Madras High Court
P.Sundararajan vs The Registrar [Vigilance on 27 February, 2012
Bench: K.N.Basha, N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.02.2012 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA AND THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR WP.No.19894 of 2011 M.P.Nos.1 & 5 of 2011 & MP.SR.No.15082/2012 in WP.No.19894/2011 P.Sundararajan .. Petitioner Versus 1. The Registrar [Vigilance] Madras High Court, Chennai 104. 2. N.Sundaresan .. Respondents (R-2 impleaded as per the order of this court dated 22.09.2011 in MP.No.3/2011 in WP.No.19894/2011) Writ Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondent to commence a statutory investigation by registering an FIR on his complaint dated 18.08.2011 and submit a preliminary report about the alleged bribe-tapes and financial transactions discussed in the tapes, and if the report confirms payment of bribes paid to the trial Judge by the accused, then to order a re-trial of Sessions Case No.94 of 2005 on the file of the Principal Sessions Judge, Pondicherry by any other Judge in Pondicherry. For Petitioner : Mr.Manikandan Vathan Chettiar For 1st Respondent : Mr.R.Muthukumaraswamy, Senior Counsel for Mr.R.Suresh Kumar For 2nd Respondent : Mr.AR.L.Sundaresan, Senior Counsel for Mr.K.Arivunithi O R D E R
K.N.BASHA, J.
This petition is posted before this Court as "specially ordered matter" in view of the order passed by the learned Single Judge to the effect that the matter relating to a Judicial Officer is to be heard only by a Division Bench as per the procedure followed by this Court and hence, the writ petition is before this Bench as per the orders of the Hon'ble Chief Justice.
2. By consent of both sides, the writ petition itself was taken up for disposal on 6.2.2012. Mr.Manikandan Vathan Chettiar, learned counsel appearing for the petitioner made his arguments for the whole day, i.e., from 10.45 a.m. to 6.15 p.m. Thereafter, Mr.R.Muthukumaraswamy, learned Senior counsel appearing for the 1st respondent and Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the 2nd respondent made their respective submissions. After hearing both sides at length, we have reserved the case for orders on 06.02.2012 itself.
3. The petitioner is a practicing Advocate and he has filed this writ petition on the basis of the complaint preferred by him dated 18.08.2011 relating to the alleged conversation purported to be between the present trial judge and the first accused in S.C.No.94 of 2005 on the file of the learned Principal Sessions Judge (Chief Judge), Puducherry for the offence u/s.302 IPC and other offences. Now, the case is at the stage of advancing arguments.
4.a. The petitioner has stated in his affidavit about the facts of the murder case and as per the said statement, the occurrence in the said murder case is said to have taken place on 03.09.2004 at Varadharaja Perumal Temple at Kanchipuram. In the said case, Kanchi Sankaracharya Jeyendrar Saraswathi was implicated as the first accused out of 24 accused. Originally the said murder case was pending for trial in SC.No.94/2005 before the Sessions Court, Chennai and the same was transferred to the Principal Sessions Court, Puducherry pursuant to the orders passed by the Hon'ble Apex Court and a Special Public Prosecutor was also appointed by the Government of Puducherry. Thereafter, the trial was commenced and totally there are 189 witnesses out of whom 95 witnesses have been examined and cross-examined before the predecessor of the present trial judge. Before the present trial judge the remaining witnesses have been examined and cross-examined and after questioning the accused u/s.313 Cr.P.C., the case is posted for final arguments on 05.09.2011 before the present incumbent, viz., the trial judge.
4.b. At that juncture, the petitioner preferred a complaint to the 1st respondent on 18.08.2011 making certain allegations and the contents of the complaint are as follows:-
"Sub:-Suspected offences punishable under the PCA 1988 and / or IPC Reg.
***** [1] Of late telephonic conversations purporting to be between the trial Judge Mr.Ramasamy, of Pondicherry, his devotee/daughter, and two others are being circulated, discussing monetary payments, and promised payments.
[2] You have had the opportunity of hearing the same and transcribing the same, as informed by you during our discussions last week.
[3] The matter has attained a crisis state, since arguments in the Sankaracharya trial is scheduled for 05.09.2011 as per his orders yesterday.
[4] Unless you register a case, and act swiftly, the High Court may unwittingly facilitate completion of the corrupt practice by its inaction or delayed action.
[5] The money-trail may get obliterated if there is delay or defects in investigation.
[6] If there is any doubt regarding the authenticity of the tapes, and if you are technically ill-equipped to research the genuineness, kindly secure me voice samples, so that I can get its genuineness authenticated or otherwise from private labs in the field.
[7] If the tapes are not genuine also, you have a duty to probe them since the fabrication of such tapes, [if it is not genuine] amounts to an assault on the majesty of this great institution, and we as members of the same, cannot be mute spectators.
I therefore request you to kindly cause registration of an FIR and probe the tapes so as to deter criminals from bribing judges and getting away or for fabricating tapes to tarnish the judiciary."
4.c. According to the petitioner, he enquired the Registry about his complaint dated 18.08.2011. He was informed by the 1st respondent that the matter had already been brought to the notice of the Hon'ble Chief Justice. He further stated that the 1st respondent informed him that a judicial officer had been appointed to look into the allegations made in the complaint. The petitioner would further state in the affidavit that the 1st respondent declined to disclose the identity of the judicial officer and also about the nature of the enquiry ordered by the High Court. In the meanwhile, according to the petitioner, the Sessions Case was listed before the very same Trial Judge for arguments on 05.09.2011. In those circumstances, according to the petitioner, he was compelled to file the present writ petition.
