Madras High Court
E.Veluchamy vs The Special Investigation Team on 29 April, 2009
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.4.2009
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Habeas Corpus Petition No.529 of 2009 & M.P.No.1/2009
E.Veluchamy Petitioner
Vs.
1.The Special Investigation team,
rep.by its Inspector,
Central Bureau of Investigation,
New Delhi.
2.The State of Tamilnadu,
Rep.by its Secretary,
Ministry of Home Department,
Fort St.George,
Chennai-600009. Respondents
* * *
Habeas Corpus Petition filed under Article 226 of the Constitution of India, praying to direct the respondents to produce the bodies of (1) Nalini, (2) Santhan, (3) Murugan, (4) Shankar, (5) Vijeyandran, (6) Ruban and (7) Arivu and release them.
* * *
For petitioner : Mr.R.Karuppan
For R.1 : Mr.N.Chandrasekar, Spl.P.P.
For R.2 : Mr.N.R.Elango, Addl.P.P.
* * *
O R D E R
ELIPE DHARMA RAO, J.
Probably, this case would stand as a classic example in the judicial history as to how well established facts could be twisted to the convenience of parties and how a provision of law could be misused and how the valuable public time of the Court could be wasted by filing a fictitious and frivolous litigation aiming publicity and to settle political and personal scores, knowing fully well that they are fighting a losing battle.
2. Coming to the factual matrix of the case, the entire Nation - irrespective of caste, creed, race and religion - was shocked and grieved at the stroke of 22.15 hours on 21.5.1991, when the former Prime Minister of India, Sri Rajiv Gandhi was assassinated by a human bomb at Sriperumbudur, Tamil Nadu. Some other persons also lost their lives in that incident. This inhuman, barbaric and shameful act perpetrated by the forces outside India, which was later identified as the LTTE of Sri Lanka, which is a banned outfit now, was condemned by each and every civilized nation in the world and every human being on the earth. A case in Crime No.329/1991 was registered by the Inspector of Police, Sriperumbadur at 01.15 hours on 22.05.1991 for the offences under Sections 302, 307, 328 IPC and Sections 3 and 5 of the Explosive Substances Act and the investigation of the case was taken up by the Crime Branch CID, Tamil Nadu. Thereafter, at the request of the Government of Tamil Nadu, the case was re-registered by the Central Bureau of Investigation as RC.9(S)/91-CBI/SCB/MAS under Sections 120B r/w.Sections 302, 326, 324, 201, 212 and 216 of IPC, Sections 3,4 and 5 of the Explosive Substances Act; Section 25 of the Arms Act; Section 12 of the Passport Act; Section 14 of the Foreigners Act; Section 16(1-A) of Wireless and Telegraph Act and Sections 3,4 and 5 of the Terrorist and Destructive Activities (Prevention) Act, 1987 (in short TADA) on 24.5.1991. After completing the investigation, the Special Investigation Team (SIT) constituted by the Central Bureau of Investigation to investigate the case under the leadership of Mr.D.R.Karthikeyan, filed the charge-sheet on 20.5.1992 before the Designated Court No.1 under TADA, Chennai, which was specially constituted under Section 9(1) of TADA Act, 1987 for trying Sri Rajiv Gandhi assassination case and the same was taken on file in C.C.No.3/1992, against the available 26 accused, including (1) Nalini, (2) Santhan, (3) Murugan, (4) Shankar, (5) Vijeyandran, (6) Ruban and (7) Arivu, seeking whose 'release' this petition has been filed. The case against the absconding accused was split up as C.C.No.11/1992 and the same is still pending.
3. The Designated Court No.1 under TADA, Chennai found all the available 26 accused guilty of the charges and all of them were sentenced to capital punishment of death on various counts. Since as per Section 19 of the TADA Act, an appeal against the conviction and sentence rendered by a Designated Court would lie only before the Honourable Supreme Court of India, all the 26 accused, including the above named seven persons, preferred appeals before the Honourable Supreme Court of India in their individual capacity. A Three Judge Bench of the Honourable Supreme Court of India heard all the appeals along with Death Reference Case No.1/1998 and all the appeals were disposed of on 11.5.1999 by the Honourable Supreme Court, vide its judgment reported in (1999) 5 SCC 253, confirming the conviction of all the accused persons except one and modifying the sentence in respect of some of the accused persons. Four accused persons have filed Review Petitions before the Honourable Supreme Court and they were also disposed of on 13.7.1999, by confirming their conviction. Thus, all the above named seven persons, along with other accused persons, are now serving their sentences, having been found guilty of various charges, after following the due process of law.
