Madras High Court
V.R. Nedunchezhian vs State on 29 April, 1999
Equivalent citations: 1999(2)ALD(CRI)559, 2000CRILJ976
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The God is omnipotent, omniscient and omnipresent. Now, we have been seeing that there is a constant and continuous attempt being made to replace the word "God" by the word "corruption".
2. Day-in and day-out there is a preaching of sermons listing out the evils of corruption and raising slogans with catch-words against the corruption. Similarly, we have been seeing that there are positive and constructive remedial measures and steps taken for its eradication by the agency concerned. We have also been seeing that there is a constant debate throughout the globe regarding the magnitude and multi-dimensional causes of corruption. But even then, "omnipresent" corruption with its tentacles poses a great threat to the welfare of society and grows in menacing proportion.
3. An impression is also created by and large that corruption is an inevitable evil. However, the persons who are at the helm of affairs do forget the popular saying:
Dharmo Rakshathi Rakshithaha If we protect "Dharma", Dharma will protect us. If we protect "law", law will protect us. To put it differently, if we do not protect law, law will not protect us.
4. In our democratic set up based on the concept of 'Rule of Law', everybody shall accept that the law is supreme. Even the ruler is under the God and law. Everyone is under the supremacy of law. Whoever he may be; however high he may be, no matter how powerful he may be, and however rich he may be, but he is under the law.
5. In British India, corruption was kept under check by the effective enforcement of laws by the police. After independence, we had the Prevention of Corruption Act, 1947. Later, the Prevention of Corruption Act, 1988 came into force to contain corruption. Vigilance Commission came into being both at the Centre and the States to deal with the compLalnts of corruption. Despite all these, we witness a steady rise in the magnitude of corruption in public life. The above measures have not prevented the slide in the overall integrity of those in public service.
6. It is said that the corruption has now become a way of life and permeates almost every sphere of our daily lives. It is also said that there is virtually no activity of the Government not tainted by corruption in some measure and no Government programme is safe. Corruption in the administrative set up hampers efficiency of the Government.
7. The law-enforcing agency cannot turn a blind eye to the present sorry state of affairs marked by rampant corruption. Corruption basically implies 'misuse of public office for private profit.' The range of transactions and deals involved are vast from the elemental speed money deals to Commissions on simple purchases and works contracts.
8. There is an imperative need for cleansing of the Administrative System which has been nurturing corruption. The people as such are now fed up with corruption and abuse of power at all levels. Greasing the palms continues to be a way of life for anything and everything. In the words of Krishnaiyer, J "gratification is speed money".
9. At present our country has been afflicted with this virus of corruption which is eating into the vitals of our character and strength. Corruption or graft is a cancer which has to be contained, if it cannot be completely eradicated. Corruption is becoming more and more organised and sophisticated.
11. There is a famous song in Tamil:
(The gangs that loot Never stop their plots;
The groups making laws Never stop fighting the flaws.
But lo! none can accomplish this feat unless the thieves change their heart:) The above view of the great Pose Pattukottai Kalyanasundaram is to be taken note of, in the present juncture.
12. Hence, a systematic effort to inculcate, values of integrity, honesty and probity in public life need to be undertaken on a large scale at all levels in the entire country so that we can have a clean and corrupt-free administration in India as a whole.
13. These are all the thoughts which came up in my mind in the context of the present situation, while dealing with this petition.
14. This is a case which relates to the alleged Acts of corruption committed by the former Chief Minister, the former" Ministers and other Officials. It is vehemently stated in this case that false and frivolous accusations of corruption have been made through this charge sheet against the adversaries, the past rulers, exposing them to social ridicule with an ulterior motive of wreaking vengeance due to past animosity at the instance of the present rulers.
15. This objection by the persons concerned who have been charge-sheeted now cannot be given due importance by this Court, as it is the settled position of law that this Court at the threshold of commencement of trial would not go into the question, whether the accusation is genuine or mala fide. However, it shall be stated that the person facing the corruption charges cannot be denied his right to raise the legal issues even at this stage in order to ventilate his grievance before this Court, though it is procLalmed that the said person is not above law.
16. Let us now come to the present petition. This is the revision petition filed by Mr. V. R. Nedunchezhian the petitioner (A-3) against an order dismissing his application by rejecting his discharge and framing the charges under the relevant sections of Indian Penal Code and Prevention of Corruption Act, dated 14-5-1998.
17. The grievance expressed by the petitioner in this petition is that without any material, the learned Special Judge framed charge against the petitioner (A-3) and rejected to discharge him.
18. Mr. V.R. Nedunchezhian, arrayed as A-3 in C.C. No. 15/97 is the former Finance Minister of Government of Tamil Nadu during the relevant period 1995-96. After the formation of the new Government, a compLalnt dated 13-8-1996 against the former Chief Minister, the former Ministers and officials over the irregularities in the purchase and supply of colour T.V. sets in the villages, was given by one Narayana, I.A.S. to the Inspector General of Police (Crimes), Madras and the same was forwarded by the I.G. of Police on 14-8-1996 with a direction to the Deputy Superintendent of Police to register the case and to take necessary further action and accordingly, it was registered in Cr. No. 21 /96 for the offences under Sections 120B readwith 109 read with 409, I.P.C. and Section 13(2) read with 13(1)(c) and (d) of Prevention of Corruption Act, 1988.
19. Since there is no allegation against the petitioner, the former Finance Minister, in the compLalnt, his name was not mentioned in the F.I.R. After finishing the investigation, the charge-sheet was filed against 11 persons including the petitioner as A-3 under the relevant sections of the Indian Penal Code and of Prevention of Corruption Act, 1988, on 23-10-1997. This was taken on file by the XII Additional Special Judge, Chennai in C.C. No. 15/97.
20. On service of summons, all the accused persons filed various applications seeking for different reliefs before framing the charges. As one among them, the petitioner filed an application in Crl. M.P. No. 390 of 1998 under Section 239, Cr. P.C. requesting to discharge. Though the applications were separately filed by all the accused, the learned trial Judge disposed of those applications by common order on 14-5-1998. In the said order, the learned trial Judge considered the contention urged by the petitioner and rejected his prayer for discharge holding that there are some materials and framed charges against him and others. This revision has been filed before this Court, challenging the order impugned so far as he is concerned.
