accident. The Investigator further indicated in his report that the claimant i.e., Shri v.Rajaram (A-4), himself admitted that the accident was not caused by the lorry. The above facts resulted closure of the case by Thallakukam Police Station.
That when the United India Insurance Company Ltd was made respondent in the said MCOP filed by said V.Rajaram (A-4), the MCOP was entrusted to said Sri R.Thirugnanasampantham (A-3) Panel Advocate of United India Insurance Company Ltd, Madurai with the approval of the officials of the Company, Shri R.Thirugnanasampantham initially filed a counter in the Tribunal stating the above facts.
That basing on the above facts, this MCOP No.688/95 was not a fit case to be taken to Lok Adalat.
That knowing the above facts fully well, on 27.02.2000, said Sri Anbalgan (A-1) and V.Rajaram (A-4), filed a Joint Memo along with the said R.Thirugnanasampantham (A-3) in Lok Adalat on behalf of Insurance Company fraudulently agreeing to settle the claim for Rs.85,000/-. That based on the Joint Memo, a consent award was passed by the Court. That no opinion was obtained from the dealing Advocate by said Sri.M.Surendran (A-2). Said Sri M.Surendran (A-2) knowing fully well that there was no accident at all and the said claimant was not entitled for any compensation and that there was no opinion of the advocate, dishonestly, by abusing his official position prepared Motor TP Claim Note on 06.06.2000 stating that lawyer opined that all the papers were in order and that the Company should satisfy the award to the claimant, whereas the dealing Advocate did not give any opinion in this case.
That the above said acts of Shri V.Anbalagan , A1, Sri.M.Surendran, A2, Sri R.Thiruganasampantham, A3 and Sri V.Rajaram, A4 caused wrongful loss of Rs.85,000/- to the Insurance Company and corresponding wrongful gain to said Sri V.Rajaram, A4 even thought he Company was not at all liable to pay any compensation and it was not at all a fit case to be compromised in Lok Adalat. That the above acts of Sri V.Anbalagan, A1, Sri M.Surendran, A2, Sri R.Thirugnanasampantham, A3 and Sri V.Rajaram, A4 prima facie constitute offences punishable under Sections 120B r/w 420 IPC and under section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988."
7.A careful reading of the entire final report filed by the respondents under Section 173 Cr.P.C. shows that the allegations leveled against the accused revolve around -
(a)The circulars issued by the Head Office of the Insurance Company for settlement of claims through Lok Adalat;
(b)The violation of those circulars by the accused in taking up the claim in M.A.C.O.P.No.688 of 1995 to the Lok Adalat, despite the Insurance Investigators' Report that the claimant in M.A.C.O.P.No.688 of 1995 was not entitled to any compensation;
(c)The filing of the joint memo on 27.02.2000 before the Lok Adalat, fraudulently agreeing to settle the claim for Rs.85,000/-;
(d)The failure of the officials of the Insurance Company to obtain an opinion from the panel Advocate (petitioner); and
(e)The settlement of the claim to the claimant.
8.The respondents have come to the conclusion that the accused settled a claim through Lok Adalat inspite of the fact that it was not a case fit to be settled through Lok Adalat, in the light of the guidelines contained in the circulars issued by the Head Office of the Insurance Company. Such a conclusion has been arrived at by the respondents, as can be deduced from the final report, solely on the basis of two factors namely -
(a)that the investigation report of the Investigator of the Insurance Company Mr.R.Gunasekaran Srinivasan dated 09.10.1995 revealed that the claimant V.Rajaram (A4) was not entitled to any compensation; and
(b)that even as per the admission of the claimant V.Rajaram (A4) before the Police(investigating the accident), the criminal complaint lodged against the driver of the lorry No.TDA 6327 in Crime No.198/1994 on the file of the Thallakulam Police Station was referred as a mistake of fact. Therefore, the allegation made by the respondents is that in the light of the criminal complaint filed against the lorry driver being referred as a mistake of fact and also in the light of the stand taken by the Insurance Company in their counter to M.C.O.P.No.688 of 1995 that no compensation was payable, the accused ought not to have taken up the matter in Lok Adalat and settled an undeserving claim.
9.In the above background of the above facts, Mr.T.R.Rajagopalan, learned Senior Counsel for the petitioner contended that there was no material at all against the petitioner in the final report, so as to connect him with the offences alleged and that the Investigating Officer did not even know during the entire course of his investigation that during the period when the conspiracy was allegedly hatched, the petitioner was actually in hospital and that after realising his folly, from the averments contained in the writ petition, the Investigating Officer staged a cover-up by taking up further investigation under Section 173(8) Cr.P.C., despite an interim order of stay of all further proceedings in the criminal case granted by this Court. The learned Senior Counsel drew my attention to several judgments of the Apex Court, to contend that the proceedings of this nature, where no offence is made out even prima facie, should be thrown out at the threshold, without subjecting a person to the ordeal of a trial before a criminal Court.
10.Per contra, Mr.Jacob Daniel, learned Special Public Prosecutor (CBI) contended -
(a)that the writ petition was not maintainable in view of the fact that the petitioner had come to Court after a final report was filed before the Special Court and the Special Judge had taken cognizance and issued summons;
(b) that the appropriate course of action to have been adopted by the petitioner is to appear before the Special Court in response to the summons, receive copies of the report and the documents and thereafter workout his remedies under the Code of Criminal Procedure;
(c) that there was nothing wrong in the Investigating Officer conducting further investigation in the light of the alibi set up by the petitioner, since there is no requirement under Chapter XII of the Code mandating the Investigating Officer to examine the accused at the stage of investigation; and
(d) that in 4 out of 8 charge sheets filed by the respondents in C.C.Nos.10 to 17 of 2004, the Panel Advocates were implicated as accused and that those Panel Advocates who were accused in C.C.Nos.10, 14 and 16 of 2004 filed discharge petitions, which were dismissed by the Special Court and such dismissals also got confirmed by this Court in Crl.R.C.Nos.387, 473, 475 and 500 of 2005.
11.In the light of the preliminary objection taken by the learned Special Public Prosecutor to the very maintainability of the writ petition, it is necessary to deal with the same, before taking up any other issue.