4. In these circumstances, this petition has been filed by the petitioner, who is said to be a socially conscious person and was also a member of the Congress and continuing in the same even now praying to direct the respondents to produce the bodies of (1) Nalini, (2) Santhan, (3) Murugan, (4) Shankar, (5) Vijeyandran, (6) Ruban and (7) Arivu and release them. Except saying that he is a 'socially conscious person', nothing has been mentioned as to in what way he is interested or related to the above said seven persons, so as to file and maintain this habeas corpus petition. When we expressed our opinion that this petition is liable to be rejected as not maintainable, since the above said seven persons are serving their sentences as convict prisoners imposed by the Honourable Apex Court, having been found guilty of various charges, which was confirmed till the Supreme Court, the learned counsel appearing for the petitioner has insisted that the case be heard since he want to make his submissions and argued this matter at length, inviting our detailed order in this matter.
5. In his long affidavit, the petitioner has showered his knowledge on many irrelevant aspects to the case, like the issue of Yasar Arafat which is quite unnecessary for the matter. Further, he tried to give a picture that LTTE has not played any role in the assassination of Sri Rajiv Gandhi, when the role of LTTE and its top brass leaders in the assassination of Sri Rajiv Gandhi was proved on an appreciated investigation conducted by SIT of CBI and they are now the absconding accused in the case, against whom the case is split-up and pending trial. The petitioner has also shed venom on his political opponent Mr.Subramaniaswamy, the President of the Janata Party, who was not impleaded as a party to these proceedings so as to have an opportunity for him to rebut the allegations made against him.
6. We extract hereunder the various allegations made by the petitioner in his affidavit against Mr.Subramaniasamy:
"2. I submit that I was closely associated with Subramaniasamy the Janata Party leader. However after the assassination of former Prime Minister Rajiv Gandhi I became suspicious about whatever Subramaniasamy said and did. I started raising doubts about his involvement in the said murder and had been writing and giving speeches and interview."
"5.... The assassination took place at 10.20 p.m at Sriperumbadur near Chennai. However, immediately after assassination even before any investigation the Central Government circulated the news that it was the LTTE which had carried out the assassination. I was the one who heard the news from Delhi from Dr.Subramaniasamy when the rest of the world did not know and the persons who were there at the bomb site did not know."
"7.... I submit that the whole country was shocked by the assassination. Every citizen felt he had lost someone dear. The Government of India instantly took steps to appoint the judicial commission under the appropriate act. Finally the Justice Milap Chand Jain had given an interim report followed by the final report comprising of nearly nine volumes. In the final report he directed further CBI probe against several accused and in particular as against Chandrasami a notorious arms dealer and Subramanian Swamy etc. The order was passed on 5th August, 1998. I also appeared before the Commission and deposed. I had also been circulating copies of the letter written by Dr.Subramaniasamy and later purchased back by him in bulk. The following lines are found at the end of the preface to the book written by Swamy titled as 'Raji Bloody Murder (Unanswered Questions and the questions that were not asked)' dated 23 March 2001. "Although the murders have been punished the aides of the murder happen to be his relatives and political heirs, and inheritors of his property and that they are going scot- free."
7. Though such serious allegations are made against the said Subramaniaswamy, he has not been impleaded as a party to these proceedings to give an opportunity for him to explain them. Courts are not meant for settling the personal scores under the garb of invented litigations and this attitude exhibited on the part of the petitioner needs to be deprecated.
8. Reverting back to the question of maintainability, first of all, all the above named seven persons are admittedly the convict prisoners, serving sentence imposed by the Honourable Apex Court, since being the accused in Sri Rajiv Gandhis assassination case. The illegal attempt made on the part of the petitioner, to call them as detenus and seeking their release has to be condemned and viewed seriously.
9. When a specific question regarding the locus standi of the petitioner, to file this petition has been raised, the learned counsel for the petitioner would argue that the powers of the Court in matters of detention are very wide and anybody, who has a concern for the detenu, can file a Habeas Corpus Petition. Much has been argued and emphasised on the part of the petitioner that in the matters of Habeas Corpus, strict rules of pleading should not be followed and that such Habeas Corpus petition can be filed by anybody and therefore, this Habeas Corpus Petition filed by the petitioner, a social conscious person, is very well maintainable.