21. The prosecution case is that during the year 1995-96, the petitioner (A-3) along with 10 other accused entered into a criminal conspiracy to do illegal act in the purchase of colour T.V. sets by the Government for the purpose of distribution in the villages and obtained a pecuniary advantage by abusing the office of Public Servant as a Finance Minister and thereby committed the offences under Sections 120B, I.P.C. and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
22. The arguments advanced by the learned counsel for the petitioner, while assailing the impugned order could be summarised as follows:--
(i) Admittedly, the petitioner/accused had not received any illegal gratification from any other persons for approval of the purchase of the T.V. sets. Further, there is nothing on record to show that the petitioner had in any way helped other to get the alleged illegal gratification in the said transaction . There is also nothing to show that the conspiracy had taken place between the petitioner and others.
(ii) The charge levelled against the petitioner is totally groundless and it was made with mala fide intention only to damage his name and reputation. Apart from the only signature of the petitioner/A-3 in the Note Proposal File dated 11-12-1995, there is nothing in the entire record of case to implicate him as an accused. On 9-12-1995 the Finance Secretary himself has signed his name on the Note Proposal File. It was later circulated to the petitioner on 11-12-1995. Since the Finance Secretary has already endorsed and signed, the petitioner as a Finance Minister put his signature on 11-12-1995. Therefore, the charges framed against the petitioner are illegal and he is liable to be discharged.
23. The counsel for the petitioner in order to sustain his plea regarding the discharge would cite several authorities.
24. In reply to the said contentions, the learned Public Prosecutor would submit as follows:--
(i) The present revision petition is not maintainable against an order of framing charges which is an interlocutory order, as no revision would lie against the same under Section 397(2), Cr. P.C. as well as Section 19(3)(c) of the P.C. Act.
(ii) Though the petitioner has not received any pecuniary advantage for himself, Section 13(1)(d)(i) of P.C. Act, 1988 would apply to the case of the petitioner as he has abused his official position by obtaining pecuniary advantage for others.
(iii) Though the Finance Secretary Mr. Rajaraman, witness, has raised finance objection, the petitioner signed the file which would tantamount to illegal omission, which was done in pursuance of the conspiracy.
(iv) The petitioner is charged under Section 120B, I.P.C. As per Section 10 of the Evidence Act, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything said, oral or written by any one of such persons is a relevant fact for proving existence of conspiracy. It is not necessary that there should be proof of fact that the conspiracy hatched.
25. The learned Public Prosecutor would also cite as many authorities in order to substantiate his submissions.
26. Having regard to the various pleas raised on either side, the two important questions would arise for consideration in this case:
(1) Whether the impugned order is interlocutory in nature which prohibits the entertainment of the revision by this Court?
(2) Even assuming that the said revision is maintainable, can it be said that the impugned order is illegal and the petitioner is liable to be discharged?
27. The objection raised by the learned Public Prosecutor with reference to the maintainability of the revision is on the basis of the decision rendered by the Apex Court in V.C. Shukla v. State holding that no revision could be entertained against an order framing charges which is an interlocutory order. This revision filed before this Court is under Sections 397 and 401, Cr. P.C. Though this Court has got powers under Sections 397 and 401, Cr. P.C. to call for the records of any proceeding before any inferior Criminal Court and go into the correctness, legality or propriety of any order any such proceeding of such inferior Court, under Section 397(2) the powers of revision shall not be exercised in relation to an interlocutory order.
28. It is also pointed out by the learned Public Prosecutor that under Section 19(3)(c) of P.C. Act the Court shall not exercise the powers in revision in relation to any interlocutory order passed by the Special Court in the proceedings under the Act. Therefore, if the Court comes to the conclusion that the impugned order framing the charge against the petitioner is an interlocutory order, then this Court has necessarily to dismiss the petition as not sustainable in law.
29. In (supra), the Apex Court, while dealing with Section 11 of Special Courts Act, 1979, would hold that the order framing charges is an interlocutory order and the appeal against the same is incompetent. While defining the interlocutory order, it is held as follows (Paras 22, 23, 44 and 45):---
To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia, J. in the case of Madhu Limaye v. State of Maharashtra clearly mean to convey that an order framing charge is not an interlocutory order but is an intermediate order... Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all.... As the decisions of this Court in the cases of Madhu Limaye and Amarnath v. State of Haryana were given with respect to the provisions of the Code, particularly Section 397(2), they were correctly decided and would have no application to the interpretation of Section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non obstante clause.... We are satisfied that so far as the expression 'interlocutory order' appearing in Section 11(1) of the Act is concerned, it has, been used in the natural sense and not in a special or a wider sense as used by the Code in Section 397(2).
30. Thus, the meaning of 'interlocutory order' as contained in Section 11 of Special Courts Act, was given by the Apex Court in consonance with the avowed object of the introduction of the said Act. But, the decision in Madhu Limaye's case in with which the Apex Court in (supra) agreed, would clearly say that the order framing the charge under Criminal Procedure Code affecting the rights of the parties would be revisable in the revisional jurisdiction. Therefore, it cannot be called to be an interlocutory order but as interpreted by the Apex Court, it could be termed as an intermediate order, since it affects the lib-erty and rights of the parties.
31. Moreover, the impugned order in the instant case does not confine itself with the framing of charges alone, but also would advert to consideration of the grounds urged by the petitioner for discharge and rejection of the same on giving the reasons. All the more reason, that the impugned order giving reasonings passed by the trial Court for refusing to discharge can be subjected to the scrutiny by the revisional Court, in order to find out whether the order is correct, proper and legal.
32. In Century Spinning and Manufacturing Company Limited v. State of Maharashtra , it is held as follows (para 16):--
The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charges merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
It is also held by the Apex Court in State of Maharashtra v. Som Nath Thapa (1996) 2 Crimes 64 : 1996 Cri LJ 2448 (SC) as thus:--
The order of framing of charge substantially affects the liberty of a concerned person.
33. Therefore, in order to find out whether the special Court has applied its judicial mind while passing the impugned order before framing charges, which would substantially affect the right of the accused and while giving the reasons for the rejection of the grounds for discharge, the Court in revisional jurisdiction has to necessarily entertain the revision to exercise its powers to correct the illegality committed, if any, by the trial Court.
34. In view of the above reasoning, I am of the considered opinion that the impugned order cannot be considered to be an interlocutory order, as it has affected the right of the parties, so as to entitle the party from approaching this Court through this revision and as such, the revision is maintainable.
35. Coming to the second point, it is quite relevant to quote the provisions under which the application was filed by the petitioner requesting for discharge before the trial Judge.
36. Section 239, Cr. P.C. is as follows:--
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.
Under this section, when the trial Court considers that the charge against the accused is groundless, it shall discharge the accused by recording its reasons.
37. Section 240, Cr. P.C. provides thus:--
Framing of charge.-- (1) If, upon such consideration, examination, if any, and hearing the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and expLalned to the accused, and he shall be asked whether he pleads guilty of the offence charged or cLalms to be tried.
Under this section, if he forms an opinion that the accused could be adequately punished for the offence on finding ground for presuming that the accused committed the said offence, he shall frame charge.
38. The reading of both the sections would reveal that the decision as to whether to frame charge or not is to be taken by the trial Court only after the application of judicial mind to the facts of the case.
39. Then, let us see the various authorities which would give the guidelines to the trial Courts for the process of invoking Sections 239 and 240 of Cr. P.C. and other analogous provisions in Cr. P.C.
40. In R.S. Nayak v. A.R. Antulay , the Apex Court would observe as under (para 44):--
The Code contemplates discharge of the accused by the Court of Session under Section 227 in case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under Section 227, the trial Judge is required to discharge the accused if he 'considers that there is no sufficient ground for proceeding against the accused'. Obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 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.... 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.
41. In Ajay Malik v. State (1997) 1 Cur Cri 61 the Delhi High Court would make the following observation:--
The Court is not to frame the charge at the mere asking of the prosecution. It has to direct its judicial mind to the question as to whether or not the charge is required to be framed. It is not a mere empty formality or a mere dressing on the salad. What is expected of the Magistrate is to give reasons so that "on the reading of the order one can perceive clearly as to how and on what basis the trial Court came to the conclusion that a prima facie case was made out against the accused". And, while furnishing the reasons he is neither expected nor required to either enter into a lengthy discourse or to bring out a ponderous judgment. But then, giving of reasons is among the most important duties of the Court. It is a check on unbridled discretion without which the freedom of Court may perhaps become unfettered and undirected and judging may become arbitrary.
42. In Ratnatraya Heat Exchangers Ltd. v. Lokendar nath Sharma (1997) 1 Cur Cri R 184, the following is the observation made by the Punjab and Haryana High Court:--
This Court on comparison of Section 227, Cr. P.C. held "In Section 239, Cr. P.C. the words used are groundle Sections To my mind a reading of Sections 227 and 239, Cr. P.C. gives an impression that a Magistrate has much less powers to discharge than the Sessions Judge is entitled to discharge if he does not find that there are sufficient grounds for proceeding which means that even if there are grounds against the accused but these may not be sufficient for proceeding. Under Section 239, Cr. P.C. the Magistrate is entitled to discharge an accused if the charge against him is groundless meaning thereby that there is absolutely no case against him. This position excludes the situation where there are some grounds which may not be sufficient for proceeding. To hold that the charge is groundless, the situation can only be when there is no substance in the charge but to hold that there are not sufficient grounds, this may not be situation. There may be some grounds and the charge may not be groundless but these grounds may not be sufficient for proceeding.... To my mind his power for discharging under Section 239, Cr. P.C. are much narrower than the powers under Section 227, Cr. P.C. At the stage of framing of charges, a Magistrate had only to see whether a prima facie case regarding the commission of certain offences is made out. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in the case. He is not required to pass an order discharging the accused on consideration of case on merits at the stage of framing of charges without affording an opportunity to prosecution to adduce evidence.
43. In Satish Mehta v. Delhi Administration (1996) 3 Crimes 85 (SC), the Apex Court would observe thus:--
In a situation arises under Section 239 of the Code, the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very substainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.
44. In State of Maharashtra v. Som Nath Thapa (1996) 2 Crimes 64 : 1996 Cri LJ 2448, the Supreme Court would observe thus (at pp. 2454-55 of Cri LJ):--
In our view, better and clearer statement of law would be 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.
Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming. Stroud's 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". In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.
The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence in 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 tnaterials brought on record by the prosecution has to be accepted as true at that stage.
45. In Shree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia , the Apex Court would observe as follows:--
Section 227 itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground - for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate inquiry in sifting and weighing the materials. Nor is it necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime.... Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials.... The discretion exercised by the trial Court in discharging the appellant's father was correct. Although it was his moral obligation as manager of the family to protect the deceased and safeguard her life, but that by itself without anything more is not sufficient to frame a charge against him.
46. It is manifest from the reading of the above decisions that the charges can be framed against any accused person only in those discerning few cases where the Court comes to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charges. As shown earlier, it-is observed in catena of authorities that the prosecution must show a prima facie case against the accused in order to enable the Court to frame a charge against him. If the evidence before the Court is of such type which if unrebutted and unchallenged by way of cross-examination would not be sufficient enough to convict the accused ultimately, then the Court would not be justified in framing the charge against the accused. The Court at that stage is under no obligation to make an elaborate enquiry by sifting and weighing the material to find out a case against the accused beyond a reasonable doubt which is required to do at the time of the final hearing. The trial Court Judge at that preliminary stage is required to find out whether there is any material which may lead to the inference that the accused has committed an offence. Thus, the charge can be framed by the Court against an accused, if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the Court would be justified in framing the charges against an accused, if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a full-fledged tree during trial.
47. With the above background, it is to be seen now as to whether the learned trial Judge was justified in ordering the framing of the charges by rejecting the petition filed by the petitioner for discharge.
48. The grounds mentioned in the impugned order passed by the trial Judge refusing to discharge are given below:--
(i) Though the petitioner knew very well that the Finance Secretary objected to the illegal price hike of Rs. 2,000/- for every set without taking into consideration of the objections raised by his own Finance Department, he simply cleared the proposal for purchase of T. V. by signing the file on 11-12 -1995. Though he had not obtained any pecuniary advantage for himself, he enabled the" others to obtain pecuniary advantage, which resulted in the loss to the Government.
(ii) In this case, it is found that all the accused were involved in the criminal conspiracy to commit criminal breach of trust in respect of the funds belonging to the Government and that the public servants, viz., A1 to A7 misused their position as public servants committed criminal misconduct and gained pecuniary advantage either for themselves or for others. One of the characteristics of conspiracy will always be secrecy. The fact that A3 failed to attach any importance to the valid and serious objections raised by his own Finance Department for the proposal to purchase of T. V. set at a price higher than the market price and affixed his signature in the file would be an indicative factor to show that the petitioner was a party to conspiracy. Whether the petitioner had knowledge about the shady transactions or . not is to be proved by the prosecution only during the course of trial. But for his approval, the Government would not have suffered a great loss.
49. On the basis of these findings referring the various materials referred to above, the learned trial Judge framed two charges. The first charge is the general charge relating to conspiracy against all the accused, while the second charge is a specific charge framed against the petitioner A3. The following is the operative portion of the order framing charges against A3, the petitioner:--
In the result it is held that there are sufficient grounds to frame charges against the accused and charges should be framed as follows:--
(1) under Section 120(b) IPC r/w 13(2) r/w 13(1)(d)(ii) and (111) and 13(1)(c) of Prevention of Corruption Act, 1988 r/w 109, IPC 409 IPC,409 r/w 109,IPC against A1 to A11. (2) under Section 13(2) r/w 13(l)(d) (ii) and (iii) of Prevention of Corruption Act against A3.
50. Before dealing with first charge being a conspiracy charge framed against all the accused including the petitioner, let us first consider the second charge being specific charge, namely, Section 13(2) read with 13(1)(d)(ii) and (iii) of the P.C. Act framed against petitioner.
51. Section 13 provides thus:--
A public servant is said to commit the offence of criminal misconduct,
(a) to (c)....
(d) if he
(i)....
(i) by abusing his position as a public servant, Obtains for himself or for any other person any valuable thing or pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
(e)....
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
52. Though the charge had been framed against the petitioner under Section 13(1)(d)(ii) and (iii), the learned Public Prosecutor would submit that Section 13(1)(d)(i) of the P.C. Act isz attracted to the case of the petitioner. In the counter it is mentioned as follows:--
The respondent submits that Section 13(1)(d)(i) of the Prevention of Corruption Act is attracted in the case of the accused petitioner though the petitioner has not received any pecuniary advantage for himself.... The respondent submits that Section 13(1)(d)(i) of Prevention of Corruption Act is attracted if the accused as a public servant by abusing his official position obtains pecuniary advantage to others.
53. In view of the different charges pointed out by the learned public prosecutor, though the said charge had not been framed, let us quote the said provision also, that is, Section 13(1)(d)(i):--
A public servant is said to commit the offence of criminal misconduct, if he, by corrupt or Illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage.
54. From the reading of all the above three provisions, it is cleat that the main ingredient is that the accused being a public servant shall obtain pecuniary advantage or valuable thing either for himself or for any other person, either by abusing his position as public servant or while holding the office as public servant without any public interest. So, the obtaining the pecuniary advantage or valuable thing which is common to all these three clauses in Section 13(1)(d) is the essential element to be alleged on the basis of the materials for framing the charges.
55. In this context, the observation in the impugned order and the statement made by the respondent in the counter are relevant. In the impugned order in para 21 it is stated as follows:--
Through A3 had no obtained any pecuniary advantage for himself, he enabled others to obtain pecuniary advantage which resulted in the loss to the Government.
In the counter in para 2 it is stated as follows":--
The respondent submits that Section 13(1)(d)(i) of the Prevention of Corruption Act is attracted in the case of the accused petitioner though the petitioner has not received any pecuniary advantage for himself.
56. Thus, it is the admitted case of the prosecution that the petitioner did not receive any pecuniary advantage for himself nor obtained any money or valuable thing for others.
57. The word "obtain" as per Oxford English Dictionary, Vol. X, (page 669) would mean (a) "to come into possession or enjoyment of (something) by one's own effort, or by request; (b) to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get". Therefore, the word "obtain" signifies an active conduct on the part of the person in obtaining a thing either for himself or for others.
58. While interpreting the word "obtains", the Apex Court in Narayan Nambiar v. State of Kerala , would observe as follows (Para 10):--
"Obtains" means acquire or get.... On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself, or for any other person by abusing his position as a public servant, falls within the mischief of the said clause.
59. In view of the above legal position, in the absence of any material to show that the petitioner obtained any pecuniary advantage or valuable thing for himself or for any other person, framing of the charge under Section 13(1)(d)(ii) and (iii) or evenfor Section 13(1)(d)(i) as how projected by the prosecution in the counter filed before this Court, is not valid and as such, the said charge against the petitioner is groundleSections Consequently, the petitioner is entitled to be discharged for the said offence under Section 13(1)(d) read with 13(2) of the P.C. Act.
60. Let us now come to the charge of conspiracy framed as first charge against all the accused including A3, the petitioner herein.
61. For dealing with the question, whether the framing of the charge for conspiracy was on the basis of the materials available on record, it is quite appropriate to deal with the entire materials collected by the prosecution leading to the presentation of the charge sheet.
