Madras High Court
Selvi.J.Jayalalithaa vs Central Bureau Of Investigation on 30 September, 2011
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA Crl.O.P.No.19152 of 2010 and Crl.R.C.Nos.609, 636 and 667 of 2011 & M.P.No.1 of 2010 in Crl.O.P.No.19152 of 2010 Selvi.J.Jayalalithaa .. Petitioner in Crl.O.P.No.19152 of 2010 & Crl.R.C.No.609/2011 /Accused No.1 K.A.Sengottaiyan .. Petitioner in Crl.R.C.No.636/2011 /Accused No.2 Azhagu Thirunavukkarasu .. Petitioner in Crl.R.C.No.667/2011 /Accused No.3 Vs. Central Bureau of Investigation, represented by its SP/CBI/CBI, Chennai. .. Respondent/Complainant * * * PRAYER: Criminal Original Petition filed under 482 of the Code of Criminal Procedure praying to call for the entire records in C.C.No.26 of 2006 on the file of the learned VIII additional Sessions Judge / Principal Judge for CBI Cases, Chennai, to quash the same on the ground of inordinate and unexplained delay in completing the investigation. PRAYERS : Criminal Revision Petitions filed under Sections 397 r/w 401 of the Code of Criminal Procedure praying to call for the records in Crl.M.P.No.760, 723 and 887 of 2009 in C.C.No.26 of 2006 on the file of the XIII Additional Special Court for CBI Cases, City Civil Court, Chennai, respectively and set aside the order dated 12.04.2011 made therein and discharge the petitioners/A1, A2 and A3 from the case in C.C.No.26 of 2006 on the file of the XIII Additional Special Court for CBI Cases, City Civil Court, Chennai. For Petitioner in Crl.O.P. : Mr.B.Kumar, Senior Counsel No.19152/2010 and Crl. for M/s.R.Loganathan R.C.No.609/2011 R.Rajarathinam For Petitioner in Crl.R.C. : Mr.S.Ashok Kumar, Senior Counsel No.636/2011 for M/s.G.K.Bharathi & P.R.Balasubramaniam For Petitioner in Crl.R.C. : Mr.V.Gopinath, Senior Counsel No.667/2011 for M/s.K.Selvarangan For Respondents in all : Mr.N.Chandrasekaran, the petitions Special Public Prosecutor for CBI C O M M O N O R D E R
There are three accused in this case. As per the charge sheet, the petitioner in Crl.R.C.No.609 of 2011 and Crl.O.P.No.19152 of 2010 has been arrayed as A1 and the petitioners in Crl.R.C.Nos.636 of 2011 and 667 of 2011 have been arrayed as A2 and A3 respectively. A1 has been implicated for the offence under Section 11 and A2 and A3 have been implicated for the offence under Section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act).
1A. The petitioners preferred discharge petitions under Section 239 of the Code of Criminal Procedure (hereinafter referred to as the Code) and as against the dismissal of their discharge petitions, they have preferred the above revisions before this Court. As far as A1 is concerned, apart from preferring discharge petition before the trial court, she has also preferred a petition before this Court under Section 482 of the Code in Crl.O.P.No.19152 of 2010 seeking for the relief of quashing the proceedings mainly on the ground of delay in registering the First Information Report and filing the charge sheet on the basis of the principle laid down by the Hon'ble Apex Court in Abdul Rehman Antulay and others V. R.S.Nayak reported in 1992 (1) SCC 225 to the effect that an objection based on denial of right to speedy trial and for relief on that account should first be addressed to the High Court.
2.0. The factual matrix of the case right from registering the First Information Report culminating into filing of the final report in this case is to be stated hereunder :
2.1. The Deputy Superintendent of Police, Crime Branch C.I.D., registered the FIR in Crime No.15 of 1996 for the offence under Sections 13(2) r/w 13(1)(e) of the Act. The said FIR was registered on 24.06.1996 in respect of the transactions alleged to have taken place between 1990 and 1993 on the basis of the D.O. Letter written by the Director General of Income Tax (Investigation), Chennai. The said letter was incorporated in the above said FIR which reveals that A1 has disclosed in her income tax returns regarding the gifts including DDs and cash given to her on the occasion of her birthday totalling to an amount of Rs.2,09,50,012/- and alleging that the genuineness of the gifts have not been proved and hence, the department has added the said amounts as income in her hands. On receipt of the said letter from the income tax department, without making any further specific allegation, the above said FIR was registered for the offences under Sections 13(2) r/w 13(1)(e) of the Act.
2.2. Thereafter, pursuant to the notification of Government of Tamil Nadu dated 03.08.1996, Government of India had issued notification dated 07.08.1996 entrusting the investigation of the case to the Central Bureau of Investigation in respect of the FIR registered in Crime No.15 of 1996 by the C.B. C.I.D., Chennai, under Sections 13(2) r/w 13(1)(e) of the Act. Accordingly, the FIR was registered by the C.B.I. as R.C.No.50(A)/96 on 02.10.1996 for the above said offences under the Act. It is claimed by the CBI that the Vigilance and Anti-Corruption Department, Tamil Nadu, was already investigating a separate case against A1 for the alleged offences under Sections 13(2) r/w 13(1)(e) of the Act in Crime No.13 of 1996, and as such, they have not investigated for the said offences. On the other hand, they have altered the offences under Sections 13(2) r/w 13(1)(d) of the Act and conducted investigation on the basis of the acceptance of Demand Drafts, including a DD of US $ 3 lakhs said to have been sent by one Dr.K.T.B.Menon, by A1 during the year 1992 while she was the Chief Minister. As the said Menon died, it is stated in the charge sheet that there was no sufficient material to establish a case under Section 13(2) r/w 13(1)(d) of the Act.