Maintainability:-
It is now well settled that the extraordinary power of this Court under Article 226 or the inherent power under Section 482 of the Code could be exercised to prevent abuse of the process of any Court or to secure the ends of justice. One of the earliest cases on this issue is R.P.Kapur V. State of Punjab (AIR 1960 Supreme Court 866). In the said judgment, the Supreme Court listed out some categories of cases, where inherent power can and should be exercised to quash the proceedings. They are as follows:
"(i)where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii)where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii)where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
12.By way of illustration, the Supreme Court listed out the categories of cases where such power could be exercised to quash a First Information Report or a complaint, in its decision in State of Haryana V. Bhajan Lal (AIR 1992 Supreme Court 604). Paragraph 108 of the said decision where seven categories were formulated only by way of illustration, reads as follows:
"108.In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1.Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2.Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
3.Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4.Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5.Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6.Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7.Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13.The aforesaid decision was followed in P.S.Rajya V. State of Bihar (JT 1996 (6) S.C. 480) and in Pepsi Foods Limited V. Special Judicial Magistrate (1998 (5) SCC 749). In Pepsi Foods Case, the Apex court held that the nomenclature under which a petition is filed, is not quite relevant and that it would not debar the Court from exercising its jurisdiction. After holding so, the Apex Court squarely answered the very objection raised in the present case by Mr.Jacob Daniel, learned Special Public Prosecutor, in para 29 as follows:
"29.No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial."
14.Again the dicta laid down in Bhajan Lal's case, was followed by a three member Bench of the Supreme Court in State of Orissa V. Debendra Nath Padhi (2005 (1) CTC 134). In para 29 of the said judgment it was held by the Supreme Court as follows:
"29.Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of Constitution of India is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case."
15.In Zandu Pharmaceutical Works Ltd. V. Md.Sharaful Haque and Others (2004 AIR SCW 6185), the Supreme Court reiterated the law on the point, in paragraph 8, in the following words:
"In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
16.Even in a case where the accused filed an application for discharge before the Trial Court and thereafter sought parallel remedy by invoking the inherent powers of the High Court under Section 482 Cr.P.C.,the Supreme Court held that the jurisdiction of the High Court was not restricted. Dealing with the said issue, in G.Sagar Suri V. State of U.P. ((2000) 2 SCC 636), the Supreme Court held in paragraph 7 and 8 as follows:
"7.It was submitted by Mr.Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. V. Special Judicial Magistrate and Ashok Chaturvedi V. Shitul H.Chanchani wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.
8.Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
17.It is no doubt true that in all the aforesaid decisions as well as in various other decisions, the Apex Court issued a note of caution about the exercise of the power under Article 226 of the Constitution or Section 482 of the Code for quashing a F.I.R. or the proceedings. In State of Bihar V. P.P.Sharma (AIR 1991 S.C. 1260), the Supreme Court held in para 68 as follows:
"68.The another crucial question is whether the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution would interfere and quash the charge-sheet. The High Court found that the documents relied on by the respondents/accused were not denied by the State by filing the counter-affidavit. Therefore, they must be deemed to have been admitted. On that premise the High Court found that there is no prima facie case was made out on merits and chances of ultimate conviction are "bleak". The Court is not passive spectator in the drama of illegalities and injustice. The inherent power of the Court under Art. 226 of the Constitution of India is permitted to be resorted to. When the documents relied on by the respondents "demonstrate that no prima face offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed", and "in such a situation and circumstances the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approached this Court and this Court in these circumstances has no option but to grant the relief by quashing the F.I.R. and both the charge-sheets". Accordingly it quashed them. If this decision is upheld, in my considered view startling and disastrous consequences would ensue. Quashing the charge-sheet even before cognizance is taken by a criminal Court amounts to "killing a still born child".
Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit on the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. Once the proceedings are entertained the further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule. Delay feeds injustice to social order and entertaining writ petitions would encourage to delay the trial by diverse tricks. It is not to suggest that under no circumstances a writ petition should be entertained. As was rightly done by Rajasthan High Court in this case at the instance of the directors of the company, wisdom lies to keep the hands back and relegate the accused to pursue the remedy under the Code. In several cases this Court quashed the criminal proceedings on the sole ground of delay. In a case, F.I.R. Filed in 1954 for violation of the provisions of the Customs Act and Foreign Exchange Regulation Act as challenged in the Allahabad High Court. It was deliberately kept pending in the High Court and in this Court till 1990. The accusation was violation of law by named persons in the name of non-existing firm. The F.I.R. Was quashed in the year 1990 by another Bench to which I was a Member solely on the ground of delay. He achieved his object of avoiding punishment. This would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people would lose faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trial and relevancy. If proved to be true and relevant that they may serve as a defence for the respondents at the trial. The State quite legitimately and in my view rightly did not choose to file the counter-affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course "in annihilating the still born prosecution" by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Art.226. After the charge-sheet was filed, the F.I.R. no longer remains sheet anchor. The charge-sheet and the evidence place in support thereof from the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the charge sheets and the First Information Report. It is, therefore, not necessary to consider all the decisions dealing with the scope of the power of the High Court either under Section 482, Cr.P.C. or Art.226 of the Constitution to quash the First Information Report."
18.A similar note of caution was also struck in Bhajan Lal's case, (AIR 1992 S.C. 604), in para 109 as follows:
109.We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
19.Therefore, it is clear from the aforesaid decisions of the Supreme Court that if a case falls under any of the time tested parameters, laid down in Bhajan Lal's case, the proceedings pending before a criminal Court can certainly be quashed under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure, in order to prevent the abuse of the process of any Court or otherwise to secure the ends of justice, though while doing so, great care and caution is to be exercised. Hence, I hold that the present writ petition is maintainable, despite the fact that the petitioner has come to Court at a stage when the Special Court has taken cognizance of the final report and had issued summons to the petitioner for the supply of copies and for framing of charges.