62. There are 123 witnesses cited in the charge sheet. From the statements recorded during the course of investigation, the documents relied upon by the prosecution and the charge sheet and the memo of evidence filed in this case, the following facts would emerge:--
(a) Al Selvi JayaLaltha was the Chief Minister of the State of Tamil Nadu during the relevant period. At the instance of Al, a Cabinet note was prepared by A2, the then Minister for Local Administration for discussion over the subject of providing colour T. V. sets for habitation in rural areas. On 20-7-1995, the Cabinet meeting was held. All the Ministers including Al Chief Minister, A2 Selvaganapathy, the Minister for Local Administration and the petitioner (A3) V. R. Nedunchezhian, the Finance Minister participated. The Cabinet decided -in favour of the proposal.
(b) Al Selvi Jayalalitha announced on 15-8-1995 on Independence Day Celebration at the Secretariat, that colour Television sets numbering 50,000 would be given to all habitations in villages involving an expenditure of Rs. 75 crores before March 1996. In October 1995, T. V. Approval Committee was constituted consisting of A4 H. M. Pandey, I.A.S., Secretary to Rural Development Department as Chairman, A5 M. Sathiyamoorthy, I.A.S., Director, Rural Development as Member Secretary and. Machendranathan, IAS, Director of Town Panchayats as a Member.
(C) On 6-10-1995 quotations were invited from the T. V. Manufacturers numbering about 197. However, only 6 T. V. Companies were allowed to participate in the process of acquiring T. Vs. following the Limited Tender System instead of open Tender System. After negotiations with these six companies, the price of one T. V. set was fixed at Rs. 14,500/- for all the T.V. Companies.
(d) Mr. Machendranathan, I.A.S., Member of the Committee objected to the procedure adopted by the Approval Committee and that the price fixed was more than the amount which was quoted by one of the six Companies. The Approval Committee conducted meetings on five occasions though was attended by the said Machendranathan, objecting to the above procedure, which is in violation of the rules, did not sign the minutes. However, this proposal was sent to the Government for approval.
(e) Mr. Rajaraman, the Finance Secretary, one of the witnesses in this case, raised number of objections on 13-11-1995 stating that Open Tender System should have been called as per the G.O. dated 22-8-1994, that the prices fixed should be compared with the market price and bulk orders should result in reduced prices and that the time limit for the receipt of quotation should have been extended and thereby" prices of T.V. sets could have been further reduced.
(f) When A10 Sasikala and All Bhaskaran came to know about the delay in the file informed A1 Selvi Jayalalitha, who instructed her Secretary Varadarajulu, I.A.S. to check up the reason for the delay in processing the file. He came to know that Mr. Rajaraman, Finance Secretary raised objections. This was informed by Varadarajulu, Secretary to the then Chief Minister on 29-11-1995. Therefore, she called a special meeting at her camp office at No. 36, Poes Garden on 30-11-1995 on a public holiday. The invitees attended are A3 Selvaganapathy, A6 Haribhaskar, then Chief Secretary, Varadarajulu, then Secretary to Chief Minister, Rajaraman, Finance Secretary, A4 H. M. Pandey, I.A.S. and A5 Sathiyamoorthy, IAS.
(g) In the said meeting, Mr. Rajaraman, Finance Secretary expLalned the objection of the Finance Department to the then Chief Minister in details. Then, the Minister for Local Administration explained the views of the Rural Development Department. After hearing the different views of the Finance, and Rural Development Departments, the then Chief Minister Selvi Jayalalitha decided to approve the proposal of the Rural Development Department to place orders for the purchase of Colour T. V. sets at the rate of Rs. 14,500/- per set with those six Companies without adopting Open Tender System, overruling the views of the Finance Department.
(h) Then, the Secretary Dr. Narayan, I.A.S. on perusing the note of the Finance Secretary instructed to prepare the revised note for circulation incorporating the points raised by Finance Department. On pro rata basis as per the instructions of the Secretary, allotment to the six Companies for the supply of various number of T. V. sets were made. Thereafter, the revised note for circulation was signed by Mr. Peter, Deputy Secretary, Rural Development Department. Then, Mr. Narayan, Rural Development Secretary signed on 9-12-1995. Afterwards, the entire file along with the revised circulation note was set to Finance Secretary Mr. Rajaraman. After perusal, he put his signature in the file.
(i) Thereafter, the file was sent to the Chief Secretary Haribhaskar (A6) who signed the file on 10-12-1995. Then, the entire file was sent to Minister for Local Administration, who also signed on the same day. On 11-12-1995 the file was sent to the Finance Minister (A3) V. R. Nedunchezhian and he signed in the file on the same day. Finally, the entire file was sent to the then Chief Minister, who signed the file on the same date. Thereafter, the draft G.O. was prepared and sent to the Finance Department. Joint Secretary, Finance made some corrections and returned the draft G.O. After corrections were carried out, the G.O. was issued on 13-12-1995 itself.
(j) After the issuance of G.O., all the T. V. Companies received 25% advance and started the supplies. After getting invoices with proof of delivery, the payments were made by the D.R.D. to the Companies. A2 Selvaganapathy, Former Minister demanded and obtained Rs. 47,00,000/- as pecuniary advantage through his P.A. Janarthanam (A7) from Uptron India Limited. A4 Pandey, IAS and A5 Sathiyamoorthy, IAS demanded and obtained Rs. 82.25 lakhs as pecuniary advantage from Uptron India Limited. A7 Janarthanam, P.A. to Selvaganapathy, Former Minister, demanded and obtained Rs. 28.56,000/- as pecuniary advantage from Keltron India Limited. A2 Selvaganapathy demanded and obtained pecuniary advantage from Videocon Agent Rs. 1,41,72,000/- through his P.A. Janarthanam. A4 Pandey, I.A.S. demanded and received pecuniary advantage of Rs. 37,79,200/- from Videocon Agent, A5 Sathiyamoorthy demanded and obtained pecuniary advantage of Rs. 56,68,800/- from Videocon Agent. A7 Janarthanam, P.A. demanded and obtained Rs. 10,00,000/- as pecuniary advantage from the Agent of Solidaire T.V. Company. A2 Selvaganapathy demanded and obtained Rs. 4,72,00,000/-as pecuniary advantage from B.P.L. Agent. A4 Pandey, obtained Rs. 30,00,000/- and A4 Sathiyamoorthy obtained Rupees 40,00,000/- from B.P.L. Agents, through A8 Duraisamy, who took Rs. 5,00,000/- for himself. All Bhaskaran demanded and obtained Rs. 30,00,000/- from B.P.L. Agent. A6 Haribhaskar, the then Chief Secretary obtained Rs. 35,00,000/- from B.P.L. Agent as pecuniary advantage through A9 Muthukumarasamy.