2.3. The charge sheet in this case was filed on 31.07.2006. It is stated in the charge sheet that thereafter the investigation was conducted regarding the alleged receipt of other 89 DDs and cash of Rs.15,00,000/-. It is further stated in the charge sheet that out of 89 DDs purchased in the names of 57 persons, 12 persons were found to be fictitious, 12 persons in whose names DDs were purchased denied the purchase of DDs and 33 persons confirmed the purchase of DDs and presenting to A1 as birthday gifts. Out of 33 persons, 21 persons, who had gifted DDs were MLAs, Ministers or party leaders appointed as Chairman of Government Corporations and other Government bodies and they were concerned in official business transaction or to be transacted with A1 in her capacity as the Chief Minister and thereby A1 accepted the DDs or valuable things from 21 persons who had official connections with her without consideration and thereby committed the offence under Section 11 of the Act.
2.4. The allegation as per the charge sheet against A2 and A3 is to the effect that both of them were Ministers in the Cabinet of A1 during the relevant period and A2 provided an amount of Rs.22,53,700/- and A3 provided an amount of Rs.25,50,000/- for the purchase of DDs in favour of A1 and they have presented the same to A1 on her birthday in the year 1992 and thereby abetted her to accept the valuable things, i.e., DDs, without consideration and accordingly, A2 and A3 said to have committed an offence punishable under Section 12 of the Act.
3. Mr.B.Kumar, learned Senior Counsel appearing for A1, put forward two fold contentions, one on merits and another on inordinate and unexplained delay in registering the FIR as well as completing the investigation and filing the final report.
4. Regarding the merits, the learned Senior Counsel for A1 contended that the final report is confined in respect of presentation of DDs only by 21 persons out of whom, A2 and A3 are also included and as such, from 19 persons statements were recorded by the investigating officer under Section 161 of the Code and without exception all the 19 persons stated that A1 is the General Secretary of the political party, namely, All India Anna Dravida Munnetra Kazhagam (for short "AIADMK"), in which, they are the members and they have collected money from party sympathizers and workers, who have contributed Rs.5/- or Rs.10/- etc. and after mobilizing the funds they have purchased the DDs and given to A1 as birthday gift and as such, the said trivial amounts collected from party loyalties would attract the provisions under Section 20(3) of the Act and as such, even on the basis of materials available on record presumption cannot be raised under Section 20 (1) of the Act and thereby the ingredients of the offence under Section 11 of the Act are not attracted. It is submitted that A1 during the relevant point of time had dual capacity, viz., as a Chief Minister and as a General Secretary of the party and the persons or numerous persons giving valuable thing as birthday gift out of love and affection to A1 only as a party leader would not attract the ingredients of Section 11 of the Act.
5.1. The learned Senior Counsel would contend that 19 persons, in view of the above said submissions, have not contributed their own funds and they have mobilized the contributions from the party loyalties for presenting the same to their leader and as such they have acted as a conduit between the larger number of party sympathizers and loyalties and their leader viz., the petitioner/A1. It is contended that even assuming that the said 19 persons having business transaction or to be transacted with the Government as it is alleged that they have been selected or appointed to one post or the other in the Government, has no relevance, as they have not paid any money for taking DDs and on the other hand, money for taking the said DDs was mobilised only from the contributions made by the workers, sympathisers and admirers of A1 to present the same to their leader (A1) as birthday gift. It is contended that in respect of other persons excluding 19 persons, as stated above, who have given the DDs are concerned ex-facie Section 11 of the Act, even according to the final report, is not attracted as other persons have not had any dealing with the Government at any time either before or after giving the DD and as such, even as per the final report, Section 11 of the Act is not attracted. The learned Senior Counsel would contend that in respect of a foreign draft for US $ 3 lakhs, the final report itself concludes that no offence is made out under the Act. He would further contend that A1 disclosed the DDs received by her and accounted for in the income tax proceedings and he placed reliance on the statements recorded under Section 161 of the Code from L.W.117/the Deputy Commissioner of Income Tax, Chennai, in which, it is stated that 29 persons filed affidavits stating that the amounts were collected from the party workers. Therefore, it is submitted that the income tax authorities have held that the receipt of DDs cannot be considered as a gift, but would be treated as income in the hands of the assesse and as such, the conclusion of the income tax authorities themselves will show that there is no contravention of Section 11 of the Act.
5.2. The second limb of the contention of the learned Senior Counsel for the petitioner (A1) is on the ground of delay. It is contended that the occurrence took place in the year 1992 and the FIR was registered on 24.06.1996 by the C.B. C.I.D., and thereafter, C.B.I. registered the FIR on 02.10.1996 and the final report was filed on 31.07.2006 and as such, 10 years delay in completing the investigation and filing the final report and there is a total delay of 14 years and 5 months from the date of incident and there is absolutely no proper explanation from the prosecution for such an inordinate delay. It is contended that the petitioner cannot be held to be liable for such an inordinate delay in completing the investigation and filing the final report. The inordinate delay of 10 years in completing the investigation would certainly infringe the right to speedy trial and would amount to violation of Article 21 of the Constitution of India. It is pointed out by the learned Senior Counsel that as per the counter, the final report was finalized on 21.12.2001 itself recommending to prosecute A1 under Section 11 of the Act and A2 and A3 under Section 12 of the Act, but the final report was filed only on 31.07.2006 and there is no explanation for the delay of five years in filing the final report after taking the decision. The only explanation as per the counter is that time had been spent in consulting Attorney General whether or not sanction is required to prosecute A1 and if so, who should grant sanction. It is submitted that such explanation is wholly unacceptable for the simple reason that A1 was the Chief Minister only upto May 1996 and thereafter, she was only an M.L.A. and even at the time of filing the final report and as such, there is no need for sanction. In support of such contention, learned Senior Counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court in P.V.Narasimha Rao V. State (CBI/SPE) reported in 1998 (4) SCC 626. As per the said decision, in a case of M.L.A., the Speaker of the Legislative Assembly is competent to give sanction and in this case, the sanction was ultimately obtained from the Speaker of the Tamil Nadu Legislative Assembly. Therefore, it is submitted that the inordinate delay in completing the investigation is not at all properly explained by the prosecution and as such, the petitioner/A1's constitutional right recognised under Article 21 of the Constitution stands violated and thereby the proceedings pending against the petitioner is liable to be quashed and consequently, the impugned order passed by the learned trial Judge dismissing the discharge petition is liable to be set aside.