10. In support of his arguments, the learned counsel for the petitioner has relied on a Three Judge Bench judgment of the Honourable Apex Court delivered in SUNIL BATRA (II) vs. DELHI ADMINISTRATION [(1980) 3 SCC 488], in which case a letter written to a Supreme Court Judge by a prisoner in Tihar Jail, Delhi complaining ill-treatment meted out to a co-prisoner, was treated as a Habeas Corpus Petition.
11. The other judgment relied on by the learned counsel for the petitioner is another Three Judge Bench judgment of the Honourable Apex Court delivered in BANDHUA MUKTI MORCHA vs. UNION OF INDIA AND OTHERS [(1984) 3 SCC 161], wherein a public interest litigation filed under Article 32 by a public spirited organisation on behalf of persons belonging to socially and economically weaker section complaining violation of their human rights on being forced to serve as bonded labourers was held to be maintainable.
12. Both the above judgments arose under different circumstances. The first case was initiated based on a letter written by a co-prisoner regarding the ill-treatment meted out to a prisoner, which has been treated as a habeas corpus petition. But, in the case on hand, the above named seven persons are serving their sentence, imposed by the Honourable Apex Court, as convict prisoners and further more, the very verdict of the Honourable Apex Court, finding them guilty of the charges framed against them, is sought to be branded as non-est in law by the petitioner, who has no authenticity to file this petition, that too questioning the judgment of the Honourable Apex Court, which is binding on all Courts in India under Article 141 of the Constitution. The law declared by the Supreme Court is the law of the land and the general principle of law laid down by the Supreme Court is applicable to every person including those who were not parties to that order. Therefore, the first judgment cited above has no application to the facts of the case on h and.
13. The second case relied upon by the learned counsel for the petitioner is regarding the release of the bonded labourers at the instance of a private organisation, which is not the case on hand. The petitioner is attempting to create a picture before us as if he is a Messiah of Masses and fighting for the cause of others, ignoring the fact that the persons, whose 'release' he is seeking for in this not maintainable petition, are the accused persons, whose guilt has been proved beyond all reasonable doubts upto the level of the Honourable Supreme Court and such a not maintainable petition could not be equated with a public interest litigation. Therefore, the second judgment cited above by the learned counsel for the petitioner also do not apply to the facts of the case on hand, which stands completely on a different footing.
14. But, we are aware that the learned counsel for the petitioner is trying to impress upon us that anybody interested can seek the release of a detenu. No doubt, by now it is a well settled proposition of law that any person interested or related to the detenu can file a Habeas Corpus Petition seeking the release of the detenu. But, in the case on hand, as has already been discussed supra, the above named seven persons are not the detenus, since they are not detained under any preventive detention laws, but are convict prisoners, serving their sentences, as awarded by the Honourable Apex Court, after exhausting all the legal remedies available to them. No provision of law permits a third party to file any petition for any relief on behalf of such accused persons, except the accused himself. Thus, the law has drawn a distinct line between the terms accused, detenu and moreover a convict prisoner and the malicious attempt on the part of the petitioner to erase this distinction, cannot be permitted. No provision of law or even a binding precedent has been brought to our notice by the petitioner to show that even the convict prisoners could seek for their release by filing a habeas corpus petition, except relying on a U.S.Supreme Court order in RICHARD EARL PILON vs. DONALD E.BORDENKIRCHER, reported in 441 US 1, wherein it has been held that 'State prisoner in federal habeas corpus proceeding challenging sufficiency of evidence for his manslaughter conviction is entitled to determination, on remand, of whether evidence supported finding of guilt beyond reasonable doubt.' The above said judgment of the Supreme Court of United States has got only a persuasive value and do not have any binding effect on us. The law, system and procedures being followed by the United States in such matters appears to be totally different from our law. As has been repeatedly observed by us throughout this order, the above said seven persons are not the detenus but the convict prisoners, whose guilt has been proved beyond all reasonable doubts after a full fledged trial and they have also exhausted all the legal remedies available to them, which cannot be called as a 'no evidence case', as has been mischievously tried to be called on the part of the petitioner. Even otherwise, the above judgment of the U.S. Supreme Court was rendered at the instance of the accused himself, but in the case on hand, the petitioner, who has no locus standi to file this case, has initiated this vexatious litigation. Therefore, viewing from any angle, the above judgment of the U.S. Supreme Court will not help the case of the petitioner.