4.d. In this writ petition, the petitioner's prayer is as follows:-
"to issue a writ of mandamus directing the respondent to commence a statutory investigation by registering an FIR on his complaint dated 18.08.2011 and submit a preliminary report about the alleged bribe-tapes and financial transactions discussed in the tapes, and if the report confirms payment of bribes paid to the trial Judge by the accused, then to order a re-trial of Sessions Case 94/2005 on the file of the Principal Sessions Judge, Pondicherry by any other Judge in Pondicherry."
4.e. According to the affidavit filed in support of the petition, inter alia, in paragraphs 10 and 11, the petitioner has averred as follows:-
"10.Once again various tapes containing conversations purported to be those of the Shankaracharya, his aide/daughter, 2 mediators and the said Judge and/or his representative has emerged discussing payments made and assuring balance sums payable by Shankaracharya. To understand the purport of the discussion, it is imperative that it is heard in toto, and I shall play it for the court during the hearings.
11.Similar to the leak of the video tapes, the latest leaked tapes are conference calls recorded by one of the parties to the discussions, and put in the public domain, either due to financial betrayal or owing to awakening of the inner conscience of a conversationist, who then turned a whistle-blower, staking his life."
4.f. The other averments made in the affidavit are not very relevant or material in respect of the allegations contained in the complaint dated 18.08.2011.
4.g. As we have already noticed, the request of the petitioner is for a mandamus to commence a statutory investigation by registering the First Information Report on the complaint of the petitioner dated 18.08.2011 and also to order for re-trial in SC.No.94/2005 in the event of the conversations which are alleged in the complaint are found to be true.
5. The 1st respondent has filed a counter affidavit wherein it is contended as follows:
(a) It is true that the petitioner made a complaint to the 1st respondent on 18.08.2011 as stated by the petitioner in his affidavit. Apart from the said complaint, one Mr.S.Doraisamy, a practicing Advocate of this court, also submitted a letter dated 05.08.2011 seeking information under the Right to Information Act, 2005. Along with the said letter, Mr.S.Doraisamy, Advocate had enclosed a Compact Disc [CD] which allegedly contained the conversation of three persons. The informations sought for are as follows:-
"1. Whether the voices are that of Sankarachari Jeyendrara Saraswathi of Kanchi Mutt and Mr.Ramasamy, Pondicherry District Judge ?
2. If so, whether the money transaction is illegal gratification for acquitting Sankarachari Jeyendrara Saraswathi of Kanchi Mutt in Sankararaman murder case ?
3. If so, what action you have proposed to take against Mr.Ramasamy for receiving the bribe and against Sankarachari Jeyedrara Saraswathi for attempting to bribe the judge ?
4. Whether any money was paid as per the conversation ?
5. Who is the lady who is talking to "Periyava", whether she is related to "Periyava" and what is their relationship.?"
(b) The further averments in the counter affidavit of the 1st respondent are that the letter of Mr.S.Doraisamy, Advocate dated 05.08.2011 and the complaint of the petitioner dated 18.08.2011 were ordered to be placed before the Administrative Committee of this court for necessary action. Accordingly, the Administrative Committee, in the Meeting held on 24.08.2011, considered both the above and resolved to nominate one K.Audinathan, a Selection Grade District Judge, functioning as Administrator General and Official Trustee as Enquiry Officer, to enquire into the allegations made in the complaint and if need be, to examine the CD in question and to submit a detailed report within a period of one month from that date. After holding necessary enquiry, the Enquiry Officer submitted a report on 19.09.2011. The same was placed before the Administrative Committee again. The Administrative Committee in its Minutes held on 14.10.2011 directed to place the Enquiry Report before the court in view of the pendency of this writ petition.
(c) It is further stated in the counter affidavit that the High Court in its reference D.O.Lr.No.47/2011-Con.B2 dated 21.12.2011 addressed to the Government of Puducherry for repatriation of the trial Judge, viz., The Chief Judge, Pondicherry, who is on deputation to the Pondicherry Judicial Service, for issuance of transfer and posting orders by the High Court by shifting him from the post of Chief Judge, Pondicherry to the post of Principal District Judge, Perambalur and the concurrence of the Government of Puducherry is still awaited.
(d) It is also stated in the counter affidavit that all the petitions filed in the Administrative side, i.e., in the Vigilance Cell of the High Court, alleging the irregularities / corrupt practices of the judicial officers are promptly acted. It is further stated that in a Full Court held on 19.07.1993, it has been resolved that all the files dealt with by the Vigilance Cell of the High Court, Madras, have to be placed only before the Hon'ble Chief Justice of the High Court for orders. Considering the veracity of the allegations in the complaints/petitions, they are initially placed before a Committee known as Vigilance Committee and thereafter, with the Minutes of the Vigilance Committee, the file is put up before the Administrative Committee and if so directed, before the Full Court. Further action on the complaints such as conduct of enquiry, secret probe etc., are carried out as per the directions issued by the respective Committee in the Office Note moved by the Registrar [Vigilance]. The said procedure, as has been followed, has been adopted in consonance with the Judges Protection Act, 1985 and also the Contempt of Courts Act, 1971.
(e) It is further stated in the counter that the above stated procedure, being followed, in respect of the complaints against judicial officers cannot be equated to the complaints against any other individual which are normally investigated by the police. The functions of the judicial officers are totally different from that of others and therefore, a different set of procedure is being followed. The High Court is constitutionally empowered to have control over the subordinate Courts under Article 235 and more specifically, it has got disciplinary control over the Presiding Officers of the subordinate Courts as held in High Court of Judicature at Rajasthan Vs. Rameschand Paliwal reported in 1990 [3] SCC 72.