5.3. Mr.B.Kumar, learned Senior Counsel for the petitioner, in respect of the above contentions would place reliance on the following decisions of the :
(1)A.R.Antulay & Others V. R.S.Nayak & another reported in AIR 1992 (1) SCC 225 ;
(2)R.Ramachandrao Rao V. State of Karnataka reported in 2002 (4) SCC 578 ;
(3)Madheswari Singh & another Vs. State of Bihar reported in AIR 1986 Pata 324 ;
(4)Biswanathprasad Singh Vs. State of Bihar reported in 1994 (Supp) (3) SCC 97 ;
(5)Ramanand Chaudary V. State of Bihar reported in 2002 (1) SCC 149 ;
(6)Pankaj Kumar V. State of Maharashtra and others reported in AIR 2008 SC 3077 ;
(7)Vakil Prasad Singh Vs. State of Bihar reported in AIR 2009 SC 1822 ; and (8)K.Krishnasingh Vs. State reported in 2007 (1) MWN (Cr.) 60 ;
6. Mr.S.Ashok Kumar, learned Senior Counsel for the petitioner/A2 in Crl.R.C.No.636 of 2011 submitted that he is adopting the arguments of Mr.B.Kumar, learned Senior Counsel for A1 in respect of delay in completing the investigation and filing the final report and thereby infringing the fundamental right of the accused to speedy trial guaranteed under Article 21 of the Constitution of India. It is further submitted that as per the charge sheet, the prosecution has come forward with two versions, one version is on the basis of the statements given by the income tax officers particularly L.W.117 to the effect that DDs presented to A1 cannot be considered as gifts, but would be treated as income in the hands of the assessee and another version is on the basis of the statements recorded under Section 161 of the Code to the effect that DDs were presented to A1 by the persons who are having business transaction or to be transacted with the Government and thereby A1 committed the offence under Section 11 of the Act and A2 and A3 under Section 12 of the Act. Therefore, it is contended that the prosecution itself has not come forward with a clear and consistent version even as per the final report filed in this case. It is further contended that there is absolutely no material available on record to show that A2 had directly presented the DDs to A1. It is contended that even assuming that A2 had given the DD in person to A1, A2 had already assumed office as a Minster and as such, he is not going to gain anything and therefore, it cannot be stated that A2 abetted A1 to accept the valuable things i.e., DDs without consideration in order to attract the ingredients of the provisions of Section 12 of the Act. The learned Senior Counsel would submit that all these important factors have been overlooked by the learned trial Judge while passing the impugned order of rejecting the discharge petition and as such, the impugned order is liable to be set aside.
7. Mr.V.Gopinath, learned Senior Counsel for A3 also adopted the arguments advanced by the learned Senior Counsel for A1 in respect of delay in completing the investigation and thereby infringing the fundamental right of speedy trial enshrined under Article 21 of the Constitution. It is further contended that four witnesses have been examined during the course of investigation, viz., L.Ws.24, 38, 39 and 42 implicating A3. It is the prosecution version that the amount was given to them by L.W.44, who is the brother of A3 and there is no allegation of A3 giving money to them for taking DDs. L.W.44, on the other hand, in his statement recorded under Section 161 Cr.P.C. that he had no political dealing with his brother A3 and he had never carried any DD from anyone either to A3 or to anyone at any point of time. Therefore, there is absolutely no material available on record as to how the DDs have been taken on behalf of A3 and A3 was the Minister at the time of the alleged transaction. It is pointed out that the DD was taken in the personal name of A1 and not as the Chief Minister and as such, the DDs were not given to A1 as the Chief Minister and only as the leader of the party for giving her as birthday gift and as such, the ingredients of the offence under Section 12 of the Act are not attracted against A3.
8. Per contra, Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI, would contend that a prima facie case is made out to implicate the petitioners, namely, A1 for the offence under Section 11 and A2 and A3 for the offence under Section 12 of the Act. It is contended that there are enough materials available on record through the statements recorded from the witnesses under Section 161 of the Code to attract the ingredients of the offence under Sections 11 and 12 of the Act and the probative value of such statements recorded under Section 161 of the Code cannot be gone into at the stage of discharge petition or quashing the proceedings. It is contended that detailed counters are also filed in this matter highlighting the materials available on record implicating each one of the petitioners. He would also place reliance on the provision under Section 20 of the Act and contended that in view of the materials available on record attracting the provisions under Sections 11 and 12 of the Act, the presumption contemplated under Section 20 of the Act is necessarily to be drawn against the petitioners/A1 to A3. The learned Special Public Prosecutor for CBI would submit that though there is a delay on the part of the respondent in conducting investigation, no malafide intention could be attributed on the part of the investigating agency and such delay is caused only due to administrative and procedural reasons. It is contended that merely because there is a delay, there is no prerogative right conferred on the petitioners to seek the relief of quashing and discharge.
9. The learned Special Public Prosecutor placed reliance on a decision of this Court in V.Thiagarajan V. State reported in 2008 (2) MLJ (Cri.) 731 and contended that in the said decision this Court considered the principles laid down by the Hon'ble Apex Court in a catena of decisions regarding the exercise of power under Section 482 of the Code as well as the scope and power of this Court regarding the discharge of an accused.
10. This Court has given its careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinised the entire materials available on record and perused the petitions filed by the petitioners and the counters filed by the respondent and also perused the impugned orders passed by the learned trial Judge.
11. As already pointed out by this Court, A1 to A3 have invoked the provision under Section 239 of the Code by filing discharge petitions and A1 during the pendency of such discharge petition also preferred a petition before this Court invoking the provision under Section 482 of the Code for quashing the proceedings. Therefore, it is relevant to refer the above said two provisions of the Code in order to highlight the scope and ambit of the powers conferred under the said provisions.