15. At this juncture, it is apt to mention that when a practising Advocate, who is not a friend or relative of the detenu, has filed H.C.P., as a third party, seeking the release of her 'client' on the argument that she is also a socially conscious person, by the judgment in S.SENGKODI vs. STATE OF TAMIL NADU AND OTHERS [2009-2-L.W. 598 = 2009 CIJ 376 Madras], one of us (Elipe Dharma Rao, J.), speaking for the Bench, has held the said H.C.P. as not maintainable. The same analogy applies to the case on hand also, since admittedly, the petitioner is neither a friend nor a relative of the above said seven convict prisoners, but has filed this not maintainable petition with malicious intention of settling his personal scores with his political opponents. Therefore, we have no hesitation to hold that the petitioner has no locus standi to file this petition.
16. On a thorough analysis of the entire materials placed on record, we have no hesitation to hold that the petitioner has filed this fictitious litigation, without having any locus standi, aiming at short lived publicity, to settle his political and personal scores, when Parliament elections are fast approaching (The Parliament elections are scheduled to be held in Tamil Nadu on 13.5.2009) and not for any legal or valuable purpose. In these circumstances, the judgment of the Honourable Apex Court in DEEPAK BAJAJ vs. STATE OF MAHARASHTRA & ANOTHER (W.P.(Crl.) No.77 of 2008, dated 12.12.2008) wherein it has been held that non-supply of relevant documents to the detenu would vitiate the order of detention. This judgment has been cited on the part of the petitioner while arguing that the Jain Commission Report was not supplied to the above said seven persons. But, this judgment has no application to the facts of the case, since the above said seven persons are only convict prisoners, serving the sentence imposed on them by the Honourable Apex Court and not detenus, as has been illegally sought to be branded on the part of the petitioner.
17. On behalf of the petitioner, two judgments of the Supreme Court have been relied on, the first one in SHRI LALLUBHAI JOGIBHAI PATEL vs. UNION OF INDIA AND OTHERS [(1981) 2 SCC 427] and the second one in MOIDEEN KOYA vs. GOVERNMENT OF KERALA [(2004) 8 SCC 106] to emphasise the point that the bar of res judicata or principles analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting him at liberty. There cannot be any doubt that the principles of res judicata have no application in the criminal jurisprudence and a fresh habeas corpus petition would lie on fresh grounds. But, this principle has no application to the facts of the case on hand, since the above said seven persons are not the detenus, so as to maintain the Habeas Corpus Petition. As has been observed by us in the opening paragraph of this judgment, the entire facts of the case have been twisted to his convenience by the petitioner, as if the above said seven persons are detenus and are in illegal custody and filed this vexatious litigation, wasting the public time of this Court.
18. In para No.15 of his affidavit, the petitioner has submitted the following grounds:
a)The detenus are liable to be released for the very arrest since 1991 is grossly illegal and untenable.
b) The detenus are not guilty of the alleged offence of assassination and prosecution story of SIT is found to be conflicting with that of the report of Jain Commission.
c) The detenus be held in jail results in perpetuation of the false belief that the LTTE was behind the Assassination.
d)The detenus despite innocence have faced an illegal prosecution and an illegal punishment and an illegal detention of 18 years which cannot be allowed to happen even for a moment under the present circumstances.
19. In support of his contentions that the investigation conducted by the SIT was full of flaws from the very beginning, the petitioner has relied on an article titled India & the struggle for Tamil Eelam, who really killed Rajiv Gandhi, by Dr.Norman Baker published in the Illustrated Weekly of India, dated 22.8.1992. We are at a loss to understand as to in what way the opinions of individuals, alleging that the investigation conducted by the SIT was full of flaws from the very beginning, would help the case of the petitioner, when, upon conducting a full fledged trial with due opportunity for them, all these persons were found guilty of the charges framed against them and even the capital punishment of death imposed on some of the accused persons by the trial Court was modified to one of life imprisonment by the Honourable Apex Court. At this juncture, we would like to place on record the observations of the Honourable Apex Court in para No.639 of its judgment reported in (1999) 5 SCC 253, which read as follows:
We would also like to record our appreciation for the Special Investigation Team (SIT) constituted by the Central Bureau of Investigation to investigate the case. Under the stewardship of Mr.D.R.Karthikeyan, SIT did assiduous work and was able to solve the crime within a short time. Investigation was meticulous, loose ends tied to bring out a clear picture of conspiracy and the part played by each of the conspirators. Members of SIT performed the job with dedication and determination. They succeeded in their mission but their only regret perhaps was that they could not capture Sivarasan alive.