(f) In effect, in the counter-affidavit it is stated that all necessary actions have been taken on the complaint of the petitioner dated 18.08.2011 and on the letter of Mr.S.Doraisamy, Advocate, dated 05.08.2011 by following the well established procedure being followed by the High Court. Lastly, it is stated that a prompt and swift action was taken on the complaint preferred by the petitioner dated 18.08.2011 and according to the 1st respondent, the writ petition deserves to be dismissed.
6. Originally in this writ petition, the 1st respondent alone was arrayed as the respondent. During the pendency of this writ petition, the third accused in the murder case in SC.No.94/2005 Mr.N.Sunderesan, filed MP.No.3/2011 seeking to implead himself as one of the respondents in this writ petition. The said petition was allowed on 22.09.2011 and accordingly, he has been arrayed as the 2nd respondent. In the meanwhile, this court has granted an order of interim stay by the order dated 25.08.2011 staying all further proceedings in SC.No.94/2005. The 2nd respondent has filed a petition to vacate the stay granted by this court on 25.08.2011. According to him, the trial of the case in SC.No.94/2005 has reached the stage of final arguments after passing through several hurdles. According to him, the present writ petition has been filed only with a view to drag on the proceedings. He has also questioned the locus standi of the petitioner to file the present writ petition because he is not an aggrieved person as he has in no way connected with the criminal case. According to the 2nd respondent, the writ petition deserves to be dismissed.
7. On the above rival contentions made in the respective affidavits, Mr.Manikandan Vathan Chettiar, learned counsel appearing for the petitioner advanced arguments at length touching upon various points. He has elaborately narrated the facts of the murder case and about the seriousness and gravity of the charges levelled against the accused apart from the main issue involved in this writ petition and put forward the following contentions:-
[a] The complaint preferred by the petitioner dated 18.08.2011 requires a formal statutory investigation by registering FIR as per the provision under Section 154 of the Code of Criminal Procedure.
[b] The 1st respondent has not taken any steps to take the sample voices of the concerned persons mentioned in the complaint dated 18.08.2011 in order to find out the genuineness of the said discussions in the audio conference calls.
[c] The Enquiry Officer has not disclosed his identity and satisfied the petitioner that he is authorized to conduct the enquiry and as such, the petitioner has declined to give any statement.
[d] Even assuming that the Enquiry Officer is the authorized person and competent to conduct the enquiry, he is not well versed in computer applications nor he is a person having knowledge in Cyber Crimes and he does not possess the power to conduct investigation.
[e] The petitioner is mainly interested in finding out the truth and if the involvement of the persons mentioned in the complaint is made out, a re-trial of the murder case by another Judge in Puducherry is to be ordered.
[f] If the audio conference call is proved to be a fabricated one, then it is open for taking action against such culprits.
[g] A copy of the Enquiry Report is not furnished to the petitioner and thereby, the petitioner has been deprived of his opportunity to put forward his contentions effectively.
[h] By placing reliance on the principles laid down by the Honble Apex Court in BEST BAKERYs case [ZAHIRA HABIBULLAH SHEIKH Vs. STATE OF GUJARAT reported in 2004 [4] SCC 158], the petitioner is anxious for ordering re-trial in the interest of justice.
8. Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the 1st respondent, while elaborating the actions taken on the complaint of the petitioner and on the letter submitted by Mr.S.Doraisamy, advocate, would refute the contentions of the learned counsel for the petitioner and submitted the following:-
[a] The complaint preferred by the petitioner against a judicial officer cannot be equated to a case relating to an offence falling within the scope of section 154 of the Code of Criminal Procedure warranting investigation by the police. According to him, the judicial officers stand in a different pedestal. That is the reason why, they are not subjected to the jurisdiction of the ordinary police. Further, according to him, to safeguard the majesty of the judiciary and to protect the faith of the people in the judiciary, a separate procedure has been adopted by the High Court for enquiring into the complaints against the judicial officers and the action to be taken against them as per the Full Court Resolution dated 19.07.1993. Therefore, according to him, no investigation, required u/s.154 of the Code of Criminal Procedure, could be ordered in this matter on the complaint of the petitioner.
[b] It is not correct that no action was taken on the complaint of the petitioner dated 18.08.2011 in order to find out the genuineness of the alleged discussions recorded in the CD. As stated in the counter, according to the learned Senior Counsel, prompt and swift action was taken and in order to find out the correctness of the allegations made in the complaint, an enquiry was ordered by a senior Selection Grade District Judge.
[c] Summons were sent to both the petitioner as well as Mr.S.Doraisamy, Advocate. Mr.S.Doraisamy, Advocate appeared on the fixed day, i.e., 06.09.2011 at 3.00 p.m. and made his statement. On the other hand, the petitioner, though appeared before the Enquiry officer on 06.09.2011, has questioned the competency and identity of the Enquiry Officer and refused to give any statement.
[d] The Enquiry Officer conducted the enquiry by following the proper procedure and submitted his report after obtaining the information from the Forensic Science Department.
[e] In respect of the re-trial sought for by the petitioner, it is contended that the present trial Judge is under the Orders of Transfer and further proceedings is going to be commenced only by the successor of the present trial judge.
[f] The High Court is having control over the subordinate judicial officers as per Article 235 of the Constitution of India and as per Article 229, the Hon'ble Chief Justice is having control and supervision over the staff of the High Court.
[g] The petitioner has no locus standi to file the writ petition as he has nothing to do with the murder case and the writ petition itself is purported to have been filed as a PIL [Public Interest Litigation], but the conditions for entertaining a Public Interest Litigation Petition is not made out by the petitioner.