12. Section 239 of the Code reads as hereunder :
"239. When accused shall be discharged If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
Section 428 of the Code reads as hereunder :
"482. Saving of inherent powers of High Court Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
13. A reading of the above said provision makes it crystal clear that the obligation to discharge the accused under Section 239 of the Code arises when the learned trial Magistrate considers the charge against the accused to be groundless on the basis of the examination of the materials produced along with the final report under Section 173 of the Code.
14. It is worthwhile to refer the principles laid down by the Hon'ble Apex Court in a landmark case in R.S.Nayak V. A.R.Antulay (AIR 1986 SC 2045) has held as follows :
"The Cr.P.C. contemplates discharge of the accused by the Court of Session under S.227 in a case triable by it ; cases instituted upon a police report are covered by S.239 and cases instituted otherwise than on police report are dealt with in S.245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under S.227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused'. Obligation to discharge the accused under S.239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under S.245 (1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction ....." It is a fact that Ss.227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under S.245, on the other hand, is reached only after the evidence referred to in S.244 has been taken. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under S.245 (1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed."
(emphasis supplied by this Court)
15. The Hon'ble Apex Court in yet another decision in State of Maharashtra V. Som Nath Thapa (AIR 1996 SC 1744) held that, "If there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence. In Black's Law Dictionary word 'presume' has been defined to mean "to believe or accept upon probable evidence". Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged." The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into ; the materials brought on record by the prosecution has to be accepted as true at that stage."
16. In yet another decision in State of Delhi V. Gyan Devi (2000 (8) SCC 239) the Hon'ble Apex Court has held as follows :
"It is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At this stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court the charge framed against the accused needs to be quashed."
(emphasis supplied by this Court)
17. The Hon'ble Apex Court in a landmark case in Pepsi Foods Ltd., Vs. Special Judicial Magistrate reported in 1998 SCC (Cri.) 1400 considered the scope and power of the High Court under Article 226 and Article 227 of the Constitution of India as well as the power of the High Court under Section 482 of the Code. The Hon'ble Apex Court in that decision has held as hereunder :
22. It is settled that the High Court can exercise its power of judicial review in criminal matters. . Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. .
26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.
.
29. No doubt the Magistrate can discharge the accused at any stage of 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. . The principles laid down by the Hon'ble Apex Court in the decisions cited supra would make it crystal clear that while invoking the provision under Section 239 of the Code, the Court has to consider and examine only materials available on record as produced by the prosecution while filing the final report in order to find out whether there is a prima facie case made out against the accused, whereas, the inherent power under Section 482 of the Code can be exercised by the High Court to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Therefore, the inherent power conferred under Section 482 of the Code is a wider one than that of the power under Section 239 of the Code.
18. At the outset, it is to be stated that A1 apart from raising grounds in respect of merits of the case also raised the ground of inordinate and unexplained delay in registering the FIR, completing the investigation and filing the final report in the discharge petition. However, considering the principle laid down by the Hon'ble Apex Court in A.R.Anulay V. R.S.Nayak reported in (1992) 1 SCC 225, wherein, the Hon'ble Apex Court has held that "an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court", A1 thought it fit to prefer the above said Criminal Original Petition before this Court for quashing the proceedings on the ground of inordinate and unexplained delay in completing the investigation during the pendency of the discharge petition before the trial court.
19. It is also relevant to refer the scope and ambit of the powers of the High Court under Section 482 of the Code as held by the Hon'ble Apex Court in Pankaj Kumar V. State of Maharashtra reported in AIR 2008 SC 3077. In the said decision, the Hon'ble Apex Court, referring and relying the earlier decisions in Janata Dal Vs. H.S. Chowdhary & Ors. (1992 4 SCC 305), Kurukshetra University & Anr. Vs. State of Haryana & Anr. [(1977) 4 SCC 451] and State of Haryana & Ors. Vs. Bhajan Lal & Ors. (1992 Supp (1) SCC 335), held as hereunder :
"10. The scope and ambit of powers of the High Court under Section 482, CrPC or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed.
11. Although in Bhajan Lal's case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the aforestated provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised.
12. The purport of the expression "rarest of rare cases" has been explained very recently in Som Mittal (supra). Speaking for the three-Judge Bench, Hon'ble the Chief Justice has said thus:
"When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or criminal proceedings should be used sparingly and with circumspection.""
20. Bearing in mind the above legal position in respect of scope and ambit of powers of this Court under Section 239 of the Code and under Section 482 of the Code, let me now consider the two fold submissions made by Mr.B.Kumar, learned Senior Counsel for the petitioner/A1 regarding the merits of the case and the delay in completing the investigation.
21. Let me now consider the first submission regarding the merits of the case.
At the outset, it is to be stated that the entire allegations against A1 are founded on the basis of her voluntary disclosure in respect of gifts including DDs and cash received by her on the occasion of her birthday in her income tax returns and also the receipt of a foreign DD to the tune of US $ 3 lakhs on her birthday in the year 1992. In the final report, it is stated that no offence is made out on the basis of the receipt of US $ 3 lakhs by way of DD. Though it is alleged that she had accepted 89 DDs worth about Rs.2,00,00,012/- from 57 persons, ultimately in the charge sheet, it was confined to only 21 persons, who have gifted the DDs to A1 including A2 and A3 and other AIADMK party leaders, who have been subsequently appointed as Chairman of Government Corporations and other government bodies and as such, it is alleged that they were concerned in official business transaction or to be transacted with A1 in her capacity of the Chief Minister and as such, A1 said to have committed the offence under Section 11 of the Act.