20. When such is the firm conclusion arrived at by the Honourable Apex Court, regarding the appreciable way in which the investigation was conducted by SIT and the culprits have been booked and brought before the Court, recording its patting for the Special Investigation Team constituted by the Central Bureau of Investigation, the attempt made on the part of the petitioner to brand the investigation conducted by the Special Investigation Team otherwise, seeking support from individual opinions published in various journals, which are not having any evidentiary value, cannot be appreciated.
21. Though, even as per the averments of the petition, some Enquiry Commissions are appointed by the Government, it seems they are to find out the other aspects of the case and not regarding the concluded aspect of the role played by these convict prisoners. As could be seen from the materials available on record, Justice Verma Commission of Inquiry was appointed with respect to the following matters:
2. a) Whether the assassination of Shri Rajiv Gandhi could have been averted and whether there were lapses or dereliction of duty in this regard on the part of any of the individuals responsible for his security;
b) the deficiencies, if any, in the security system and arrangements as prescribed or operated in practice which might have contributed to the assassination.
3. The Commission may also recommend corrective remedies and measures that need to be taken for the future with respect to the matters specified in clause (b) of paragraph 2 above.
22. The Justice Verma Commission of Inquiry submitted its report on 15.6.1992 which was placed along with the Action Taken Report before the Parliament on 23.12.1992.
23. Since the terms of reference of Justice Verma Commission of Inquiry did not include conspiracy aspect of the assassination of Shri Rajiv Gandhi, the Government of India appointed a second one-man judicial commission headed by the Honourable Mr.Justice M.C.Jain, Chief Justice of Delhi High Court (Retd.) on 23.8.1991 and the terms of reference of Justice Jain Commission of Inquiry are as follows:
a) the sequence of events leading to, and all the facts and circumstances, elating to the assassination of Shri Rajiv Gandhi at Sriperumpudur (other than the matters covered by the Terms of reference for the Commission of Inquiry headed by Shri Justice J.S.Verma).
b) Whether any person or persons or agencies were responsible for conceiving, preparing and planning the assassination and wherever there was any conspiracy in this behalf and if so, all its ramifications.
24. The said commission submitted its interim report on 28.8.1997 and Final report on 7.3.1998. The Honourable Supreme Court delivered its judgment on 11.5.1999 i.e. well after the final report submitted by Jain Commission. In this backdrop, now an argument has been advanced on the part of the petitioner that the present situation is that the investigation, trial and sentence notwithstanding the continuation of the Jain Commission would render the whole thing null and void and all the sufferings meted out to the accused persons should be redressed and in any case, they have suffered the longest punishment in the Indian Legal history and the only course open is to forthwith release them.
25. As has been pointed out supra, Justice Jain's Commission had submitted its interim report on 28.8.1997 and its Final report on 7.3.1998. The Honourable Supreme Court delivered its judgment on 11.5.1999 i.e. well after the final report submitted by Jain Commission. Therefore, there was ample time and opportunity for the petitioner and even the accused persons to challenge the same before the Honourable Apex Court, which has not been done by anybody. Even in the petition, the petitioner has submitted that he has participated in the enquiry proceedings and he is well aware of the same. In such event, if at all aggrieved, nothing has prevented him from challenging the said Enquiry Report. But, for the reasons best known to him and not revealed anywhere, the petitioner has not chosen to challenge the said Enquiry report, but now, in this not maintainable petition, he has repeatedly placed reliance on the observations of the said Committee, which is out of scope of our consideration. Some of the accused persons have also filed review petitions before the Honourable Apex Court, wherein also they have not brought these aspects for the consideration of the Honourable Apex Court. When we questioned the respondents as to why the report of Justice Jain was not placed before the Honourable Supreme Court, the Superintendent of Police, CBI, has filed an additional counter affidavit submitting that since the Honourable Apex Court heard the appeals filed by the accused against the conviction and sentence passed by the Designated Court under TADA, Chennai as an appellate Court, the question of submitting the report of Justice Jain Commission of Inquiry before the Honourable Supreme Court did not arise and further, the Honourable Supreme Court never directed the Government of India or the Special Investigation Team in CBI to produce the Justice Jain Commission of Inquiry Report.