20.Examination of the accused at the investigation stage:-
Mr.T.R.Rajagopalan, learned Senior Counsel for the petitioner contended that the Investigating Officer did not even examine the petitioner during the course of investigation and that there was grave miscarriage of justice on account of such a failure. But this contention was sought to be repelled by Mr.Jacob Daniel, learned Special Public Prosecutor (CBI) on the ground that the Code of Criminal Procedure does not contemplate either the examination of an accused or the affording of an opportunity to the accused at that stage. To drive home the point that no such opportunity is contemplated under Chapter XII of the Code of Criminal Procedure, Mr.Jacob Daniel invited my attention to the decision of the Supreme Court in Union of India V. W.N.Chadha (1993 Crl.L.J.
859). In para 90 and 98 of the said judgment, the Supreme Court held as follows:
"90.Under the scheme of Chap.XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceedings is in the stage of an investigation by a police officer.
98.If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
21.From the aforesaid decision of the Apex Court, it is clear that there is no statutory requirement under the Code, for the Investigating Officer to examine an accused at the stage of investigation. In many cases, it may even be a useless formality since any statement recorded from the accused may be of no consequence unless such statements lead to recovery. Therefore, it is not necessary for an Investigating Officer to examine an accused during the course of investigation, if, in his opinion, it would be of no consequence. It is enough for an Investigating Officer just to do what in his opinion, is sufficient to find out the truth. In doing so, he may in his absolute discretion, examine or not examine an accused. The accused also has no right to participate in the process of investigation and seek an opportunity of being heard.
22.While the law as aforesaid is very clear and unambiguous, I cannot lose sight of the fact that in the present case, the petitioner was admittedly in hospital recuperating after an open heart surgery, at the time of the alleged commission of the offence. Therefore, if the Investigating Officer had chosen to examine the petitioner in the course of investigation,not necessarily with a view to give him an opportunity, but in an attempt at finding out the truth, the course of the investigation could have taken a different turn. The alibi set up by the petitioner that he was admitted in the Apollo Hospital, Chennai on 16.02.2000, underwent an open heart surgery on 19.02.2000 and got discharged on 27.02.2000, is now admitted by the respondents, in the further report filed under Section 173(8) Cr.P.C. If only the Investigating Officer had made any sincere attempts in the course of investigation to speak to the petitioner, he could have found out even in the first instance, what he was compelled to find out in the course of further investigation.
23.If the Investigating Officer had attempted to examine the petitioner in the first instance, he could have found out that the petitioner was actually in hospital after a major heart surgery at the time of commission of offence. This revelation might have even turned the course of investigation in a different direction or put it on proper rails. It may be argued by the respondents that this did not make any difference, on account of the further investigation carried out by the I.O. after the filing of the writ petition. But such an argument would only be fallacious, since it is a human weakness to look and interpret any information/knowledge, acquired post-decision, with tainted eyes. In these circumstances, what the Investigating Officer had done by way of further investigation under Section 173(8) Cr.P.C. appears to be only a cover-up to make up for the ground lost in the first instance. However, I do not wish to decide the writ petition on this slender ground since it may open up new vistas.
24.Whether offence made out:-
As stated earlier, the entire case of the prosecution is that the Insurance Investigator R.Gunasekaran Srinivasan had submitted a report in the first instance that no compensation was payable and that the Insurance Company had also taken a stand before the Motor Accidents Claims Tribunal on the same lines and that therefore, the settlement of the claim before the Lok Adalat was fraudulent. Along with the final report filed on 04.08.2004, the Investigating Officer filed a list of about 43 documents and the statements of about 23 witnesses. Out of those 23 witnesses some of them related to the claims settled in other MACOP numbers, with which we are not concerned in the present case. After further investigation, the Investigating Officer filed the statements of 6 additional witnesses along with an additional statement of an already enlisted witness. The Investigating Officer filed a list of 54 additional documents along with the further investigation report.
25.It is needless to emphasis that if no offence is made out against the petitioner even if the allegations contained in the final report and further investigation report are taken to be uncontroverted, then the proceedings against the petitioner cannot be allowed to continue. But the said conclusion could be reached only after going through the statements of witnesses and the documents, to find out if they disclose the commission of any offence by the petitioner or whether he is in any way connected with the commission of any offence disclosed therein.
26.At the out set, it is seen that the Insurance Investigator R.Gunasekaran Srinivasan is cited as one of the witnesses at Serial No.21 in the "Calendar of Evidence - Oral" accompanying the final report. He is to speak about the investigation conducted in M.C.O.P.No.688 of 1995. The investigation report dated 09.10.1995 submitted by him, forms part of File No.271 of 1995 relating to O.P.No.688 of 1995, listed at Serial No.22 of the "Calendar of Evidence - Documentary", accompanying the final report. I have perused the said investigation report. While paragraphs 1 to 3 of the said report narrate the details of the investigation undertaken by him, paragraphs 4 and 5 contain his conclusion and it reads as follows:
"4.It is submitted that the Injured V.Rajamani in his 161(3) Statement clearly admitted that the accident was occurred only due to rash and negligent on his part and there will be no fault on the part of the Driver A.Malaichamy who drove the Lorry TDA 6327. So, the Police Case was dropped and Police authority as 'Mistake of Fact' vide their report dated 11.4.95. The xerox copies of the 161(3) Statement of Injured Rajamani and Venkateswaran are submitted along with final report of Police are submitted that herewith. Under these circumstances, the petitioner/Injured are not entitled to get any compensation as he voluntarily admitted that there will be no negligence on the part of the lorry Driver.
My elaborate investigation disclosed that the vehicular records pertaining to the Lorry TDA 6327 including the insurance policy were effective and valid and the Driver hold valid D.L. to drive HGV and he had renewed his D.L. covering the date of accident. BUT THE PETITIONER NOT ENTITLED TO GET ANY COMPENSATION AS HE ADMITTED THAT THE ACCIDENT NOT OCCURRED DUE TO ACT OF THE LORRY DRIVER. So, Claim petition is not maintainable in Law."
