Madras High Court
Duraimurugan vs Deputy Superintendent Of Police on 10 April, 2012
Author: Vinod K. Sharma
Bench: Vinod K. Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.04.2012 CORAM: THE HONOURABLE MR. JUSTICE VINOD K. SHARMA W.P.No.8391 of 2012 and M.P.No.1 of 2012 Duraimurugan .. Petitioner - vs - Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore. .. Respondent Prayer: This writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari directing the respondent to call for the records in R.C.No.249/2011/PUB/HQ dated 11.03.2012 on the file of the respondent herein and quash the same. For Petitioner : Mr.R. Shanmugasundaram, S.C. For Mr.A.Saravanan For Respondent : Mr. I. Subramanian Public Prosecutor Mr.A.Navaneethakrishnan, Advocate General Assisted by Mr.R.Vijaya Kumar, AGP & Mr.R.Bala Ramesh, G.A. ***** O R D E R
The petitioner prays for issuance of Writ in the nature of Writ of Certiorari to quash the questionnaire dated 11.03.2012 send to the petitioner, thereby seeking information from the petitioner in the pending Criminal Case.
2. The petitioner is the Deputy General Secretary to the DMK party and a sitting MLA elected from the Katpadi Assembly Constituency.
3. The petitioner was Minister for Public Works Department and Law during the period 2006 to 2011.
4. The case of the petitioner is that to wreak vengeance against the important functionaries of the DMK Party, the ruling AIADMK Government has foisted several cases of land grabbing, but as the case of the land grabbing could not be slapped against petitioner therefore a case has been registered under the Prevention of Corruption Act on the ground, that the petitioner possesses the assets dis-proportionate to known source of income.
5. The case has been registered against the petitioner vide Crime.No.17 of 2011, under Section 13(2) r/w. 13(1) (d) of the prevention of Corruption Act. After the registration of the case, searches were conducted at his residence and the business premises of the son of the petitioner, but, no documents in support could be collected.
6. The submission of the petitioner is, that having failed to get any supporting material, the questionnaire has been sent to him with 66 questions asking him to answer the questions, to collect evidence against the petitioner.
7. The petitioner challenged the impugned questionnaire on the ground of, it being violative of the Constitutional guarantee enshrined under Article 20(3) of the Constitution of India, as it amounts to compelling an accused to be a witness against himself.
8. The learned Senior counsel for the petitioner, in support of this contention, placed reliance on the judgment of the Hon'ble Supreme Court, in 2010 (7) Supreme Court Cases 263, (Selvi and others Vs. State of Karnataka), wherein it has been held that:
"99. The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system i.e. the testimony of the accused is viewed as the "best evidence" that can be gathered. The premise behind this is that innocent persons should not be reluctant to testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other Courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the Judge. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition.
100. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of the "right to counsel" that the accused's "right to silence" became meaningful. With the consolidation of the role of the defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as on essential feature of a fair trial so as to ensure a level playing field between the prosecution and the defence. In addition to a defendant's "right to silence" during the trial stage, the protections were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial enquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage".
9. The Writ Petition is opposed by the learned Public Prosecutor, by contending that the Writ Petition is wholly mis-conceived, as the questionnaire is not to collect the evidence against the petitioner, but only to facilitate and help the petitioner, to give explanation to material collected. In support of the contention that it is permissible to the prosecution to issue questionnaire to the accused, the learned Public Prosecutor placed reliance on the judgment of this Court in Pulavar B.M. Senguttuvan and others Vs. The State, respondent (2004 Crl.L.J.558) wherein this Court was pleased to lay down as under:
"13. In the latest judgment of the Honourable Apex Court reported in (2003)4 SLT 335 : (2003 Crl LJ 3117), the Honourable Apex Court again has laid emphasis, clearing any doubt that may arise in the mind of anyone, cautioning against interference of the Court with the investigation or during the Course of investigation which would mean from the time of lodging of the First Information Report till the submission of the report under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating Agency". Therefore, there is no gainsaying that either the act of the respondent is against the law or against the spirit of Article 20(3) of the Constitution of India and hence even interpreting Section 160(I) Cr.P.C., in conformity with the above."
10. This contention of the learned Public Prosecutor cannot be accepted. The Judgment relied on does not lay down, that accused can be asked to be witness against himself. The ratio of judgments on which reliance was placed by the learned Public Prosecutor, is that it is open to the prosecution to seek explanation of the accused qua the material collected by the prosecution, which forms part of prosecution right, but this cannot be interpreted to mean that accused can be asked to give additional material which may be used against him.
11. Faced with this situation, learned Public Prosecutor stated at the bar, that the impugned questionnaire is voluntary and it is for the petitioner either to answer or not to answer it. In the event of petitioner not answering the questionnaire, no adverse action will be taken and it will be for the Investigating Agency to proceed with the investigation strictly as per the provisions of the Code of Criminal Procedure.
12. In view of the positive stand of the learned Public Prosecutor, the petitioner cannot have any grievance to the impugned questionnaire, as the petitioner has option to ignore it, if so advised.
13. This writ petition is, therefore, disposed of, by recording the statement of learned Public Prosecutor. No costs. Consequently, connected miscellaneous petition is closed.
trp/ar To Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore