Madras High Court
Smt. R. Nalini And Mr. B. Ranganathan vs State, Rep. By The Inspector Of Police, ... on 31 December, 2004
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. Crl. O.P. No: 31737 of 2004 has been filed by the petitioner, who is a Member of the Tamil Nadu Legislative Assembly to quash C.C. No. 23 of 2004 pending on the file of the IV Additional Sessions Court, Chennai.
2. Crl.O.P. No:31736 of 2004 has been filed by the wife of the petitioner in the aforesaid petition for the similar relief.
3. The brief facts of the contention of the petitioners are as follows:-
The respondent has filed final report/Charge sheet which is taken up as C.C. No. 23 of 2004 for an offence punishable under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act under Section 109 of IPC. According to the petitioners, the case has been registered only to wreak vengeance due to political animosity since the petitioner is a sitting MLA of Opposition party, viz., DMK party.
4. The grounds on which the petitioners want to quash the case filed against them are:-
(i) There are about Seven Special Judges appointed for the City of Chennai. As per the provision contained in Section 4(2) of the Prevention of Corruption Act, there are more Special Judges than one for such area the offences specified in Sub Section (1) of Section e shall be tried by such one of them, as may be specified in this behalf by the Central Government. There is no Notification by the Central Government, empowering the particular Special Judge to take cognizance of the offence and therefore the cognizance taken by the IV Additional Judge, Chennai and the subsequent issuance of summons is illegal, void ab initio and resulted in grave miscarriage of justice.
(ii) As per the provisions contained in Section 461 of Cr.P.C., when a court not being empowered by law, takes cognizance of an offence and tries an offender, the proceedings shall be void.
(iii) The final report was initially laid before the I Additional Sessions Court, and later it has been transferred to the IV Additional Sessions Court, raising suspicion over the powers of the Special Judge to take cognizance. The transfer made by the I Additional Sessions Judge, Chennai is without jurisdiction.
(iv) One of the petitioners Mr. Ranganathan being a Member of the Tamil Nadu Legislative Assembly, prior sanction order under Section 19 of the Prevention of Corruption Act, 1988 for prosecuting him is necessary. The permission order issued by the Speaker of the Tamil Nadu Legislative Assembly to prosecute the petitioner is not a sanction order in the eye of law. Hence there is no valid sanction.
(v) The summons have been issued under Section 272 of Cr.P.C. The official language of the Courts upto District and Sessions Court is only Tamil. But the Summons have been written in English, in complete derogation of the legal provisions.
(vi) The information about the petitioner' business activities and income thereof is suppressed and purposely omitted with a view to make a prima facie case against the petitioners.
5. Counter affidavits have been filed in both the Criminal Original Petitions by the respondent-State Government, the gist of which is as follows:-
After making a confidential inquiry about the allegation of wealth by Thiru B. Ranganathan, MLA, and his wife for the period between 17.6.1996 and 31.10.2001, during which period he has served as MLA, a case in Cr. No. 3/AC/202/HQ was registered for the offence under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act. The Investigation revealed that the petitioner and his family members have amassed wealth to an extent of Rs. 6,47,34,599.92/=, disproportionate to the known sources of his income.
6. On 31.8.2004 permission was accorded by the Hon'ble Speaker of the Tamil Nadu Legislative Assembly to prosecute the Mr. B. Ranganathan, MLA, who is A.1 in the Calendar Case. The First Additional Sessions Judge/Special Judge who was holding full additional charge of the post of Principal Sessions and City Civil Judge/Special Judge, Chennai, took cognizance of the said offences against A.1 and his wife A.2 in C.C. No. 23 of 2004 on 14.9.2004 and made over the case to the Court of IV Additional City Civil/Additional Sessions/Special Judge for trial and summons have been issued on 16.9.2004 to the petitioners for their appearance before the court on 4.10.2004. A.1 filed Crl.O.P. No. 29928 of 2004 for quashing the FIR. He also challenged the correctness of the cognizance taken by the Special Judge/Principal Sessions Judge on 14.9.2004 in the said C.C. No. 23 of 2004 in the course of his arguments advanced therein. But this court dismissed the said Crl. Original Petition on 29.9.2004 and the petitioner did not challenge the correctness of the said orders in the appropriate forum. The contention of the petitioner that the IV Additional Sessions Court, Chennai, which is one among the Special Judges, appointed under Section 3 of the Prevention of Corruption Act, 1988, had no power to take cognizance of the offences mentioned in the final report filed against the petitioner (A.1) and his wife (A.2) on the reason of absence of notification from the Central Government as per Section 4(2) of the said Act specifying the cases to be tried by each of the said Special Courts is erroneous. The further contention that the I Additional Sessions Judge has no power to transfer the case to the IV Additional Sessions Court is also not sustainable. More than one Special Court appointed for conducting the cases under the Prevention of Corruption Act were functioning within the Sessions Division of Chennai for a very long period. On 30.4.1997, the State Government by issuing Notification, established 3 courts of City Civil and Sessions Judges/Special Judge in addition to the Courts of Principal and Additional City Civil and Sessions Judges/Special judges already functioning in Madras Sessions Division and appointed Special Judges for the said three courts to try exclusively on day to day basis certain criminal cases. The Principal and the I Additional to VII Additional Sessions City Civil courts have been duly appointed by the State Government in accordance with the provisions of Section 3 of Prevention of Corruption Act, 1988 to take cognizance and try the offences punishable under the said Act and also the abatement, conspiracy to commit and attempt to commit the said offences within the territorial jurisdiction of Chennai Sessions Division as per the Notification issued in G.O. Ms. No. 548 Home (Courts II) department dated 16.4.1997. The FIRs and charge sheets in such cases are being filed before the Court of Principal City Civil and Sessions Judge/Special Judge which in turn makes over the said cases to the other Special Court/Additional City Civil and Sessions Courts.