63. In the light of the above facts, the learned Public Prosecutor would submit by referring Section 10 of the Evidence Act, that for the purpose of proving the conspiracy, it is not necessary that there should be a direct proof of fact that the conspirators actually met and that since the petitioner being a Finance Minister signed in the file, even though the said file contained the objection of the Finance Secretary and that even after perusing the objection, the act of signing would tantamount an illegal omission, an overt act, which was done in pursuance of the conspiracy and as such, the framing of the charge for conspiracy was legal.
64. In the impugned order passed by the trial Judge also it is observed, while refer-, ring the materials for conspiracy, as follows:--
As far as A3 is concerned, he had not taken into consideration several objections raised by his own Finance Department. Having known very well that the Finance Secretary objected to the illegal price hike of Rs. 2,000/- per set, A3, the then Finance Minister simply cleared the proposal for purchase of T. V. on 11-12-95.... Conspiracy in general is hatched secretely. Only from the attendant circumstances and attitude of the persons involved in the conspiracy one can, gather the existence of a criminal conspiracy.... The plea as to whether the 3rd accused had knowledge about the shady transactions or not should be proved or established only during the course of the trial.
65. Before going into the question as to whether the finding with reference to the charge of conspiracy and the submissions made by the Public Prosecutor is correct or not, let us now understand the ingredients of criminal conspiracy as defined in Section 120A of the Indian Penal Code.
66. In this connection, it is relevant to note that Sections 120A and 120B, which are the two sections in Chapter 5-A of IPC came to be introduced by the Criminal Law Amendment Act of 1913. The Statement of Objects and Reasons stated that a need was felt for the same to make conspiracy a substantive offence.
67. Section 120A defines criminal conspiracy as below:
120-A. Definition of criminal cons-piracy:-- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation:-- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
This definition shows that conspiracy consists in either doing an illegal act or a legal act by illegal means.
68. Section 120B, IPC is the penal section, which provides thus:--
120-B. Punishment of criminal conspiracy.-- (1) Whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
69. It is true that the conspiracy may be a chain, where each party performs even without the knowledge of the other, a role that aids or abets succeeding parties in accomplishing the criminal objectives of the conspiracy. For example, in a case of smuggling, what is done in the process of procuring and distributing narcotics or smuggled goods for sale in different parts of the globe? In such a case, these smugglers, middlemen, retailers are privies to a single conspiracy to smuggle and distribute narcotics. These smugglers know that the middlemen must sell to retailers; and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end at the chain know that the unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with their settlers. The action of each has to be considered as a spoke in the hub-there being a rim to bind all the spokes together in a single conspiracy. While referring this example, the Apex Court in (1996) 2 Crimes 64 : 1996 Cri LJ 2448 (SC) (supra) would observe as follows (at p. 2453 of Cri LJ):--
To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of lawful use being made of the goods or services in question may be inferred from the knowledge itself.... Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.
70. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review 1974, 297 at 299) expLalns the limited nature of this proposition:
Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is necessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been an express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done.
71. It is a well-recognised principle of criminal jurisprudence that there cannot be any presumption in favour of the prosecution. There is only one presumption and that is a sine qua non of the criminal jurisprudence and it is with regard to the innocence of the accused. The onus to prove the guilt of the accused beyond any shadow of doubt is always on the prosecution. However, in a case under the present Act, the onus would shift on the accused only in those discerning few cases where the accused accepts gratification other than legal remuneration under Section 20 of the Act. The said burden would shift on the accused only when it is shown that the accused has accepted or obtained illegal gratification as a motive or reward.
72. As we all know, conspiracy consists simply in the agreement or confideracy to commit an offence. It is not an ingredient of the offence under Section 120B that all the parties should agree to do a single act. It may, in fact, comprise the commission of a number of acts. It is also not necessary that each member of the conspiracy must know all the details of conspiracy. Although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so to carry it into execution. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. It is not necessary to prove that the conspirators actually met; nor is it necessary to show that they communicated in any way. In fact, the Court may infer a conspiracy even though the conspirator may not have even known each other.
73. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others, it will not affect the culpability of those others, when they are associated with the object of the conspiracy.
74. In a criminal conspiracy, what is to be proved is agreement and common design. It is true that this proof need not be by direct evidence and that existence of a conspiracy may even be a matter of inference deduced from criminal acts done in pursuance of a common criminal purpose.
75. To constitute a single conspiracy there must be a common design and a common intention of all to work in furtherance of the common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some way drop out and some may join at a later stage. But the conspiracy continues until it is broken up. The conspiracy may develop in successive stages.
76. The above principles have been Lald down in the following decisions:--
(1) Kehar Singh v. State (Delhi Admn.) ;
(2) Ajay Malik v. State (1997) 1 Cur Cri R 61 (Delhi);
(3) Yash Pal Mittal v. State of Punjab ;
(4) In Re Kodur Thimma Reddy AIR 1957 Andh Pra 758 : 1957 Cri LJ 1091;
(5) Mohd. Hussdain Umar Kochra v. K.S. Dilip Singh .