27.Based upon the above investigation report, the Insurance Company filed a counter to M.A.C.O.P.No.688 of 1995 before the Motor Accidents Claims Tribunal. A copy of the said counter filed in November 1995 by the Insurance Company through the petitioner herein before the Motor Accidents Claim ws Tribunal, Madurai also forms part of the File No.271 of 1995 listed at Serial No.22 in the "Calendar of Evidence - Documentary" along with the final report. Paragraphs 4, 5, 6 and 11 of the counter filed by the Insurance Company in M.C.O.P.No.688 of 1995 reads as follows:
"4.The allegation that the alleged accident was caused only due to the rash and negligent driving of the 1st respondent's lorry TDA 6327 is not admitted. The 1st respondent's lorry was proceeding from North to South at Alagarkovil Road. The lorry was driven by its driver at a slow and moderate speed with sounding horn keeping to his left side. At about 18-30 hrs near Goripalayam one Venkateswaran was riding on the bicycle without abiding traffic rules and regulations and the petitioner was sitting on the carrier of the cycle. Near Goripalayam Bus stop the cyclist Venkateswaran in order to overtake a city bus which was stopped in the bus stop suddenly took a turn and in that attempt lost the balance and fell on the 1st respondent's lorry which was just coming behind the bicycle and the petitioner sustained some minor injuries due to the impact of the alleged accident.
5.The alleged accident was caused only due to the contributory negligence of the petitioner and said - Venkateswaran.
6.Though F.I.R. was lodged in Cr.No.198/94 before Traffic I Tallakulam Police against the lorry driver, on 11/4/95 Tallakulam Police Inspector submitted a final report before Judicial Magistrate Court No.II, Madurai in Cr.No.198/94 and it is mentioned in the report that the accident was caused only due to the negligence of the person who was riding on the bicycle and there was no mistake on the part of the lorry driver and the matter was closed as mistake of fact.
11.The averments mentioned in para 23 of the petition are not admitted. The manner in which the alleged accident took place is not correctly mentioned. As stated supra the - alleged accident was caused only due to the negligence of the petitioner and Venkateswaran. The averments that the petitioner is hale and healthy and the sustained fracture in his right hand and an operation has to be performed and he is undergoing treatment in Government Hospital and heavy loss is caused to him are not admitted."
28.A scrutiny of the report of the Insurance Investigator dated 09.10.1995 and the counter filed by the Insurance Company to M.C.O.P.No.688 of 1995 in November 1995 (which are part of document No.22 relied upon by the prosecution before the Criminal Court) makes two things very clear namely -
(a)that there was an accident involving a cycle and a lorry bearing No.TDA 6327 and that the claimant V.Rajaram, was sitting on the carrier of the bicycle ridden by one Venkateswaran; and
(b)that the accident was not as a result of any rash and negligent driving on the part of the lorry driver but was on account of the negligence on the part of the person riding the bicycle.
29.It must be borne in mind that even now neither the Insurance Company nor the respondents question the correctness of the averments contained in the counter filed by the Insurance Company in M.A.C.O.P.No.688 of 1995. On the contrary, the prosecution actually places reliance upon the aforesaid counter filed by the Insurance Company. It is pertinent to note that the counter in M.A.C.O.P.No.688 of 1995 was signed and verified by an Assistant Manager of the Insurance Company in November 1995, when A1 and A2 (Divisional Manager and Assistant Divisional Manager) were nowhere in the picture. Since the Insurance Company does not disown the counter filed, the prosecution has sought to toe the line of the Insurance Company, as found in the counter to M.A.C.O.P.No.688 of 1995.
30.But if we look at the charges now sought to be framed against the accused, it is seen that the report of the Insurance Investigator has been totally misread in the final report. Though the report of the Insurance Investigator admitted that there was an accident, but absolved the lorry driver of any rash and negligent driving only,the final report proceeds on the footing that the lorry No.TDA 6327 was not at all involved in the accident. In other words, the Investigator's report and the counter filed by the Insurance Company to M.A.C.O.P.No.688 of 1995 (document No.22 in the list of prosecution documents) admit that there was an accident involving a lorry and a bicycle in which the claimant V.Rajaram was travelling on the carrier of the bicycle. But the liability was denied by the Insurance Company on the ground that there was no rash and negligent driving on the part of the driver of the lorry which was insured with the company. However, in the final report, a case of "no accident at all" is what is sought to be projected, to implicate the accused in an offence of criminal conspiracy and cheating.
31.That the prosecution seeks to proceed on the basis that there was no accident at all, is made clear by the counter affidavits and rejoinder affidavits filed by the respondents before this Court in this writ petition. In paragraph 12 of the counter filed to the present writ petition (in the form of objections), the respondents have taken a stand that as per the investigation report (of the Insurance Investigator), there was no accident at all. In para 19 of the counter filed by the respondents to the writ petition (in the form of objections) the respondents have reiterated that "the petitioner was fully aware that there was no accident as alleged by the claimant." Again in the same paragraph, the respondents have taken a stand that there was "no motor accident."
32.Thus it is clear that the entire investigation had proceeded on the footing as though there was no accident at all as per the Report of the Insurance Investigator and as per the stand taken by the Insurance company before the Motor Accidents Claims Tribunal. But unfortunately, the basic records namely, the Insurance Investigator's report and the counter filed to M.A.C.O.P.No.688 of 1995 which form the very basis of the investigation, proceeds on the footing that there was an accident involving a lorry and a bicycle but that there was no rash and negligent driving on the part of the lorry driver.
33.The driver of the lorry TDA 6327 by name A.Malaisamy and the owner of the lorry by name S.Sundararaju, are cited as witness Nos.22 and 23 in the final report. They have stated that the lorry TDA 6327 never hit the bicycle but that the lorry was stopped by the driver on seeing the cyclists going in front, falling from the cycle of their own accord. If these statements are true, the Insurance Investigator should have mentioned this in his report which forms part of prosecution document No.22. It should also have been reflected in the counter filed in M.A.C.O.P.No.688 of 1995. The petitioner could be attributed any knowledge about this, only if the Insurance Investigators' Report and the counter filed in M.A.C.O.P.No.688 of 1995 were in tune with such a story. If the story now woven by prosecution witness Nos.22 and 23 is correct, the Insurance Investigator as well as the person who filed the counter in M.A.C.O.P.No.688 of 1995 were both responsible for not reflecting this in the report and the counter. But the Insurance Company as well as the respondents have no dispute over the counter filed in M.A.C.O.P.No.688 of 1995.