Learned Senior Counsel, in order to substantiate his contentions, would place reliance on the following decisions:-
[a] (1974) 2 SCC 831 (Samesher Singh v. State of Punjab) [b] (2012) 1 MLJ 289 (Registrar (General) v. R.Perachi) [c] (1996) 1 MLJ 153 (The Registrar, High Court, Madras v. A.K.Vasudevan) [d] (1998) 3 SCC 72 : AIR 1998 SC 1079 (High Court of Judicature, Rajasthan v. Ramesh Chand Paliwal) [e] JT 2002 [8] SC 133 (Uttar Pradesh Judicial Officers' Association v. Union of India)
9.a. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the second respondent would submit that the petitioner who has got nothing to do with the criminal case, has no locus standi at all to file the present writ petition. It is contended that the petitioner has come forward with this petition only with an ulterior motive to stall the proceedings by raising mere suspicion. It is further submitted that out of 189 witnesses, P.Ws.1 to 95 including the star witnesses, viz., one Padma [P.W.1], the wife of the deceased and others have already been examined by the predecessor of the present trial judge and witnesses 96 to 189 were examined before the present Sessions Judge between 02.04.2009 and 17.06.2010.
9.b. The learned Senior Counsel submitted that one of the listed witnesses, viz., S.P.Saktivelu, has filed a writ petition in WP.No.7575 of 2011 and sought for the relief of directing the respondents therein to take steps under Section 308 of Code of Criminal Procedure against the approver, who was treated as hostile and to re-examine the petitioner as a witness in the murder case and the said petition was dismissed by this court by order dated 23.03.2011. It is contended that the writ petitioner in the said matter himself is an investigating officer and he has been furnished with all the necessary papers and his evidence was fixed to be recorded on 05.04.2011 and as such, he cannot have any grievance for filing such writ petition and this court pointed out the said factor and further pointed out that the learned Public Prosecutor has already taken steps as per the provision under section 308[1] of the Code of Criminal Procedure and stated that the High Court cannot entertain the petition filed by the petitioner and further held that it is open to the petitioner therein to challenge the final judgment, if he is having any grievance. Learned Senior Counsel would also submit that this court has considered the Judgment of the Honble Apex Court in Best Bakerys case [cited supra] and held that in the said case, the Hon'ble Apex Court, only after appreciating the evidence available on record through the deposition of the witnesses, came to the conclusion that the manner in which the evidence was recorded and the manner in which the witnesses were treated hostile, were not in accordance with the established principles of law. It is submitted that this court in the said writ petition, has arrived at the conclusion that once the investigation is completed and the trial is in progress, the scope of the High Court to interfere is certainly limited and ultimately, dismissed the petition observing that the parties are entitled to question the validity of the judgment after the same was delivered.
9.c. The learned Senior counsel would point out that the said writ petitioner, viz., witness S.P.Saktivelu, was already examined and he has not made any grievance or plea before the learned Trial Judge. It is submitted that the grievance of the petitioner in this case is only against the present trial judge and all the star witnesses, including the widow of the deceased have already been examined by the predecessor of the present trial judge and only the remaining witnesses have been examined by the present trial judge and as on date, even the present trial judge is also under the orders of transfer. Therefore, there is no justification for the petitioner to stall the proceedings. He would also submit that if the allegation of tape is proved, action may be taken against the judicial officer concerned. It is further contended that the petitioner has not impleaded the necessary and proper parties, particularly, 24 accused in this case and because of the stay granted in this matter, the said accused have been deprived of their right to speedy trial as they are undergoing the ordeal of trial for the last more than six years.
10. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record including the complaint preferred by the petitioner dated 18.08.2011; the letter submitted by Mr.S.Doraisamy, Advocate dated 05.08.2011; the enquiry report submitted on 19.09.2011; and the decisions cited by both sides.
11. At the outset, it is to be stated that the petitioner has got nothing to do either with the family of the deceased or in respect of the murder case pending in SC.No.94/2005 on the file of the learned Principal Sessions Judge [Chief Judge], Puducherry. Admittedly, he is a total stranger to the proceedings. Further, the petitioner has come forward with a complaint dated 18.08.2011 making vague and bald allegations. He has not even stated in the said complaint as to how and through what source, he came to know about the alleged telephonic conversation purported to be between the trial Judge, his aide/daughter and two others are being circulated discussing the monetary payments. In the said complaint, the name of Kanchi Sankaracharya Jeyendirar Saraswathi was not mentioned. Added to such lapse, the petitioner has also not produced the CD either while preferring the complaint or at the time of enquiry before the Enquiry Officer. The petitioner has also not impleaded anyone of the accused in the murder case pending in SC.No.94/2005 and only the third accused has chosen himself to be impleaded in this writ petition by filing a petition and as per the order of this court, he has been impleaded as the 2nd respondent. The petitioner also has not impleaded the trial judge against whom he raised a suspicion. Above all, the petitioner has not come forward with a definite and specific allegation in his complaint or in his affidavit. It is also not stated by the petitioner as to who has recorded the alleged conversation and as to how the said conversation was recorded and circulated.
12. It is also pertinent to note that the petitioner having preferred the complaint dated 18.08.2011, filed the present writ petition on 22.08.2011, i.e., within a period of four days of preferring the complaint which makes it crystal clear that the petitioner has hurriedly filed the present petition by making allegation to the effect that no action was taken on his complaint. On the other hand, it is already pointed out that, soon after preferring the complaint by the petitioner, immediate action was taken and an Enquiry Officer, viz., a Senior Selection Grade District Judge was nominated as early as on 24.08.2011. It is seen that only Mr.S.Doraisamy, Advocate, has produced a CD containing the alleged conversation and the petitioner has not only failed to produce the CD or any other material to substantiate his claim before the Enquiry Officer but also declined to give any statement. In spite of the above said factors, we are inclined to consider the contentions of the learned counsel for the petitioner and other respective parties in view of the seriousness of the allegations made by the petitioner touching upon the majesty of the judiciary.