77. Let us now refer Section 10 of the Evidence Act.
78. Section 10 of the Evidence Act reads as under:
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
79. It is observed by the Apex Court, while dealing with Section 10 of the Evidence Act, in Natwarlal Sakarlal Mody v. State of Bombay (1963) 65 Bom LR 660 (SC) as follows:--
This section lays down a rule of evidence and its application is strictly conditioned by the existence of reasonable ground to believe that two or more persons have conspired together to commit an offence. The opening words of the section laying down a condition and the qualification Lald down in the body of the section in regard to admissible acts, this is, they should be in reference to their common intention and also should have been committed, after the time when such intention was first entertained, indicate that the existence of a conspiracy must be established by prima facie evidence before the acts done or things written by any of the persons can be used as evidence against the others or for the purpose of proving the existence of the conspiracy.... Shortly stated. before the section can be invoked, as a general rule, some prima facie evidence should be placed before the Court to enable it to form and opinion that there is reasonable ground to believe that two or more persons have conspired together; and if that condition is fulfilled the acts and declarations of a conspirator against his fellow conspirators may be admitted as evidence.
80. We may point out that under the principle contained in Section 10 of the Evidence Act, once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other. For application of Section 10 of the Evidence Act, the knowledge of the conspiracy of the conspirator shall be proved.
81. For application of Section 10 of the Evidence Act, there must be a reasonable ground to believe conspiracy exists and certain persons are the conspirators. The prosecution, for application of Section 10 of the Evidence Act, must show that there is a conspiracy in between the accused and another on the one hand, and on the other hand, a conspiracy in between the said another and others to commit certain actionable wrong or offence. If there is no evidence on record except the signature of the accused in file, prima facie to prove the factum of conspiracy, and there is no evidence to prima facie suggest that the signature was made by the accused in reference to the common design of the conspirator after it was first entertained. Section 10 of the Evidence Act is of no use.
82. The above principles have been Lald down in Shivanarayan v. State of Maharashtra .
83. Bearing this legal position in mind, let us now go into the materials available on record as against the petitioner in regard to the first charge framed.
84. In the instant case, the part played by the petitioner is that he signed in the file on 11-12-1995. The witnesses who speak about the putting of signature by the petitioner on 11-12-1995 and the relevant file in which the signature is found are being relied upon by the prosecution to connect the petitioner with the conspiracy charge. It is mentioned in the impugned order that having known very well that the Finance Secretary objected to the illegal price hike of Rupees 2,000/- per T. V. set, A3, the then Finance Minister simply cleared the proposal for pursuance of T. V. by signing the file on 11-12-1995. So, the main part attributed to the petitioner is that he did not take into consideration the objection of his own Department. The main witness who speaks about the objection is Rajaraman, Finance Secretary. Mr. Rajaraman has given statement under Section 161, Cr. P.C. before the investigating Officer as well as 164 before the Magistrate. He would state in both the statements that when the proposal came from the T. V. Advisory Committee after getting the views of Rural Development Department, as a Finance Secretary he raised several objections on 13-11-1995, since the fixing the price as Rs. 14,500/- in a Limited Tender System and payment of 25% advance would amount to violating the rules under relevant G.Os. and that on 30-11-1995, the then Chief Minister called the Secretary of the Finance Department as well as the other officials in Rural Development and Minister for Rural Development including the Chief Secretary and that in that meeting also Rajaraman raised a similar objection. But, the then Chief Minister after hearing the different, views of both the Departments, namely, Finance Department and Rural Development Department, overruling the objection of the Finance Department and directed to approve the proposal of the Advisory Committee for purchase of the T. V. sets in Limited Tender System for the said price accepting the views of the Rural Development Department. Only thereafter, the revised note was prepared by the Deputy Secretary of Rural Development, one Peter, a witness in this case and the same was signed by him on 9-12-1995. The entire file was sent to the Finance Secretary Rajaraman on the same day. Though the objection was raised by the Finance Secretary earlier, he put his signature on 9-12-1995 on the revised note and thereafter, the file was sent to the Chief Secretary, who in turn signed on 10-12-1995. On the same day, A2 Selvaganapathy, then Minister for Local Administration also signed. Afterwards, the file was sent to the petitioner (A3). On 11-12-1995 he signed and then the file went to the Former Chief Minister, who signed the file immediately on the same day. Therefore, the perusal of the file and the revised note of the circular and the statements of Rajaraman under Sections 161 and 164, Cr. P.C. and the statements of other witnesses would clearly show that the objection raised by the Finance Secretary on two occasions were overruled by the then Chief Minister on 30-11-1995 and only thereafter, the Finance Secretary signed the file on 9-12-1995 and Finance Minister (A3) signed on 11-12-1995.
85. In view of the fact situation, it cannot be contended that the petitioner simply cleared the file though it was objected to by the Finance Secretary. And a matter of fact, as indicated above, the objections and overruling the said objections by then Chief Minister and the revised note for circulation as per the direction of former Chief Minister and the signature of the Finance Secretary on the revised note are all found available in the record. More important thing is, the petitioner even while putting the signature in the file, put his signature only below the signature of the Minister for Local Administration, that too, on 11-12-1995, that is, two days later to the signature put by the Finance Secretary in the file.
86. The only material on the basis of which the charge of conspiracy was framed, as pointed out in the impugned order and the learned Public Prosecutor, is the failure on the part of the Finance Minister to take into consideration of the objection raised by his Finance Secretary and simply cleared the file on 11-12-1995 by signing the same, which tantamounts to an illegal omission, an overt act, which was done in pursuance of the conspiracy.
87. The trial Judge, while relying upon the said material, has overlooked the very important factor that the objection raised by the Finance Secretary earlier was overruled by the former Chief Minister as early as 30-11-1995 and then on the direction of the former Chief Minister the revised note was prepared by the Secretary of the Rural Development Department and the same was signed by the Rural Development Department Secretary and the Finance Secretary on 9-12-1995 and that when Finance Secretary signed on 9-12-1995, he did not raise any objection, since it was a revised note as per the direction of former Chief Minister and thereafter the file was signed by the other officials and other Ministers and on 11-12-1995 the file was circulated to the finance Minister, who in turn perused the file and signed the same on the same date, as there was no fresh objection raised by the Finance Secretary. Therefore, the question of illegal omission to take into consideration the objection raised by the Finance Secretary does not arise. When there was no illegal omission, it cannot be said that the petitioner had knowledge about the conspiracy alleged to have been hatched by others.