34.Even as per the final report filed in C.C.NO.13 of 2004, A1 and A2 were the Divisional Manager and Assistant Divisional Manager respectively of Division 4 during the period from February 1997 to July 2000. Therefore, they were not associated with the counter filed in M.A.C.O.P.No.688 of 1995. The officer who signed the counter to M.A.C.O.P.No.688 of 1995 on behalf of the Insurance Company, in November 1995 is not accused of any conspiracy. On the contrary, the very same counter is relied upon by the prosecution to allege that there was no accident at all, though the said counter reads otherwise. Hence, I find that the very foundation of the case of the prosecution is on a thorough misconception and is so shaky that it cannot withstand even the mildest of tremors on the judicial (Richter) scale.
35.Coming to the allegation of conspiracy, to commit the other offences of cheating and corrupt practices, the positive case of the prosecution in the final report is "that knowing the above facts fully well, on 27.02.2000, said Anbalagan (A1) in conspiracy with the said M.Surendran (A2), R.Thirugnanasampantham (A3) and V.Rajaram (A4) filed a joint memo along with the said R.Thirugnanasampantham in Lok Adalat on behalf of the Insurance Company fraudulently agreeing to settle the claim for Rs.85,000/-." Thus the final report originally filed by the Investigating Officer before the Special Court on 04.08.2004 proceeds on the basis that there was a criminal conspiracy between the petitioner and the other accused on 27.02.2000, when the case was taken up in Lok Adalat and a settlement reached. But the said allegation withered away by the fact that the petitioner was admitted in St. Isabel's Hospital on 11.02.2000 with chest pain, got discharged on 14.02.2000 from the said hospital, got re-admitted in Apollo Hospital, Chennai on 16.02.2000 and had an open heart surgery conducted on 19.02.2000 and was discharged only on 27.02.2000. Normally it is for an accused who pleads alibi, to prove the same. But in this case, the Investigating Officer, after coming to know of the alibi pleaded by the petitioner, through this writ petition, conducted a further investigation in 2005 and filed a further report under Section 173(8) of the Code in June 2006 admitting the alibi. If the Investigating Officer had not conducted a further investigation, the burden of proving the alibi would have been cast only upon the petitioner and this Court could not have gone to the rescue of the petitioner for quashing the proceedings on the basis of the said alibi, since alibi is a matter of evidence. But as stated already, the further report of the Investigating Officer filed on 05.06.2006 before the Special Court confirms the fact that on 27.02.2000 when the Lok Adalat was held at Madurai, the petitioner was discharged from Apollo Hospital, Madras, after an Open heart Surgery. Therefore, the alibi stands accepted by the prosecution.
36.But unfortunately, the Investigating Officer did not have the grace to delete the name of the petitioner from the charge sheet, even after finding the above fact to be true. On the contrary, the Investigating Officer had proceeded at a tangent, perhaps on account of the wounded pride and sought to justify the charges against the petitioner on two inferences namely,
(a) that the signature of the petitioner in the joint memo filed before the Lok Adalat on 27.02.2000 stood proved by the opinion of the Handwriting Expert; and
(b) that the petitioner received fees from the Insurance Company, after settlement.
37.According to the final report filed on 04.08.2004, the conspiracy was allegedly hatched on 27.02.2000 in the Lok Adalat. Now this date has been admitted to be wrong. Unfortunately, neither the final report nor the oral or documentary evidence bear any indication of the period during which the conspiracy was allegedly hatched. Since the prosecution could not originally specify any period during which the conspiracy was hatched, the prosecution found it convenient to adopt 27.02.2000 as the date of the conspiracy. But that date collapsed in the further investigation. Therefore,there are now no materials to show as to when and how a conspiracy was hatched.
38.As stated earlier, the final report was accompanied by a list of about 43 documents and the statements of about 23 witnesses. Out of the 43 documents, the documents at Serial Nos.1 to 5 and 8 related to the registration of case and the course of investigation. The documents at Serial Nos.6, 7 and 9 are the circulars of the Head Office of the Insurance Company. Document No.10 related to two other MACOPs about which we are not concerned. Document Nos.12 and 13 are the circulars of the Head Office of the Insurance Company regarding Panel Advocates, Insurance Investigators and claim notes for arriving at the quantum of compensation. Document Nos.14 and 15 again, are the circulars of the Head Office of the Insurance Company. Document Nos.11,16, 19, 20 and 21 are the receipt memos issued by CBI acknowledging the receipt of documents by the Investigating Officer. Document Nos.17 and 18 are the list of Lok Adalat cases signed by A1 and A2 respectively (Divisional Manager and Assistant Divisional Manager). Document No.22 is the file F.No.271 of 1995. This file contains the claim petition in M.A.C.O.P.No.688 of 1995, the Insurance Investigator's report, counter filed before the Tribunal, joint memo signed before the Lok Adalat, award of the Tribunal, claim note disbursement voucher, etc. Document Nos.23 and 25 are the F.I.R. in Crime No.198 of 1994, accident register and the inpatient record relating to the claimant V.Rajaram (A4). Document Nos.26 and 27 are the Sanction Orders for prosecution of A1 and A2. Document Nos.28 to 40 are the Disbursement Vouchers to various officials of the Insurance Company including A1 and A2 for having made payment to them. Document Nos.41 to 43 are the Letters of empanelment of Advocates R.Murugesan, E.Elangovan and R.Mahalingam, about whom we are not concerned in the present case.
39.These documents (Serial Nos.1 to 43) filed by the prosecution, do not disclose any conspiracy. But they disclose two important facts, which are as follows:-
(a) After the settlement reached before Lok Adalat in M.A.C.O.P.No.688 of 1995 on 27.02.2000, A2 sent the cheque amount of Rs.85,000/- drawn in favour of the Motor Accident Claims Tribunal, under a covering letter dated 07.06.2000, addressed not to the petitioner, but to his junior K.Vasudevan(who is cited as a Prosecution witness). Even the deposit of the cheque with the Tribunal towards settlement of the claim amount in the MACOP, was made in June 2000 only by Mr.K.Vasudevan, whose evidence is strongly relied upon by the prosecution to implicate the petitioner.