13. The core question involved in this matter is that whether any action has been taken on the complaint preferred by the petitioner dated 18.08.2011 and whether the alleged conversation purported to have taken place between the trial judge and one of the main accused are genuine and relates to the pending murder case.
14. As far as the action taken on the petitioner's complaint dated 18.08.2011 is concerned, it is already stated that in spite of the complaint containing vague and bald allegations, prompt and swift action was taken on the basis of his complaint dated 18.08.2011 and on the basis of the letter submitted by Mr.S.Doraisamy, Advocate dated 05.08.2011. The said complaint and the letter were placed before the Vigilance Committee on 19.08.2011 itself and the said Committee, without expressing any opinion, has immediately forwarded the same before the Administrative Committee. The Administrative Committee in its meeting held on 24.08.2011 resolved to nominate Mr.K.Audinathan, a Selection Grade District Judge as the Enquiry Officer. At this juncture, it is to be stated that the petitioner, even without waiting for the outcome of the action to be taken on his complaint, has rushed to this court by filing the above writ petition on 22.08.2011 itself.
15. The Enquiry Officer immediately sent summons to the petitioner as well as to Mr.S.Doraisamy, Advocate and accordingly, Mr.S.Doraisamy, Advocate appeared before the Enquiry Officer and his statement was also recorded and he has also produced the CD for scientific examination. The summons issued by the Enquiry Officer to the petitioner contains the date and time of enquiry and the venue of the enquiry. For better appreciation, the said summons is incorporated as here under:-
"ROC.No.584-A & 601/2011/VC CONFIDENTIAL Dated 29.08.2011 SUMMONS TO WITNESS
In the matter of enquiry in connection with the request made in your letter dated 18.08.2011 to the Registrar [Vigilance], High Court, Madras, to probe the tapes with regard to the telephonic conversation purported to be held between the trial court Judge, Thiru Ramasamy, Pondicherry, his devotee/daughter and two others that are being circulated discussing monetary and promised payments.
To Thiru P. Sundararajan Advocate 330, Pandu Klix Plaza, Thambu Chetty Street Chennai-1.
Sir, You are hereby summoned to appear before the Enquiry Officer on 06.09.2011 at 4.00 p.m. at the Chamber of Registrar [Vigilance], High Court, Madras to produce such document or thing or to testify what you know concerning the matter.
High Court, Madras Enquiry Officer"
A perusal of the above said summons makes it crystal clear that the Enquiry Officer has very well disclosed his identity and authority and the summons itself contains the venue of the enquiry, viz., the office of the first respondent herein with date and time. In spite of knowing fully well about the authority of the Enquiry Officer, the petitioner, though appeared before the Enquiry Officer, has questioned the Enquiry Officer about his identity and authority to conduct the enquiry. The petitioner declined to give any statement and also not produced the CD or any other materials to substantiate the allegations. The Enquiry Officer was able to proceed with the enquiry only with the co-operation of Mr.S.Doraisamy, Advocate, which is evident from the report submitted by the Enquiry Officer.
16. From the Enquiry Officers report submitted on 19.09.2011, we could see that on 08.09.2011, the Enquiry Officer has made a reference to the Director, Forensic Science Department [FSD], Mylapore, Chennai-4 and forwarded a copy of the CD [marked as Ex.P.2/D.2] received from Mr.S.Doraisamy, Advocate and a request was made for examination of the CD and render opinion as to whether the audio recordings are normal recordings made in the usual course on telephonic conversation between persons, or doctored, and made to appear as single continuous recording. Opinion was also sought on the point after examining the meta-data as to when the original recording was made and what was the original source of recording such as mobile instruments, personal digital assistant, blackberry device, digital recorder etc. A. On 15.09.2011, the Deputy Director, Physics Division, Forensic Science Department, Chennai, has forwarded his opinion stating that the subject CD contained two digital audio files, viz., Track01.cda and Track02.cda of 44 bytes each. The first audio file is for a duration of 1.16 minutes and the second file is for a duration of 2.11 minutes. The first file, i.e., Track01.cda was created on 31.12.1994 at 8.00.02 p.m. and modified on the same day at 8.00.02 p.m. The second file, i.e., Track02.cda was created on 31.12.1994 at 8.01.18 p.m. and modified the same on the day at 8.01.18 p.m. B. It was mentioned that the date of creation could not be the actual date of creation, but could be due to improper setting of the date and time in the computer from which the two audio files were copied on to the CD under examination.
C. It was opined that contextual discontinuity and abrupt ending of the conversation found in the audio files forwarded for examination indicate the possibility of editing of the source audio files.
D. It was further stated in the opinion that the content of the audio can be authenticated only after examining the actual recording devices [carrying the source audio files], which were used to record the original conversation.
E. The Enquiry Officer, based on the said report as well as the statement given by Mr.S.Doraisamy, Advocate, has concluded that though the Cyber Forensic can detect files from the deleted files from the mobile phones, Mr.S.Doraisamy did not oblige to the Enquiry Officer by handing over his mobile phone for subjecting it to Forensic Examination and there was no co-operation from the person at whose initiation this enquiry was ordered to be taken up.
F. The statement of Mr.S.Doraisamy, Advocate, does not appear to be correct when he stated that a SMS for transfer of audio files through Bluetooth was received from an "unknown" number while all the SMS received during that period on his mobile have identifiable originating numbers.
G. It is further stated that Mr.S.Doraisamy, Advocate has erased the "subject SMS" from his mobile and also deprived a valuable material for tracing the persons responsible for original recording and collection of such original material by completely linking the chain of transfer of files from originating point.