22. The sheet-anchor of the contentions of the learned Senior Counsel for A1 is that the statements recorded from 19 persons disclosed that they have taken DDs out of the funds mobilised from the contributions of Rs.5/- or Rs.10/- etc. by the party workers, sympathisers, admirers and well-wishers of A1 to present the DDs to her on her birthday and as such, it cannot be stated that the said 19 persons have given their own money for taking DDs, and on the other hand, they have acted only as a conduit between the large number of persons who had paid the money and the petitioner (A1) and therefore, those 19 persons having alleged business transaction or to be transacted with the Government has no relevance as they did not pay any money on their own attracting the ingredients of Section 11 of the Act.
23. It is also contended by the learned Senior Counsel for the petitioner (A1) that in view of the above said factor to the effect that the trivial amounts have been contributed by the party workers and others for taking DDs and as such, the provision under Section 20(3) of the Act is attracted and accordingly, the presumption cannot be raised against the petitioner (A1). It is also contended that the petitioner/A1 was not only the Chief Minister of Tamil Nadu, but she had the dual capacity as she was also the General Secretary of the AIADMK party and as such, it cannot be stated that the said DDs were received by her only in her capacity as the Chief Minister, viz., as a public servant, on the other hand, she had received the said DDs from her party workers, sympathisers only as the leader of the political party on the occasion of her birthday. Though learned Senior Counsel raised substantial contentions, as stated above, this Court is of the considered view that the above said contentions cannot be considered at the stage of framing the charge and the same would amount to appreciation of evidence and such exercise cannot be undertaken while dealing with the petition for discharge or the petition for quashing. It is well-settled that at the stage of framing the charge the Court has to find out whether a prima facie case is made out against the accused only on the basis of the materials available on record. The court cannot conduct a roving enquiry or to consider the probative value of the materials available on record.
24. The learned Senior Counsel for A1 placed reliance on the presumption clause under Section 20(3) of the Act.
It is relevant to refer the provisions under Sections 11, 12 and 20 of the Act as hereunder :
"S.11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant - Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, of or any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
S.12. Punishment for abetment of offences defined in Section 7 or 11 - Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
S.20. Presumption where public servant accepts gratification other than legal remuneration -
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain from himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under Clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or the valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."
25. A reading of the provision under Section 11 of the Act would make it clear that the said provision is corresponding to the provision under Section 165 IPC which was repealed subsequently by the Act (49 of 1988 Section 31).
26. The Hon'ble Apex Court in R.S.Nayak V. A.R.Antulay reported in 1986 (2) SCC 716 dealt with the essential ingredients of the provisions under Section 165 IPC and the said provision is verbatim the same as that of the provision under Section 11 of the Act and the Hon'ble Act has held that the following are the essential ingredients to attract Section 165 IPC:
"(i) the accused was a public servant ;
(ii) he accepted or obtained or agreed to accept or obtain a valuable thing without consideration or for an inadequate consideration knowing it to be inadequate ;
(iii) the person giving the thing must be a person concerned or interested in or related to the person concerned in any proceeding or business transacted or about to be transacted by the government servant or having any connection with the official himself or of any public servant to whom he is subordinate; and
(iv) the accused must have knowledge that the person giving the thing is so concerned or interested or related."
The Hon'ble Apex Court in that decision further held that indisputably the field under Section 165 is wider. Therefore, it is needless to state that the provision under Section 11 of the Act is also wider.
27. It is pertinent to note that as per Sub-Section (1) & (2) of Section 20 of the Act, there is a presumption clause in respect of offence under Sections 11 and 12 of the Act. As far as the case on hand is concerned, as it is already pointed out that A1 had admitted the receipt of demand drafts and termed them as gifts as disclosed in her income tax returns and as such, the presumption contemplated under Section 20(1) of the Act is to be raised against A1 and as far as A2 and A3 are concerned, the presumption contemplated under sub-section (2) to Section 20 has to be raised. It is well-settled that such presumption is a rebuttable one and it is for the accused to rebut the presumption only during the course of trial and not at the stage of framing of charge. Merely because 19 persons have stated in their statements recorded under Section 161 of the Code to the effect that the DDs were taken from the contribution of Rs.5/-, Rs.10/- etc. (trivial amounts) from the party workers, sympathisers and admirers, the petitioners/A1, A2 and A3 cannot invoke the provision under Section 20 (3) of the Act. It is relevant to note that as per Section 20 (3) of the Act, the Court may decline to draw the presumption under sub-section (1) or (2), if the amount is so trivial. However, the provision under Section 20 (3) of the Act could be considered only at the time of trial by testing and analyzing the evidence of the above said 19 persons by way of appreciation of the evidence and such exercise cannot be undertaken at the pre-trial stage, namely, at the time of framing the charge.
28. As far as A2 and A3 are concerned, it is to be stated that they have been implicated for the offence under Section 12 of the Act on the allegation of abetting A1 to commit the offence under Section 11 of the Act. It is pertinent to note that it is alleged against A2 and A3 in the charge sheet that A2 has provided an amount of Rs.22,53,700/- and A3 has provided Rs.25,50,000/- for the purchase of DDs in favour of A1 and presented the same to her on her birthday in the year 1992 and during the said relevant period, they were Ministers in the Cabinet of A1. It is pointed out by the learned Special Public Prosecutor as per the counter that L.Ws.8, 63, 64 and 67 have implicated A2. In respect of A3, it is pointed out by the learned Special Public Prosecutor that the prosecution placed reliance on the statements of L.Ws.24, 38, 39 and 42 and among them L.W.42 has stated in his 161 statement that the amount for purchase of DDs was provided by A3 and the DD was purchased as instructed by him and as such, it cannot be stated that there is no material available on record to link A3 with the alleged transactions. It is already pointed out that he was also a Minister in the Cabinet of A1. Added to the above said factors, it is also pointed out earlier that even in respect of the offence under Section 12 of the Act, there is a presumption clause contemplated as per Section 20 (2) of the Act and as A1 accepted and admitted the receipt of DDs, the prosecution is entitled to place reliance on the presumption clause under Section 20(2) of the Act in respect of A2 and A3 and as such, it is for A2 and A3 to rebut the presumption only at the time of trial. In view of the aforesaid reasons, this Court is of the considered view that the contentions raised in respect of the merits of the case are untenable.
29. In respect of the second limb of the contention of the learned Senior Counsel for A1 seeking the relief of quashing the proceedings on the ground of inordinate delay in completing the investigation and filing the final report, it is to be borne in mind of this Court about the factual scenario of the sequence of events right from registering the FIR to filing the final report coupled with broad features of the nature of allegation levelled against A1.
30. The FIR in this case was originally registered on 24.06.1996 for the offences under Sections 13(2) r/w 13(1)(e) of the Act by the Deputy Superintendent of Police, C.B.C.I.D., on the basis a D.O. Letter sent by the Director General of Income Tax (Investigation), Chennai, furnishing details of gifts received by A1 on the occasion of her birthday as disclosed in her income tax returns. Thereafter, the case was entrusted to CBI and the CBI registered the FIR in R.C.No.50(A)/1996 for the offences under Sections 13(2) r/w 13(1)(e) of the Act and the said FIR was also registered on the basis of the communication of the Director General of Income Tax (Investigation), Chennai, on the basis of the disclosure of the gifts received by A1 on her birthdays in her income tax returns. Again after commencement of investigation, it is stated in the charge sheet that the allegations attracted the provisions under Sections 13(2) r/w 13(1)(d) of the Act and accordingly, the said provision was substituted in the First Information Report registered in Crime R.C.No.50(A)/1996 and proceeded with the investigation and ultimately, as already pointed out, the final report was filed only for the offence under Section 11 of the Act as against A1 and for the offence under Section 12 of the Act as against A2 and A3. It is to be reiterated that the whole allegation is founded on the basis of disclosure of the gifts received by A1 in her income tax returns and the above said FIRs were not registered on the basis of any complaint preferred by any aggrieved persons or from any other source of information. Therefore, it is crystal clear that A1 has not suppressed any material factor and there is absolutely no clandestine dealings alleged against her. Further it is also relevant to state that the FIR was registered on the allegation of receipt of 89 DDs from 57 persons including a foreign DD for US $ 3 lakhs, but ultimately at the time of filing the final report, the allegation was confined to only 21 persons including A2 and A3. Therefore, the value of the DDs comes to Rs.1,48,00,000/- and in respect of the foreign DD for an amount of US $ 3 lakhs, it is stated in the final report that no offence is made out.
31. It is pertinent to note that the alleged transactions took place between 1990 and 1993 as per the FIR registered in Crime No.15 of 1996 dated 24.06.1996 by the C.B.C.I.D.. The second FIR was registered on 02.10.1996 in R.C.No.50(A)/1996 by the CBI. Therefore, there is a delay of four years in registering the FIR in this case. The investigation was completed and the final report was filed only on 31.07.2006 and as such, there is a delay of 10 years in filing the final report from the date of registration of the FIR and nearly about 14 years in filing the final report from the date of alleged transactions as it is stated in the final report that the alleged transactions took place in the year 1992.
32. It is seen that in the final report there is absolutely no explanation whatsoever for such an inordinate delay of more than a decade for completing the investigation and filing the final report. Equally there is no explanation for the delay of four years in registering the FIR in the above said two FIRs. Only for the first time, in the counter filed before the trial court in the discharge petition and before this Court in the Criminal Original Petition for quashing the proceedings in Crl.O.P.No.19152 of 2010, the respondent has come forward with the explanation to the effect that the investigation was to be conducted in USA, UK and UAE and as such, the time to complete the same took a very long time. I am unable to accept such a strange and curious explanation for the simple reason that even as per the allegations contained in the FIR and the charge sheet only one DD is in relation to a foreign country for an amount of US $ 3 lakhs and in respect of the same, it is stated that no offence is made out and as such, there is no question of conducting the investigation in various countries. It is also pertinent to note that in respect of the said foreign DD of US $ 3 lakhs, it is stated that in the month of May 2000 itself the documents have been collected and further it is mentioned in the annexure attached to the charge sheet that on 21.12.2001 itself, recommendation was made for prosecuting A1 for the offence under Section 11 and A2 and A3 for the offence under Section 12 of the Act and as such, there is no explanation for further delay of six years in filing the final report.
33. Yet another explanation given by the respondent is that after completion of investigation in the year 2000 itself, it took time for getting legal opinion from the Attorney General of India in respect of obtaining sanction for prosecuting A1 for the offence under the Act. It is to be stated that A1 was the Chief Minister only upto May 1996 and thereafter, she was only an M.L.A.
34. The Hon'ble Apex Court in Habibulla Khan Vs. State of Orissa reported in (1995) 2 SCC 437 held that sanction for prosecution under Section 19 of the Act against persons alleged to have committed the offences during their tenure as Ministers after they ceased to be the Ministers not required, though they continued to be MLAs and even assuming that MLAs are public servants. The said decision was rendered by the Hon'ble Apex Court as early as in the year 1995.
35. Again, in P.V.Narasimha Rao V. State (CBI/SPE) reported in 1998 (4) SCC 626 the Hon'ble Apex Court has held that in respect of a Member of Parliament, who is a public servant, the sanction shall be obtained from the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha, as the case may be and as such, in respect of an M.L.A., the Speaker of the Legislative Assembly is the competent authority to accord sanction and accordingly, in the instant case, it is stated in the charge sheet that the sanction was obtained from the Speaker of the Tamil Nadu Assembly as sanction was accorded as per the decision of the Hon'ble Apex Court in P.V.Narasimha Rao's case.