(b) Even the fees intended for the petitioner was handed over by A2 only to K.Vasudevan and not to the petitioner. The opinion of the petitioner was not taken either before the Lok Adalat held on 27.02.2000 or before the Tribunal passed a decree on 12.04.2000 or before the payment was made on 06.06.2000.
40.Coming to the list of witnesses, it is seen that out of 23 witnesses listed in the "Calendar of Evidence - Oral" accompanying the final report, 6 witnesses are officials of the Insurance Company. While one witness was to speak about the Sanction Orders issued for the prosecution of A1 and A2, another officer is to speak about the handing over of the files and documents to the C.B.I. and a 3rd officer is to speak about the handing over of Head Office circulars to C.B.I. A 4th officer is to speak about the handing over of the list of cases prepared by A1 and A2 for Lok Adalat and the 5th officer is to speak about the claim files and identification of writings of officials who handled the files. The 6th officer is to speak about the procedure to be followed in settlement of motor accident third party claims.
41.The witness at Serial No.7 in the "Calendar of Evidence - Oral" is the Senior Medical Records Officer, Madurai, who is to speak about the accident registers and in-patient records of Government Rajaji Hospital, where the claimant A-4 undertook treatment for the injury sustained in the accident. The witnesses at Serial nos.8, 9, 10, 11, 12 and 13 are to speak about the other MCOP cases but not about M.C.O.P.No.688 of 1995. The 14th witness is the Head Constable of Thallakulam Police Station, who is speak about the investigation conducted in Crime No.198 of 1994 relating to M.C.O.P.No.688 of 1995. The witnesses at Serial Nos.15 to 17 speak about other MCOP cases. The 18th witness is a Doctor who is to speak about the issue of disability certificate to the claimant in M.C.O.P.No.688 of 1995. The 19th witness is a Motor Vehicles Inspector Grade-I and he is to speak about the accident inspection reports in other cases. The 20th witness is a Special Inspector of Police (CBI) who conducted the investigation at one point of time. The 21st witness is the Insurance Investigator R.Gunasekaran Srinivasan. The witnesses at Serial Nos.22 and 23 are to speak about the fact that there was no accident in respect of the vehicle being lorry, bearing Registration No.TDA 6327. The 24th witness is K.Vasudevan, former Junior of the petitioner, who was admittedly present physically in the Lok Adalat on 27.02.2000 and who later received the cheque from the Insurance Company in June 2000, for depositing into Court. The 25th witness is the Investigating Officer.
42.It is seen that none of the witnesses speak about the conspiracy or about the involvement of the petitioner in the conspiracy. As already pointed out, while the Insurance Investigator R.Gunasekaran Srinivasan is sought to be examined to prove that the accident did not occur on account of the rash and negligent driving on the part of the lorry driver, witnesses 22 and 23 are sought to be examined to prove that there was no accident at all. Thus what is sought to be established through witnesses 21 to 23 are only conflicting claims which belie any conspiracy theory.
43.After further investigation, the Investigating Officer filed another report on 05.06.2006 along with statements of 6 additional witnesses as well as an additional statement of a witness (K.Vasudevan)already examined. Four out of those 6 additional witnesses are employees of United India Insurance Company, who are to speak about the handling of MACOP cases by the petitioner, the disbursement of fees, the identification of the signatures of the petitioner in MCOP files and the duties and responsibilities of the Panel Advocates of the Insurance Company. The remaining two witnesses are Officers of Andhra Bank and Indian Bank, who handed over the details of Bank accounts of the petitioner and handed over documents containing the admitted signatures of the petitioner. The additional statement obtained from K.Vasudevan, a former junior of the petitioner was for the purpose of proving the signatures of the petitioner on the questioned document and admitted writings.
44.The investigation conducted with those additional 6 witnesses as well as with Mr.K.Vasudevan, also do not throw any light upon the conspiracy theory. If admitted in total, without being controverted, the evidence of those witnesses could only confirm that the joint memo filed on 27.02.2000 contained the signature of the petitioner. This by itself, does not establish even a semblence of the conspiracy alleged in the charge sheet. The set of 54 additional documents filed along with the further investigation report are also intended to prove the admitted writings of the petitioner and the receipt of fees by the petitioner. Thus the additional documents also do not speak about the conspiracy.
45.The charges of conspiracy and fraud as against the petitioner, are sought to be established only by four circumstances namely -
(a)that the joint memo filed on 27.02.2000 before the Lok Adalat contained the signature of the petitioner;
(b)that the signature of the petitioner was originally identified by his junior K.Vasudevan who was present in the Lok Adalat;
(c)that the signature of the petitioner contained in the joint memo dated 27.02.2000 is found to bear similarities with his admitted writings in the bank accounts and the opinion tendered by the handwriting Expert; and
(d)that after the conclusion of M.A.C.O.P.NO.688 of 1995, the petitioner accepted fees from the insurance company.
In other words, the charges of conspiracy and fraud are sought to be established by circumstantial evidence.
46.But it is a fundamental principle that conspiracy can only precede the commission of another offence and not succeed the offence, which it was intended to commit. Unless the circumstances point out something that had happened prior to the commission of another offence and a meeting of minds with a view to commit an offence, a charge of conspiracy cannot be made out. Any overt act committed after the commission of another offence, cannot be termed as conspiracy to commit that other offence. Therefore, to prove conspiracy in the present case, the following essential ingredients should have been borne out, from the statements of witnesses and the documents, in the same sequence, namely
-
(a) that there was a meeting of minds;
(b) that a settlement was reached before the Lok Adalat in pursuance of such a meeting of minds;
(c) that a joint memo was prepared and signed thereafter, in accordance with the settlement so reached;
(d) that the joint memo was filed into Court and a decree passed in terms thereof;
(e) that payment was made to the claimant in accordance with the decree; and
(f) that fees was received for concluding such a settlement.