H. The CD furnished by Mr.S.Doraisamy, Advocate initially could not provide any scope for any forensic opinion.
I. Even if Mr.S.Doraisamy, Advocate makes available his mobile phone, no conclusive or authenticated opinion regarding the contents in the audio files could be given as he himself has stated that he received a recorded conversation through Bluetooth claimed to have been recorded by the sender of the SMS, who remains invisible.
J. The Enquiry Officer concluded that the materials made available to this enquiry and gathered during the enquiry do not contain any material relating to the facts in issue, which merit any further action.
17. The report of the Enquiry Officer submitted on 19.9.2011 was placed before the Administrative Committee on 14.10.2011 and the Administrative Committee passed the Minutes directing to place the Enquiry Officer's report before the court in view of the pendency of this writ petition.
18. The above factors make it abundantly clear that the petitioner in spite of preferring a complaint dated 18.08.2011 has not chosen to give any co-operation at all for the enquiry and he went to the extent of questioning the identity and authority of the Enquiry Officer and declined to give any statement and the enquiry was proceeded only with the co-operation of Mr.S.Doraisamy, Advocate and ultimately resulted in submitting a report as stated above. In view of the above, we have no hesitation to hold that a prompt and swift action was taken immediately within a short span of time on the petitioner's complaint dated 18.08.2011, as per the well established procedure formulated by the Full Court Resolution dated 19.07.1993.
19. In view of the complaint preferred against a Judicial Officer and more particularly, making bald and vague allegations in the complaint, we are of the view that at this stage, the question of directing any police authorities or police officials attached to the Vigilance Cell to register the First Information Report does not arise. The procedure adopted for taking an action in respect of the complaint preferred by the petitioner is also in consonance with Article 235 of the Constitution of India. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in STATE OF RAJASTHAN Vs. RAMESCHAND PALIWAL reported in 1998 [3] SCC 72 wherein the Hon'ble Apex Court has held as follows "Article 235 shows that the High Court has to exercise its administrative, judicial and disciplinary control over the members of the Judicial Service of the state. The word "control", referred to in this article, is used in a comprehensive sense to include general superintendence of the working of the subordinate courts, disciplinary control over the Presiding Officers of the subordinate courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement. "Control" would also include suspension of a member of the Judicial Service for purposes of holding a disciplinary enquiry, transfer, confirmation and promotion. What is, therefore, of significance is that although in Article 235, the word "High Court" has been used, in Article 229 the word "Chief Justice" has been used. The Constitution, therefore, treats them as two separate entities inasmuch as "control over subordinate courts" vests in the High Court, but the High Court administration vests in the Chief Justice."
The principle laid down by the Hon'ble Apex Court in the decision cited supra, makes it crystal clear that Article 235 of the Constitution of India empowers the High Court to exercise its administrative, judicial and disciplinary control over the members of the judicial service of the State and as such, the High court has dealt with the matter, viz., the complaint preferred against the judicial officer in consonance with the powers conferred on it under Article 235 of the Constitution of India.
19.a. The Hon'ble Apex Court also had an occasion to refer the Full Court Resolution passed in the year 1993 by the High Court, Madras in REGISTRAR GENERAL, HIGH COURT OF JUDICATURE AT MADRAS Vs. R.PERACHI AND OTHERS reported in 2012 [1] MLJ 289 [SC] and the said Full Court Resolution passed in the year 1993 by the High Court of Madras has got the seal of approval by the Hon'ble Apex Court in the said decision. In view of the settled principles of law laid down by the Hon'ble Apex Court in the decision cited supra and in view of the well established procedure followed in respect of taking action of the complaint preferred by the petitioner against a judicial officer, we are of the considered view that by no stretch of imagination, it could be contended by the petitioner that no action has been taken on his complaint. The said contention of the petitioner is totally baseless and contrary to the records and therefore, the same is liable to be rejected.
20. Now, regarding the prayer of the petitioner for re-trial of the murder case pending in SC.No.94/2005, it is to be stated that the said prayer is on the basis of the allegation levelled against the present trial judge. It is pertinent to note that the High Court in its reference D.O.Lr.No.47/2011-Con.B2 dated 21.12.2011 addressed to the Government of Puducherry for repatriation of the trial Judge, viz., The Chief Judge, Pondicherry, who is on deputation to the Pondicherry Judicial Service, for issuance of transfer and posting orders by the High Court by shifting him from the post of Chief Judge, Pondicherry to the post of Principal District Judge, Perambalur and the concurrence of the Government of Puducherry is still awaited and new incumbent has to assume the charge. As already pointed out, P.Ws.1 to 95 including the material witness Padma [P.W.1-wife of the deceased] and others, have already been examined and cross-examined by the predecessor of the present trial judge. None of the witnesses have raised any objection or expressed any grievance. Only in the other unnumbered writ petitions which are posted for "Maintainability", certain allegations were raised, that too only for the first time, against the present trial judge who is at the verge of transfer. It is also brought to the notice of this court that one of the witnesses in the murder case, viz., S.P.Saktivelu, a police official, has filed WP.No.7575/2011 seeking for the relief of directing the respondents therein to take steps under Section 308 of Code of Criminal Procedure against the approver, who was treated as hostile and to re-examine the petitioner as a witness in the murder case and this court passed an order dated 23.03.2011 dismissing the said writ petition. The learned Single Judge in the said order, has observed and held in paragraph 6 as follows:-
".................. When such steps have already been taken by the learned Public Prosecutor, as per section 308[1] Cr.P.C., it is not for this court to find out whether such discretion has been exercised in a proper manner or not, especially, at this stage, when the trial is in progress. It really, any fault has been committed in the matter of conducting the trial, it is not as if the parties are left in the lurch. After the judgment is delivered, it is always open to the individuals, who are affected by the said judgment, to challenge the same on the basis of the alleged lacuna, before the Appellate Court. Even in the Judgment rendered in Best Bakery case [cited supra] relied on by the learned counsel for the petitioner, wherein the Honourable Supreme Court had an occasion to decide about the correctness of the manner in which the trial was conducted by the Criminal court. After the trial was completed and judgment was delivered, the Honourable Apex Court, referring to the examination of witnesses, had come to the conclusion that the manner in which the evidence was recorded and the manner in which the witnesses were treated was not in accordance with the established principles of law."