36. It is pertinent to note that the Hon'ble Apex Court rendered the said decision in P.V.Narasimha Rao's case as early as in the year 1998 and even in the said case, the CBI is the respondent and as such, on the face of it, the explanation offered by the respondent for the inordinate delay is unacceptable. On the other hand, it is relevant to note that there is absolutely no allegation made against the petitioners in respect of causing hindrance and thereby stalling or hampering the investigation either in the counter filed in the Criminal Original Petition or in the counter filed in Criminal Revision Petitions and the petitioners are not at all responsible for such inordinate delay in completing the investigation and filing the final report. The sword of Damocles due to prolonged investigation over a period of 10 years in this case is perilously hanging over the heads of the petitioners. It is imperative at the very threshold to state that in all criminal prosecutions right to a speedy trial is now an inalienable fundamental right of the citizen under Article 21 of the Constitution of India. Such right cannot be allowed to be whittled down on the ground of flimsy and untenable excuse for the inordinate delay in completion of the investigation.
37. At this juncture, it relevant to refer the following decisions:
A Full Bench of the Patna High Court in Madheswari Singh & another V. State of Bihar reported in AIR 1986 PATNA 324 quashed the criminal proceedings on the ground of inordinate and unexplained delay.
38. The said Full Bench decision of the Patna High Court got the seal of approval from the Hon'ble Apex Court in A.R.Antulay V. R.S.Nayak reported in 1992 (1) SCC 324. In the said decision, the Hon'ble Apex Court incorporated the said Full Bench decision as hereunder :
"74. At this stage, we think it appropriate to deal with the facts of and the principles enunciated in Madheshwardhari Singh V. State of Bihar AIR 1986 PAT 324 which decision is the subject matter of Criminal Appeal No.126 of 1987 preferred by the State of Bihar. In fact, the learned counsel for the petitioners-accused strongly relied upon it. Five questions were referred to the Full Bench, namely :
"(1) Whether the fundamental right to a speedy public trial enshrined in Article 21 of the Constitution by precedential mandate is confined to only capital offences or is attracted to all offences generically ?
(2) Whether the aforesaid right to a speedy trial is applicable only to the proceedings in Court stricto senso or includes within its sweep the preceding police investigation as well ?
(3) Is a speedy trial equally mandated by both the letter and spirit of the Code of Criminal Procedure, 1973?
(4) Whether the ratio in State of Bihar V. Ramdaras Ahir (1985 Crl.L.J. 584) (Pat HC) and in State V. Maksudan Singh (AIR 1986 Pat 38) are applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquittal ?
(5) Whether an outer time-limit to concretise the right to a speedy public trial is envisioned by principle of precedent ?"
.....
"76. Sandhawalia, CJ., speaking for the Full Bench, held, on a review of several decisions of this Court and of the United States of America, that right to speedy trial is inherent in and flows from Article 21. The learned Chief Justice stated the following four principles as flowing from Article 21, viz., (1) That, now by precedential mandate the basic human right to a speedy public trial in all criminal prosecutions has been expressly written as if with pen and ink in the constitutional right relating to life and liberty guaranteed under Article 21 of our Constitution. Further, that this right is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American-Constitution.
(2) That the American precedents on the Sixth Amendment of that Constitution would be equally attracted and applicable as persuasive on this facet of Article 21 of our Constitution as well.
(3) That once the constitutional guarantee on a speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been violated, then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground.
(4) That a callous and inordinate prolonged delay of ten years or more, which, in no way arises from the accussed's default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of reversal of a clean acquittal on a capital charge, would be per se prejudicial to the accused and would plainly violate the constitutional guarantee of a speedy trial under Article 21.
77. The other findings of the Full Bench are to the following effect :
1. the right to speedy trial applies not only to major crimes but to minor offences as well;
2. it takes in its fold not only the proceedings in court but also the preceding police investigation;
3. the provisions of the CrPC and the Bihar Police Manual not only embody the spirit of a speedy public trial but, in fact, epitomise it by express provisions mandating speedy and expeditious disposal within specified time limits. There is no conflict between Article 21 and the provisions of the Code.
78. The more important principle enunciated in this decision relates to the question whether a time-limit should be prescribed to effectuate the said right. After an elaborate examination of several decisions of this Court including Sheela Barse, and of the American Supreme Court, the learned Judge came to the following conclusion :
".... an outer limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It is further held that a callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones plainly violate the constitutional guarantee of a speedy public trial under Article 21.
79. He added further :
"A sharp note of caution must be sounded. The aforesaid finding must not be misunderstood or misconstrued to mean that a delay of less than seven years would not in any case amount to prejudice. Indeed, what is sought to be laid down is the extreme outer limit where after grave prejudice to the accused must be presumed and the infraction of the constitutional right would be plainly established. Really, I am somewhat hesitant in spelling out even the aforesaid outer time limit which, perhaps, errs on the side of strictitude. But since we are following binding precedent, the same has to be unreservedly accepted. Nor is it sought to be laid down that in a lesser period than seven years an accused person would not be able to establish circumstances pointing to the patent prejudice which may entitle him to invoke the guarantee of speedy public trial under Article 21."
80. The learned Chief Justice then examined the facts of the case before him in the light of the principles evolved and held that it is a clear case where the petitioner's right to speedy trial has been violated. He found that the petitioner was not guilty of obstructive tactics and that the delay was entirely of the prosecution's doing. Accordingly, the investigation and the trial against the petitioner was quashed. Another Full Bench presided over by the same learned Chief Justice held in State v. Maksudan Singh that in case of serious offences like murder, delay of 10 years or more occasioned entirely by the default of prosecution must be deemed to be per se prejudicial to the accused."
39. The Hon'ble Apex Court in A.R.Antulay's case further held that right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial.
40.0. It is relevant to refer two of the decisions of the Hon'ble Apex Court in which the proceedings have been quashed in respect of the offence under the Prevention of Corruption Act apart from other offences.