26. It was further submitted that the subject matter before the Honourable Supreme Court was to decide whether the conviction and sentence imposed on the appellants was sustainable in law and the report of Justice Jain Commission of Inquiry was not impugned before the Supreme Court and the Government of India, which accepted the report of Justice Jain Commission of Inquiry, directed the CBI to conduct further investigation and after getting due permission from the Designated Court No.1, Chennai, further investigation is being conducted. We are fully convinced with the said legally sustainable reasoning offered on the part of the respondents. When no step has been taken on the part of the accused themselves to question the Justice Jain Commission Report and when there was no necessity or occasion for the respondents to file the said report before the Honourable Apex Court, the petitioner cannot be permitted to rake-up such a plea before us.
27. Further, when we have posed a question as to why there is such a long delay of ten years in filing this petition, the learned counsel for the petitioner has replied that the petitioner is otherwise busy and was not in a position to concentrate on this case, which resulted in delay. As has already been pointed out supra, the petitioner himself has submitted in para No.7 of his affidavit that he has participated in the enquiry conducted by Justice Jain and had also deposed. Therefore, if at all he felt any need to challenge the report submitted by the said Committee, he ought to have done it, which he did not do, for the reasons best known to him and submitting some arguments based on the report of the said Committee, which cannot be permitted.
28. The learned counsel for the petitioner would further submit that delay should not hamper the substantial cause of the litigants. In support of his contentions, the learned counsel for the petitioner would press into service a Constitutional Bench judgment of the Honourable Apex Court delivered in P.N.ESWARA IYER AND OTHERS vs. REGISTRAR, SUPREME COURT OF INDIA [(1980) 4 SCC 680], wherein the Honourable Apex Court has held that:
"A technical objection should not throw out a suitor from the plea of justice. After all, the courts belong to the people, as Jerome Frank once said. And litigants are legal patients suffering from injustices seeking healing for their wounds."
29. There cannot be any doubt or dispute regarding the above proposition laid down by the Honourable Apex Court. But, the said case has arisen at the instance of the parties themselves regarding their civil rights, while dealing with a review. It is not the case on hand. The accused are undergoing the sentences imposed on them after conducting a full-fledged trial in the case registered against them and they have also exhausted all the legal remedies open to them. But, they are not the parties before us and the petitioner, who is in no way connected with the whole affair has invented this mischievous and malicious litigation to settle his personal scores with his political opponents when the Parliament elections are fast approaching (the Parliament election for Tamil Nadu is scheduled to be held on 13.4.2009) and therefore, the above proposition of law laid down by the Honourable Apex Court in the above case will not, in any way, help the case of the petitioner.
30. From the records placed before us, it is seen that consequent to the deliberations on the Final Report of the Jain Commission and the Memorandum of Action Taken thereon in both the Houses of Parliament, the Government of India, Ministry of Personnel, Public Grievances & Pension, has issued Office Memorandum No.201/4/198-AVD.II, dated 2.12.1998, constituting the Multi Disciplinary Monitoring Agency (MDMA) in the Central Bureau of Investigation to look into the larger conspiracy aspect. Thereupon, the said MDMA has approached the jurisdictional Designated Court under TADA, Chennai and on 20.5.1999 an application under Section 173(8) Cr.P.C. was filed seeking permission to conduct further investigation in the light of the recommendations made by the Commission of Inquiry of the Honourable Mr.Justice M.C.Jain, which was granted by the said Court by its order dated 7.6.1999 in Crl.M.P.No.1/1999 in C.C.No.11/1992, which is a split up case regarding the absconding accused. It is seen from the record that so far 42 status reports are filed by MDMA before the Designated Court No.1 under TADA Act. When such is the situation that further investigation regarding the other aspects of the case, but not with regard to the already concluded aspect of the case i.e. regarding the proved guilt of the accused persons in the case, it is too early to comment the further investigation going to be conducted, as has been attempted on the part of the petitioner.
31. When such is the clear picture regarding the different and distinct purposes for which various Enquiry Commissions have been appointed, the petitioner has attempted to interpret it in a different manner, to suit his convenience, as if in the subsequent reports/investigations, clean chits have been given to the above said convict prisoners, with no material to support the same. Even presuming that the said argument advanced on the part of the petitioner is true, without conceding, all the doors are closed for the above said convict prisoners, since they have exhausted all the legal remedies available to them and their conviction has been upheld by the Honourable Supreme Court.