It was further held by the learned Single Judge in paragraph 7 which reads as here under:-
"7.The laudable object for which the criminal justice system stands is certainly to be established. There is no second opinion about that. But, the question is whether such a decision can be taken at this stage, which, in my considered view, will amount to interfering with the System of Criminal Administration. Admittedly, the Sessions Judge is seized of the matter and the trial is in progress. At this stage, any examination about the manner in which the investigation has been done and prosecution has been effected by the Prosecutor will certainly affect the Judgment and it is certainly not within the scope of this Court sitting under Article 226 of the Constitution of India."
and this court, ultimately, has held in paragraph 8 as follows:-
"8.When once the investigation is completed and the trial is in progress, the scope of this court to interfere is certainly limited and it is not, as if, at every stage, the Court should interfere with the performance of any alleged irregularity stated to have been committed. As stated above, it is after the judgment is delivered that the parties are entitled to question the validity of the judgment and therefore, such valuable right is available to anyone."
The above said order of the learned Single Judge is reported in CDJ 2011 MHC 2009 [S.P.SAKTIVELU Vs. STATE OF TAMIL NADU REP. BY ITS SECRETARY TO GOVERNMENT, CHENNAI AND OTHERS]. The said order of the learned Single Judge has already reached the finality as the same was not challenged. It is also relevant to state that the said witness, viz., S.P.Saktivelu was also subsequently examined on 05.04.2011 and as on date, the case is pending for advancing arguments by the defence as well as by the prosecution.
21. Learned counsel for the petitioner placed much reliance on the decision of the Honble Apex Court in ZAHIRA HABIBULLAH SHEIKH Vs. STATE OF GUJARAT reported in (2004) 4 SCC 158 popularly known as Best Bakery case. The principles laid down by the Honble Apex Court in the said case was also considered by this court while dismissing the writ petition filed by one of the witnesses, viz., S.P.Saktivelu, in WP.No.7575/2011 reported in CDJ 2011 MHC 2009 [S.P.SAKTIVELU Vs. STATE OF TAMILNADU). It is to be reiterated that the Honble Apex Court in the Best Bakery Case has ordered re-trial only after the trial court has completed the trial and delivered its judgment of acquittal, which was confirmed by the High court and the said judgment of acquittal has been challenged before the Hon'ble Apex Court and the Hon'ble Apex Court has rendered its decision by re-appreciating the evidence available on record and by pointing out serious infirmities and illegalities in respect of the investigation as well as in the manner of conducting the trial. It is seen that in the said case, several witnesses have been dispensed with without assigning any valid reason and one of the eyewitness, in spite of appearing before the court, has been withheld by the prosecution. The Hon'ble Apex Court has pointed out in the said case that the same involves unusual features posing very serious questions of far-reaching consequences. It is pertinent to state that the Hon'ble Apex Court has ordered re-trial only due to the peculiar circumstances after pointing out several infirmities and illegalities, not only in conducting the trial, but also in respect of the investigation conducted by the investigating officers, viz., the police officials.
22. As far as the case on hand is concerned, the case is at the final stage and posted for arguments. It is to be reiterated that the material witnesses, viz., P.Ws.1 to 95 have already been examined before the predecessor of the present trial Judge and the petitioner has thrown allegations only against the present trial Judge, who has examined the remaining witnesses, viz., P.Ws.96 to 189. If at all there is any grievance or any substantial ground is raised, it is open to the aggrieved party to approach the trial court as per the provisions under the Code of Criminal Procedure and it is for the trial court to consider the same on the basis of its own merits. Therefore, the question of ordering re-trial does not arise at this stage. Accordingly, the petitioner cannot place reliance on the decision rendered by the Hon'ble Apex Court in Best Bakery's case [cited supra].
23. In view of the above said factors coupled with the factor that the present incumbent, viz., the trial judge is already under the orders of transfer, there is absolutely no legal impediment and there may not be any real grievance from any person to stall the further proceedings in the criminal case. It is needless to state that the accused is entitled for a fundamental right of speedy trial as guaranteed under Article 21 of the Constitution of India and such right cannot be infringed. The said fundamental right is not only available to the accused but also to the aggrieved parties and any further delay in completing the trial and delivering the judgment, the same would definitely amount to denial of justice. Even after the delivery of judgment, if any grievance arises from any quarter, viz., by the accused or by the defacto complainant, it is always open to both the parties to challenge the judgment of the trial judge in a manner known to law. In view of the aforesaid reasons, we are of the considered view that there is no justification to stall further proceedings pending in SC.No.94/2005 and as such, the successor of the present trial Judge after assuming the charge, shall continue with the further proceedings.