40.1. In Pankaj Kumar's case (cited supra), the Hon'ble Apex Court held as hereunder:
"14. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union of India & Anr. (AIR 1978 SC 597), in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar (1980 (1) SCC 81), this Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
15. The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. [(1992) 1 SCC 225]. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?; (iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays; (v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case; (vi) ultimately, the court has to balance and weigh several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied; (vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial; (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) & Ors. [(1996) 4 SCC 33], "Common Cause", A Registered Society Vs. Union of India & Ors.[(1996) 6 SCC 775], Raj Deo Sharma Vs. State of Bihar [(1998) 7 SCC 507] and Raj Deo Sharma II Vs. State of Bihar [[1999) 7 SCC 604] gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka [(2002) 4 SCC 578]. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent.
17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial."
40.2. In yet another decision Vakil Prasad Singh V. State of Bihar reported in AIR 2009 SC 1822 the Hon'ble Apex Court has taken a similar view as in the earlier decision cited supra (Pankaj Kumar's case).
41. If the factual scenario in the instant case coupled with the sequence of events, as stated above, resulting in inordinate and unexplained delay of 10 years in completing the investigation is tested on the touch stone of the principles enumerated by the Hon'ble Apex Court in the decisions cited supra, this Court has no hesitation to hold that in the case on hand, the petitioner's constitutional right to speedy trial enshrined under Article 21 of the Constitution of India stands flagrantly violated.
42. At the risk of repetition, it is to be reiterated that there is not only delay of four years in registering the FIR as the alleged transactions are said to have taken place in the year 1992 and the first FIR was registered only on 24.06.1996 there is a further inordinate delay of 10 years in completing the investigation and filing the final report and there is absolutely no acceptable and reasonable explanation forthcoming from the prosecution and on the other hand, the petitioners are in no way responsible for such an inordinate delay, as pointed out earlier. The prosecution has miserably failed to show any exceptional circumstances which would possibly be taken into consideration for condoning the callous and inordinate delay of more than a decade in completing the investigation. It is needless to state that the delay would not only amount to denial of justice, but also would result in serious miscarriage of justice apart from causing grave prejudice to the petitioners.
43. The Hon'ble Apex Court in the decision cited supra in Pankaj Kumar's case (cited supra) has held that inordinately long delay would be taken as presumptive proof of prejudice. It is also held by the Hon'ble Apex Court in the decisions cited supra that the right to speedy trial is not only applicable to the actual proceedings in Court, but also includes within its sweep the preceding investigation as well and the speedy trial extends equally to all criminal prosecution and not to any particular category of cases. This Court is of the considered view that the prolonged investigation by the respondent could have very well caused extreme mental stress and strain to the petitioners. The sword of Damocles is hanging perilously over their heads for over 10 years.
44. In the decisions cited supra, the Hon'ble Apex Court highlighted the principle laid down in a landmark case in State of Haryana & Ors. V. Bhajan Lal & Ors. (1992 Supp. (1) SCC 335) formulating as many as seven category of cases by way of illustration, wherein the extraordinary power under Section 482 of the Code could be exercised by the High Court to prevent abuse of process of Court or otherwise to secure the ends of justice.
45. The Hon'ble Apex Court in the decisions held that the power possessed by the High Court under Section 482 of the Code is undoubtedly very wide, but it has to be exercised in appropriate cases to do real and substantial justice for the administration of which alone the Courts exist.
46. In Vakil Prasad Singh (cited supra), the Hon'ble Apex Court has ultimately held as hereunder :
"16. ..... The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed."
47. The above said principle laid down by the Hon'ble Apex Court is squarely applicable to the facts of the instant case in view of the reasons assigned earlier. There is absolutely no justification for subjecting the petitioner (A1) to undergo the ordeal of trial after the inordinate and unexplained delay and further continuance of the criminal proceedings pending against the petitioner (A1) would certainly amount to abuse of process of Court. In the case on hand, as the petitioner (A1) rightly invoked the inherent power of this Court under Section 482 of the Code by filing the above said Crl.O.P.No.19152 of 2010 on the ground of inordinate and unexplained delay in conducting the investigation and filing the final report and more particularly, on the basis of the principle laid down by the Hon'ble Apex Court in A.R.Antulay case (cited supra) that such an objection based on denial of right to speedy right should first be addressed before the High Court, this Court has no hesitation to invoke and exercise the extraordinary inherent power under Section 482 of the Code to quash the entire proceedings as the fundamental right to speedy trial of A1 enshrined under Article 21 of the Constitution of India has been flagrantly violated in view of the reasons assigned earlier.
48. Consequently, the impugned order passed by the learned trial Judge dismissing the petition for discharge filed by the petitioner (A1) is liable to be set aside and accordingly, the said order of the learned XIII Additional Special Court for CBI Cases, City Civil Court, Chennai, made in Crl.M.P.No.760 of 2009 in C.C.No.26 of 2006 dated 12.04.2011 is hereby set aside and the proceedings initiated against the petitioner (A1) in in C.C.No.26 of 2006 stands quashed.
49. As far as A2 and A3 are concerned, though they have raised the ground of inordinate and unexplained delay of 10 years in filing the final report in their discharge petitions, they have not preferred any petition under Section 482 of the Code seeking the relief of quashing the proceedings. However, as this Court quashed the entire proceedings in respect of A1, the proceedings initiated against A2 and A3, who have been implicated on the allegation of abetment under Section 12 of the Act would necessarily fall into the ground and as such, the impugned orders of dismissal of their discharge petitions are also liable to be set aside. Accordingly, the said orders of the learned XIII Additional Special Court for CBI Cases, City Civil Court, Chennai, made in Crl.M.P.Nos.723 and 887 of 2009 in C.C.No.26 of 2006 dated 12.04.2011 are also hereby set aside.
These petitions are allowed accordingly. Consequently, connected miscellaneous petition in M.P.No.1 of 2010 in Crl.O.P.No.19152 of 2010 is closed.
gg To
1. The XIII Additional Special Court for CBI Cases, City Civil Court, Chennai.
2. The Superintendent, ACB, Central Bureau of Investigation, Chennai.
3. The Special Public Prosecutor for CBI Cases, Madras High Court, Chennai