32. Leave alone the aspect that any Commissions report is only recommendatory and not having the effect of any binding nature on the Government, nowhere any clean chit has been given to these convict prisoners, who are found guilty of various charges by due process of law, after a full-fledged trial. Therefore, viewing from any angle, this Habeas Corpus Petition is liable only to be dismissed, since being invented to achieve and settle personal scores, by way of this petition, with no legal purpose to be achieved.
33. Before concluding we want to place on record the fact that this Bench has heard the arguments of the learned counsel for the petitioner on 22.4.2009 and at the request of the learned Special Public Prosecutor appearing for the Central Bureau of Investigation, to file additional counter for a query raised by us as why the report of the Justice Jain Commission was not submitted before the Honourable Apex Court, the case was adjourned to 24.4.2009. Due to administrative reasons, on 24.4.2009, a different Division Bench was constituted (Justice Elipe Dharma Rao and Justice R.Subbiah) and in the morning session, when the case was taken up for consideration, an additional counter has been filed by the Central Bureau of Investigation and to file reply to the above counter affidavit and to advance arguments on the aspects mentioned in the additional counter filed by the CBI, at the request of the learned counsel for the petitioner the case was passed-over after lunch. But, at 2.30 p.m., the learned counsel for the petitioner has neither filed any reply nor advanced any arguments but sought for time till next day. When we have already considered his request to pass over the matter till 2.30 p.m., so as to facilitate him to file a reply and advance arguments on the aspects mentioned in the additional counter affidavit filed by the CBI and accordingly taken up the matter again at 2.30 p.m., the learned counsel for the petitioner has simply sought for adjournment to next day. Therefore, since no purpose is going to be served by adjourning the matter by heeding to the request of the learned counsel for the petitioner, at whose instance only the case was passed over to 2.30 p.m. and who has failed to file any reply and has also failed to advance his arguments, the matter was reserved for orders on 24.4.2009 (Friday) by the said Bench (Justice Elipe Dharma Rao and Justice R.Subbiah). But, on 27.4.2009 (Monday), a letter addressed by the learned counsel for the petitioner to the Honourable Chief Justice was placed before us by the Registry, the contents of which are extracted hereunder:
"The above Writ Petition was head on alternate days by the Bench comprising of His Lordship Mr.Justice Elipe Dharma Rao and Mr.Justice C.T.Selvam since last week. C.B.I. was directed to file additional counter affidavit as to why they have not placed before the Supreme Court the Jain Commission report naming 23 other accused, while it was hearing the case regarding confirming the sentences of the accused.
To-day when the case was called I found the composition of the Bench was different viz. Mr.Justice R.Subbiah was accompanying in the place of Mr.Justice C.T.Selvam. It was expected that on receipt of the counter from the C.B.I., the bench would post the case for my submissions to Monday before the regular bench. But the bench ordered, orders reserved. I submitted the (sic.that) I need to make my submission on the counter filed by the C.B.I. and produce the authorities. I was given time till 2.30 p.m. Today. I wondered as to how this bench could hear partly when the main case was already substantially heard by another Bench. I offered to file my reply after lunch and thought of praying for time till Monday. But my pre occupations in other Courts delayed me and hence could not draft the reply. Hence went to seek adjournment to Monday and also mentioned the different Bench situation.
The learned judge reserved the judgment and declined to give time, which is novel and unprecedented at all.
Therefore as the Master of the Rooster your Lordship may direct the listing of this case before the same Bench for denovo hearing or else list it before another Bench for immediate hearing so that justice is seemingly done."
34. As has been submitted by the learned counsel himself in his above extracted letter, he did not file any reply and has also not advanced arguments at 2.30 p.m. before the Bench comprising of myself (Justice Elipe Dharma Rao) and Justice R.Subbiah at 2.30 p.m., as scheduled. But, thereafter he has dropped this letter with the Registry as if great injustice has been caused in re-constituting the Bench. His plea could have been an appreciable one if the matter is listed before completely a different Bench, but it is not so. Myself (Justice Elipe Dharma Rao) is heading both the Benches and it is very well within the bounds of law to hear the matter and there is no need to heed to the request of the learned counsel for the petitioner. However, in order to avoid any precipitation and in order to give the opportunity for the learned counsel for the petitioner to advance his arguments, so as to curtail his future submission that there was no proper opportunity for him (though it is not so), we have directed the Registry to re-constitute this Bench, for further hearing. Accordingly, this Bench is re-constituted on 28.4.2009 and the matter has been taken up for further hearing and after hearing both parties, the matter was again reserved for orders.