47.Out of the aforesaid various steps, even according to the prosecution, the petitioner was involved only in two steps namely, signing of the joint memo and receipt of fees. In respect of all the other steps involved in the whole episode, it was K.Vasudevan, the former junior of the petitioner who was admittedly involved. Even according to the prosecution,(as the further investigation report), K.Vasudevan alone was present in Lok Adalat and even a cheque for Rs.85,000/- was sent only to his address in June 2000 for depositing to the credit of the Motor Accidents Claims Tribunal. Interestingly, the witness K.Vasudevan, in his statement recorded by the Investigating Officer on 16.12.2004 admitted not only to his presence in Lok Adalat on 27.02.2000 but also admitted to have received the fees payable to the petitioner, on 12.06.2000. The relevant portion of the statement of K.Vasudevan recorded by the Investigating Officer is as follows:
"I am now shown photocopy of voucher dated 9.6.2000 for Rs.1417/- in MCOP No.688/95. This bears the signature of Shri R.Thirugnanasampandam for having received the fee of Rs.1417/-. I received the cheque No.278450 on 12.6.2000 from the UIICo. Div. IV, Madurai and gave the same to Shri R.Thirugnanasampandam. I am now shown joint memo dated 27.2.2000 between Insurance Company and claimant i.e., Shri V.Rajaram for Rs.85,000/- before Lok Adalat. With regard to this on being questioned, I state that I attended the Lok Adalat on that day and I don't remember whether I attended alone or along with Shri R.Thirugnanasampandam. However, Shri R.Thirugnanasampandam's signature is available on the joint memo which is shown to me now. Along with this case there were other cases also on that day compromised before Lok Adalat on 27.2.2000. In this case, there was no change of advocate till the disposal of the case in Lok Adalat and Shri R.Thirugnanasampandam was the advocate till the end. Had there been a change, he would not have received the fees."
48.The letter dated 07.06.2000 in File No.271/95-96 enclosing a cheque for Rs.85,000/- representing the Lok Adalat award amount, was actually addressed to "K.Vasudevan, Advocate, 201, Nayakar New Street, Madurai-1" and it forms part of the document at Serial No.22 filed by the Investigating Officer along with final report. Thus the statement of witness K.Vasudevan, on which the prosecution places heavy reliance, read with the letter dated 07.06.2000 forming part of prosecution Document No.22, discloses three important things namely -
(a) that witness K.Vasudevan was certainly present in the Lok Adalat on 27.2.2000 (though the petitioner was not);
(b) that the settled claim amount was sent by way of cheque on 07.06.2000 only to witness K.Vasudevan and not to the petitioner; and
(c) that the fees for the petitioner was also sent only to witness K.Vasudevan to be forwarded to the petitioner.
Moreover, the statement of witness K.Vasudevan recorded by the Investigating Officer on 16.12.2004 shows that in the year 1996 the petitioner herein was appointed as Government Pleader and that in 1998 he shifted to Chennai. In the first paragraph of the further statement recorded from witness K.Vasudevan by the Investigating Officer on 16.12.2004, he has stated the following:
"In the year 1996 Shri R.Thirugnanasampantham was appointed as Government Pleader and in 1998 he shifted to Chennai. When he was practising here, his office is at No.13 North Chithirai Street, Madurai and his house was situate in North Masi Street, Madurai, address to which I do not know. However, he was attending to U.I.I.Co. cases at Madurai, though less frequently after becoming Government Pleader."
49.Thus two years before the date of the alleged conspiracy namely 27.2.2000, before the Lok Adalat, the petitioner had shifted his practice to Chennai as the Government Pleader. 16 days before the date of the alleged conspiracy he was admitted in hospital and remained in the hospital till the date of the alleged conspiracy. The Lok Adalat was held at Madurai on the same day on which he was discharged from hospital at Chennai after an open heart surgery. If the petitioner had been a co-conspirator, he should have atleast received either the cheque for Rs.85,000/- for depositing into the Tribunal or atleast received the cheque for his own fees, in June 2000. Ironically the petitioner is implicated at the instance of his own junior (i) who was physically present in the Lok Adalat on 27.2.2000; (ii) who received the claim amount of Rs.85,000/- on 07.06.2000 for depositing into Court; and (iii) who received the fees from the Insurance Company on behalf of his senior (the petitioner). Thus the participation of the petitioner (i)either in any event prior to the date of Lok Adalat or (ii)in the Lok Adalat on 27.2.2000 (iii) or even in any event after the Lok Adalat, is not even whispered by any of the witnesses. On the contrary, it is the admitted case of the prosecution that there was no participation by the petitioner, in any event, either before, during or after the Lok Adalat.
50.About the statement of the Junior Advocate K.Vasudevan, less said the better. As a person who handled the case MACOP No.688 of 1995, on behalf of his senior (the petitioner herein) in the Lok Adalat, and as a person who received not only the cheque for deposit into court but also the cheque for his senior's fees, he did not make any whisper about his Senior's hospitalisation, when his statement was recorded by the I.O. in the first instance. But in his second statement recorded during further investigation, he has said that he did not remember if his senior was present in Lok Adalat or not. This Junior Advocate is now a panel Advocate for the same insurance company and his statements to the I.O., show him in poor light, as a person seeming to be suffering from selective amnesia. I am compelled to make this remark on account of the fact that admittedly, he was present in Lok Adalat on 27-2-2000, but the petitioner was not present. After the settlement before the Lok Adalat, the case went back before the Tribunal, since section 21 of the Legal Services Authorities Act,1987 had not been amended at that time. On 12-4-2000 the Tribunal passed a decree in terms of the settlement reached before the Lok Adalat. There is no evidence to show that the petitioner was present at least before the Tribunal on 12-4-2000 when the decree was passed. After the decree, the decree amount was sent by A-2 only to witness K.Vasudevan on 7-6-2000, though the petitioner was the panel Advocate to whom the case had been entrusted. Again the fees payable to the petitioner for the case, was also sent only to K.Vasudevan on 7-6-2000. Thus A-2 had always been coordinating only with K.Vasudevan for handling the brief and such a person feigning ignorance of even his senior's hospitalisation, is to say the least, betrayal of the worst order.