88. In my opinion, after considering the entire records and the statements of the witnesses, the case of the petitioner (A3) will have to be separated from that of the rest of the accused regarding the existence of an agreement to do an illegal act. If at all, there was such an agreement, it has to be inferred from the evidence on record or from the overt act, it can be attributed to the other persons. But, it cannot be said that the petitioner (A3) knew about the agreement.
89. As stated earlier, the participation in the acts shall be with the knowledge about the existence of the agreement to commit an illegal act, that is, conspiracy. The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or the other of the acts described in the section. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence. It can be established by direct evidence or by circumstantial evidence. But, Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions Lald down therein are satisfied , the act done by one is admissible against the co-conspirators. As indicated earlier, Section 10 of the Evidence Act, as the opening words show, will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to the conspiracy before his acts can be used against the co-conspirators.
90. With this background, we have to see the part played by the petitioner, in order to find out whether he was a party to the conspiracy with the knowledge regarding the existence of a conspiracy to do an illegal act.
91. The petitioner though he was the Finance Minister, was never contacted and consulted with reference to the file circulated by the Secretary of the Rural Development Department regarding the approval of the proposal to accept for the purchase of T.V. sets at the hike price of Rs. 2,000/- per set. The file was sent to the Finance Secretary alone. The Finance Secretary after recording his objection on 13-11 -1995 did not send the file to the Finance Minister, whereas he sent it back to the Rural Development Department Secretary. When this objection was brought to the notice of the former Chief Minister by the other accused, the Private Secretary contacted the Finance Secretary and collected informations regarding the , nature of the objection. This has let to the convening of a meeting at the residence of the then Chief Minister. In the meeting, the very same objection was raised by the Finance Secretary. However, the former Chief Minister overruled the objection and accepted the view of the Local Administration Minister and approved his views and directed to send the revised file. In this context, it is to be pointed out that the Finance Minis Ler was never consulted and invited with reference to this proposal, whereas the Finance Secretary alone was invited. Though the Minister for Local Administration was called to the meeting and he was allowed to give his views for approval of the price hike of Rs. 2,000/-, there is no reason as to why the Finance Minister was not called.
92. It is not the case of the prosecution that at any time, the Finance Minister asked his Finance Secretary, who is a subordinate, not to raise those objections. It is also not the case of the prosecution that he only overruled the objection by accepting the view of the Rural Development Department and sent the file to the former Chief Minister by signing the same. It is a clear stand taken by the prosecution on the basis of the materials, that the objection raised by the Finance Secretary was overruled by the former Chief Minister and then revised note was prepared under the direction and the same was signed by the Finance Secretary without raising any objection thereafter and then only it was signed by the officials concerned and the Minister for Local Administration and then by the petitioner in the capacity as Finance Minister.
93. Under these circumstances, it is clear from the materials that the Finance Minister did not come into the picture at all till the revised note was sent for the signature of the Finance Minister after overruling the objection of the Finance Secretary. Further, it cannot be inferred that the petitioner has got any knowledge about the alleged conspiracy hatched by the other accused in this case. As stated earlier, only when there is a prima facie case for the knowledge about the existence of the agreement to do an illegal act is made out, then alone all the acts committed by the other accused would be admissible as against the petitioner under Section 10 of the Evidence Act.
94. It is no doubt true that even a strong suspicion would be sufficient to frame the charge for the alleged conspiracy. In fact, the charge of conspiracy is a substantive, specific, individual charge. Even when there is no material for the other offence, namely, Section 13(1)(d) of P.C. Act, if there are some materials which would lead to form a presumptive opinion as to the existence of the factual ingredients constituting the offence of conspiracy, then it would certainly justify the framing of the charge against the petitioner. This however, requires very strong suspicion which must be founded upon the materials placed before the trial Judge.
95. But, in view of the foregoing discussion, there is not even a suspicion as against the petitioner, in the light of the chronological happenings as narrated by the witnesses in this case.
96. The learned Public Prosecutor would cite the decision in Shree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia 1989 (1) SCC 751 and point out the following observation:--
If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice which stares the Court in the face.
97. The case referred to in the said judgment relates to the discharge of one Nathumal and Dilip. The trial Court discharged Nathumal in a case of offence under Section 302, I.P.C. The State filed a revision challenging the validity of discharge of Nathumal. The other accused Dilip filed a revision before the High Court of Bombay against the order of framing of charge against him. The High Court of Bombay dismissed the revision preferred by the State, while accepting the revision of Dilip. When these orders were challenged in the Apex Court, the Apex Court held that the High Court of Bombay went wrong in discharging Dilip, as there are some materials against him. However, the Apex Court would hold, in so far as Nathumal is concerned, mere failure of Nathumal being the manager of the family to protect Chanda, the deceased and safeguard her rights by performing his moral obligation, without anything more is not sufficient to frame a charge against him. With this observation, the discharge of Nathumal was confirmed by the Apex Court.
98. The above decision, in a way, helps the petitioner. In this case also, there is only a signature put by the petitioner in the file subsequent to the direction of the Chief Minister to send the revised note. Therefore, that act putting signature, that too, after the direction of the then Chief Minister, without anything more is not a material at all to frame a charge against him, as it cannot be said to be the outcome of abetment and conspiracy.
99. I thus, conclude that there is no material against the petitioner so as to entitle the trial Judge to frame charge of conspiracy as stated above. In these circumstances, the petitioner is entitled to succeed. The revision is allowed. The order dated 14-5-1998 in C.C.No. 15 of 1997 on the file of XII Additional Special Judge, Chennai, is set aside and the petitioner is discharged. Consequently, Crl. M.P. No. 6212 stands closed.
100. Before parting with the case, I shall mention that the observations about other accused were made only for the limited purpose of disposal of this revision. Therefore, the trial Judge shall dispose of the matter by proceeding the case with the other accused uninfluenced by any of the observations made above referring about others.