35. The learned counsel for the petitioner has re-iterated the arguments already advanced by him and has pressed into service a Three Judge Bench judgment of the Honourable Apex Court in HARBANS SINGH vs. STATE OF UTTAR PRADESH AND OTHERS [(1982) 2 SCC 101]. That was a case wherein when three accused persons were tried for one and the same occurrence, different punishments were awarded to them by different Benches, while for one accused, the capital punishment was ordered and executed, for the other accused, it was modified to one of life imprisonment and again for another accused, the capital punishment was confirmed. In such circumstances, the Honourable Apex Court has held that 'benefit of commutation to life imprisonment given to one must be extended to remaining co-accused and jail authorities were directed to verify consistency in award of death sentence between co-accused before carrying out any death sentence.' This case has no relevance to the case on hand since the sentence of capital punishment imposed on all the above said seven persons by the trial Court was modified to one of life imprisonment by the appellate Court i.e. the Honourable Apex Court and there is no inconsistency of decision between different Benches. Further more, the said case arose on a petition filed by the accused himself and not by any third party, as is the case in hand. Therefore, this judgment of the Honourable Apex Court has no application to the facts of the case on hand.
36. The petitioner has filed this petition aiming at a short-lived publicity and with a malicious intention of settling personal scores with political opponents without even impleading them as parties, when the Parliament elections are scheduled to be held in the State on 13.5.2009, further twisting the facts and wasting the valuable public time of this Court. He has not approached this Court with clean hands, but only with malicious intention of achieving personal and political scores when the election schedules are declared and therefore, to serve as an eye-opener for such mischievous clients who file petitions before the Courts only for publicity purpose, with no fruitful purpose to be achieved or served, this petition is liable to be dismissed, mulcting the petitioner with costs. The petitioner is directed to pay a sum of Rs.1 lakh (Rupees One Lakh) only to the Chief Justices Relief Fund within four weeks from today.
37. In fine, our conclusions could be briefed as follows:
(i)All the above said seven persons are only 'convict prisoners' and not the 'detenus', as has been tried to be branded on the part of the petitioner.
(ii)All the above said seven persons were awarded punishments, only after full fledged trials and by affording all reasonable opportunities to them and they are now serving the sentences as has been imposed by the Honourable Apex Court in the Appeals and Review Petitions filed by the accused persons.
(iii)The petitioner has no locus standi to file this Habeas Corpus Petition and this petition is not maintainable and liable to be dismissed.
(iv)The petitioner has filed this petition with malicious intention, aiming at short-lived publicity and to settle his personal scores with his political opponents with no legal grounds to be urged.
(v) Different Committees have been appointed by the Government of India for different purposes, not with respect to the concluded aspect of the guilt of the above said seven persons and nowhere any clean chit has been given to the above said seven persons.
(vi)All the doors are closed for the above said seven convict prisoners, since they have exhausted all their legal remedies and their conviction has already been confirmed by the Honourable Apex Court, while dismissing their appeals and review applications.
(vii)The petitioner, who has no locus standi to file this petition, has not approached this Court with clean hands and he has filed this petition only to settle his personal and political scores, with an intention to make use of this Court as a tool in achieving his wicked desires, which can never be permitted to occur. Therefore, we are firm that to curtail such bad practices and playing publicity tricks on the Courts to settle personal and political scores by such fraudulent litigants, this petition has to be dismissed with costs.
38. For all the above reasons and discussions, this Habeas Corpus Petition is dismissed as not maintainable and devoid of any consideration or merit, mulcting the petitioner with a cost of Rs.1 lakh (Rupees One Lakh Only). The petitioner is directed to pay a sum of Rs.1 lakh (Rupees One Lakh Only) to the Chief Justices Relief Fund within four weeks from today, in default of the petitioner, the Registrar General is directed to initiate all necessary legal proceedings to get the amount from the petitioner, under the provisions of the Revenue Recovery Act.
In the above circumstances, the question of granting interim bail to the above said seven convict prisoners does not arise. Accordingly, M.P.No.1 of 2009 is rejected.
Rao To
1.The Inspector, Special Investigation team, Central Bureau of Investigation, New Delhi.
2.The Secretary to the Government of Tamilnadu, Ministry of Home Department, Fort St.George, Chennai-600009.
3.The Registrar General, High Court of Madras, Chennai