51.Another interesting aspect of the case is that even according to the prosecution, the Panel Advocate's opinion was not taken before striking a compromise in the Lok Adalat. The final report filed by the prosecution itself confirms that A2 did not obtain the opinion of the petitioner (Panel Advocate) before agreeing to a settlement before the Lok Adalat. The settlement reached before the Lok Adalat on 27.2.2000, ultimately resulted in a decree passed on 12.04.2000 on the file of the 4th Additional Sub Judge, Madurai in M.C.O.P.No.688 of 1995. While preparing a Claim Note for settlement of the claim in accordance with the decree of the Tribunal, A-2 has indicated that as per the Lawyers opinion the Company was to satisfy the award amount. The "claim note"
dated 06.06.2000 in File No.271/95-96 relating to M.C.O.P.No.688 of 1995 signed by A-1 and A-2 on 06.06.2000, which forms part of the prosecution document at Serial No.22(22.8) shows in column No.18 under the caption "lawyers opinion"
that A-2 had recorded the following: "He has opined that all the papers are in order and we have to satisfy the award amount to the claimant." But it is the positive case of the prosecution that no such opinion was taken by A-1 and A-2 from the petitioner. If the petitioner had actually been a co-conspirator, A-1 and A-2 would not have had any difficulty in getting an opinion from the petitioner and putting it in the file, so that all the formalities were completed without any lacunae. The very fact that the petitioner never gave any opinion when the claim note was prepared on 06.06.2000, coupled with the fact that witness K.Vasudevan received the cheque under the covering letter dated 07.06.2000 shows that the petitioner was nowhere in the picture at any point of time in the entire drama.
52.Coming to the last aspect of the matter, it is seen that the prosecution in its further investigation report, had placed heavy reliance upon the fact that the petitioner received fees in June 2000 for the very same case M.C.O.P.No.688 of 1995 from the Insurance Company. The investigation report proceeds on the footing that the petitioner ought not to have received fees for conducting the case if the signature contained in the joint memo was not his signature and that if the petitioner was not able to attend the Lok Adalat, he must have given no objection for change of counsel. Thus, the Investigating Officer has taken the role of the disciplinary committee of the Bar Council, perhaps ably assisted by the petitioner's junior himself. For a moment the Investigating Officer appears to have forgotten that he was not enquiring into any allegation of professional misconduct against the petitioner, but was enquiring into charges of conspiracy, fraud and corrupt practices. In any event, as stated earlier, a post-facto event, cannot point out to a conspiracy. The prosecution will have to establish conspiracy either by direct or circumstantial evidence but not invite inferences on the basis of events which happened four months later.
53.It is surprising that the Investigating Officer had not cared to see the style of functioning of Lok Adalats, to understand its dynamics. Section 21(1) of the Legal Services Authorities Act, 1987 declares the award of Lok Adalat to be a decree of a Civil Court. Section 21(2) of the said Act declares that the award passed by the Lok Adalat shall be final and binding on all parties to the dispute. By virtue of 21(3) all proceedings before a Lok Adalat are deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 I.P.C. and every Lok Adalat is deemed to be a civil Court for the purpose of Section 195 and Chapter XXVI of the Cr.P.C. Section 25 of the Legal Services Authorities Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 20 of the Legal Services Authorities Act empowers the Lok Adalats to take cognizance of cases referred to it by agreement between parties or on an application by one of the parties. Sub-section (4) of Section 20 empowers the Lok Adalat to determine any reference with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of natural justice, equity, fair play and other legal principles. Therefore, any allegation that a case was settled before Lok Adalat as a result of a conspiracy or fraud, should be scanned and scrutinised with utmost care and circumspection, though any proceeding before any court can always be set at naught if vitiated by fraud.
54.The fact that the Investigating Officer was completely oblivious to the provisions of the Legal Services Authorities Act and to the dynamics of Lok Adalats, is seen from the stand taken by the respondents in para 13 of the counter to the present writ petition (in the form of objections). In para 13 of the counter, the respondents have taken a stand that the petitioner ought to have raised the matter with the Insurance Company and the Motor Accidents Claims Tribunal for reviewing the award, as the claimant(A-4) was not entitled to any claim since there was no accident at all. This exposes the ignorance of the I.O. to the provisions of the Legal Services Authorities Act.
55.One last issue raised by Mr.Jacob Daniel, learned Special Public Prosecutor (CBI) is that two other Panel Advocates implicated in other criminal cases C.C.Nos.10, 14 and 16 of 2004 filed Discharge Petitions and that they were dismissed by the Special Court. The dismissal orders were also confirmed by this Court in Crl.R.C.Nos.387, 473, 475 and 500 of 2005. Therefore, the learned Special Public Prosecutor contended that the case of the petitioner cannot be treated differently. However, I am unable to appreciate the said contention for the simple reason that no two criminal cases could be treated alike. In those cases, the Panel Advocates were placed on a different footing than the present petitioner. Therefore, no comparison can be made between the present case and those cases.
56.Thus in fine, I find that the allegations contained in the final report as well as the further report read with the statements of witnesses and the documents filed by the prosecution, even if uncontroverted, do not make out any charge of conspiracy, fraud or corrupt practices. Therefore, proceedings in C.C.No.13 of 2004 against the petitioner cannot stand even for a moment and they are liable to be quashed. Accordingly, this writ petition is allowed with costs and the proceedings in C.C.No.13 of 2004 on the file of the Special Court for C.B.I. cases, Madurai are quashed in so far as the petitioner alone is concerned. Consequently, connected miscellaneous petition is closed.
To
1.The Superintendent of Police, Central Bureau of Investigation 26, Haddows Road, Chennai - 600 006.
2.The Inspector of Police, Special Police Establishment-
Central Bureau of Investigation-
Anti Corruption Branch, Chennai-600 006.
3.The Sub-Inspector of Police, Special Police Establishment-
Central Bureau of Investigation-
Anti Corruption Branch, Chennai-600 006.