24. Last but not the least question to be decided by us is in respect of the further action to be taken on the basis of the Enquiry Officer's report. It is to be stated that the Enquiry Officer could not come to any definite conclusion regarding the genuineness of the alleged conversation purported to have been taken place between the trial judge and the first accused or others. Therefore, it is just and necessary to find out whether the CD produced by Mr.S.Doraisamy, Advocate, is a genuine and un-doctored one and whether the voices contained in the said conversation belong to that of the trial judge and the first accused. It is needless to state that the issue involved here is in respect of the allegations levelled on the basis of the purported conversation between the first accused and the trial judge which would certainly cause aspersions on the judiciary tarnishing its majesty and image. Therefore, we are of the considered view that the said issue cannot be abruptly closed without any further probe. In our considered view, the nature of the said probe to ascertain the truth and genuineness of the alleged conversation contained in the CD produced by Mr.S.Doraisamy, Advocate and the CD said to have been in the possession of the petitioner which was not produced before the Enquiry Officer, is to be subjected to further enquiry by a skilled and specialised person in the field of Cyber Crime. At this stage, there is absolutely no need for investigation by police as per the Code of Criminal Procedure. Therefore, such a probe is very much essential to uphold the majesty and image of the judiciary and there is no two opinion that if the alleged conversation purported to be between the trial judge and the main accused is proved to be true, a serious action is to be taken and equally, if such allegation is found baseless and the CD containing the conversation is proved to be a bogus and doctored one, then the culprits are to be traced and they should be dealt with an iron hand in accordance with law.
25. By keeping the above factors in mind, we are constrained to entrust the enquiry to a person having specialised skill in Cyber Crime. We are informed that there is a separate police Wing known as "Cyber Crime Cell" having its Headquarters at Chennai, consisting of efficient officials in the field of cyber crime. As such, we are of the considered view that it would be very appropriate to order for an enquiry through such official on the facts and circumstances of this case. It is made clear that the enquiry to be conducted by such police official should not be mistaken for an investigation as the said officer is only an enquiring authority and he has to take all necessary steps to find out the genuineness of the CD and to find out whether the voices in the alleged conversations belong to the trial judge and the first accused in SC.No.94/2005.
26. With the above said object, we are constrained to direct the Director General of Police, Tamil Nadu to nominate Dr. Sudhakar, Former Assistant Commissioner of Police, Cyber Crime Cell, Commissioner Office Campus, Egmore, Chennai-8 or any other competent police official who is having experience of dealing with cyber crimes not below the rank of the Assistant Commissioner of Police and the said nomination shall be made within a period of two weeks from the date of receipt of a copy of this order. The said nominated police official shall conduct enquiry in the manner known to law and on the basis of the petitioner's complaint dated 18.08.2011; on the basis of the letter submitted by Mr.S.Doraisamy, Advocate dated 05.08.2011 and subjecting the CD produced by Mr.S.Doraisamy, Advocate and the CD, if any, to be produced by the petitioner herein for scientific test by taking the sample voices from the present trial judge and the first accused. The 1st respondent is directed to forward the Enquiry Officer's report along with the statement recorded by the Enquiry Officer, scientific expert's opinion, CD produced by Mr.S.Doraisamy, Advocate to the nominated Police Official within a period of ten days from the date of receipt of the information regarding the nomination of the police officer from the Director General of Police.
27. In the result, we dispose of the writ petition in the following terms:-
[I] The Director General of Police, is hereby directed to nominate Dr.Sudhakar, Former Assistant Commissioner of Police or any other competent and specialised police official in cyber crimes not below the rank of Assistant Commissioner of Police within a period of two weeks from the date of receipt of a copy of this order. The Director General of Police shall sent a communication to the Registrar General of the High Court regarding the nomination of the police official.
[II] On receipt of the intimation regarding nomination of a competent police official, the Registrar General shall direct the 1st respondent herein to forward the records containing copies of the petitioner's complaint dated 18.08.2011, letter submitted by Mr.S.Doraisamy, Advocate dated 05.08.2011, CD produced by Mr.S.Doraisamy, Advocate, the then Enquiry Officer's report including the statements recorded by him and the scientific opinion received by him within a period of ten days from the date of receipt of the communication from the Director General of Police.
[III] We authorise the Enquiry Officer nominated by the Director General of Police, to take the voice samples from the present trial judge, the first accused in the case in SC.No.94/2005 and other persons, if required, in order to subject the same for scientific test and the Enquiry Officer shall examine the petitioner, Mr.S.Doraisamy, Advocate, the present trial judge, the first accused and other relevant persons, if required.
[IV] The petitioner shall, on receipt of the intimation from the Enquiry Officer, produce the CD, if any, which he claims to be in his possession within a period of ten days from the date of the receipt of the intimation / summons from the Enquiry Officer.
[V] The petitioner shall extend co-operation to the Enquiry Officer for conducting enquiry.
[VI] The Enquiry Officer is also authorised to collect the source audio file from the TV Channels which telecasted the conversation frequently.
[VII] Any person could be summoned by the Enquiry Officer for production of any materials such as the documents or CD in respect of the enquiry.
[VIII] The Enquiry Officer shall hold a detailed enquiry into the allegations found in the complaint of the petitioner dated 18.08.2011 and letter submitted by Mr.S.Doraisamy, Advocate dated 05.08.2011 and submit a report to the Registrar General, High Court of Madras, Chennai within a period of three months from the date of receipt of the records from the first respondent.
[IX] Based on the report of the Enquiry Officer to be submitted, further course of action will be decided by the High Court.
[X] Regarding the pending case in SC.No.94/2005 on the file of the Principal Sessions Judge [Chief Judge], Puducherry, the successor of the present trial Judge, shall proceed with the further proceedings after assuming the charge.
28. In view of the disposal of the main writ petition, the petition filed in MPSR.No.15082/2012 on 10.02.2012 subsequent to the reservation of orders in this matter which was tagged along with this petition by the Registry, is liable to be rejected. No costs. Connected miscellaneous petitions are closed.
ap To
1. The Registrar (General), High Court, Madras.
2. The Registrar [Vigilance], Madras High Court, Chennai 104.
3. The Assistant Commissioner of Police, Cyber Crime Cell, Commissioner of Police Campus, Chennai 600 008.
4. The Director General of Police, Tamil Nadu Headquarters, Chennai 4