7. It is an indisputable fact that the IV Additional Sessions Judges/Special Court is one of the Courts appointed in accordance with the provisions of Section 3 of the Prevention of Corruption Act, 1988 to try these cases within the Sessions Division of Chennai. The occurrence of the case against the petitioners took place within the territorial jurisdiction of the Sessions Division of Chennai and thereby there is no legal bar for the IV Additional Sessions Judges/Special Court to take cognizance of the offence against the petitioner as envisaged under Section 5(1) of Prevention of Corruption Act, 1988. As per Section 5(1) of the Prevention of Corruption Act, a Special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused, the Special Judge shall follow the procedure prescribed in Cr.P.C., for the trial warrant cases by the Magisrates.
8. In J. Jayalalitha v. Union of India, reported in 1999 Crl.L.J., page 2859, the Supreme Court of India after detailed consideration of the relevant facts has given a clear finding that there was no need or the Central Government to issue any G.O under Section 4(2) of the Prevention of Corruption Act, 1988 to specify the cases triable by each of the said Additional Sessions/Special Courts functioning under one and the same Sessions Division of Chennai.
9. The other grounds raised by the petitioners have already been raised in Crl.O.P. No:29928 of 2004 and they were found to be incorrect and devoid of merits and therefore this court dismissed the said Crl. Original Petition on 29.9.2004. Issuance of summon to the petitioner in Crl.O.P. No:31736 of 2004, the wife the MLA, in English cannot be a ground with regard to quash the case or summons as contended by the petitioner. Further, the petitioner has appeared in the trial court through her counsel in response to the summons and thereby the prayer for quashing the summons has become infructuous.
10. The point for consideration is Whether the summons issued on 16.9.2004 under Section 61 of the Code of Criminal Procedure in C.C. No. 23 of 2004 should be quashed?
11. The petitioner in Crl. O.P. No: 31737 of 2004 Thiru B. Ranganathan is a sitting MLA of Tamil Nadu Legislative Assembly. The petitioner in Crl. O.P. No: 31736 of 2004 is his wife. The respondent-police have filed a final report/charge sheet against the petitioenrs as A.1 and A.2 for alleged offences under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act on the ground that the petitioners and their family members have acquired properties and pecuniary resources disproportionate to the known sources of the MLA's income to the extent of Rs. 6,47,34,599/= The final report was filed in the court of the Principal Sessions Judge, Chennai. The First Additional Sessions Judge (Special Court Judge) who was in full additional charge of the Principal Sessions Judge, transferred the case C.C. No. 2 of 2004 to the Corut of the IV Additional Sessions Judge/Special Judge, who issued summons dated 16.9.2004 to A.1 and A.2. The said issue of summons by the IV Additional Sesssions Judge is challenged among various other factual aspects by two questions of law by the petitioners. They are: (i) the permission as required under Section 19 of the Prevention of Corruption Act has not been validly granted, since the Speaker of the Tamil Nadu Legislative Assembly is not the person who can grant such permission for prosecution of the MLA; and (ii) the IV Additional Sessions Judge/Special Court is not the competent court to take cognizance of the offence since the transfer to the said court was made by the First Additional Sessions Judge, who had no power to transfer the said case to the IV Additional Sessions Judge.
12. As far as the first contention of the learned counsel appearing for the petitioners is concerned, it is an admitted fact that the Hon'ble Speaker of the Assembly is not the appointing authority or the authority empowered to take disciplinary action as in the case of other Government Servants. When a similar situation arose in the case of Former Prime Minister of India, Mr. P.V. Narasimha Rao, , by a majority opinion the Hon'ble Supreme Court was pleased to observe as follows:-
"In the absence of requirement of previous sanction for initiating proceedings in a Court of law against a Member of Parliament in respect of an offence mentioned in Section 19(1) of the 1988 Act the possibility of a Member of Parliament being subjected to criminal prosecution on the basis of malicious or frivolous allegation made by interested persons cannot be excluded. Till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge sheet in respect of an offence punishable under Ss.7,10,11,13 and 15 of the 1988 Act against a Member of Parliament in a criminal Court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be."
13. Applying the same analogy, as far as the present case is concerned, the prosecuting agency before filing the charge sheet against the Member of the Legislative Assembly shall obtain the permission of the Speaker of the Legislative Assembly which has been actually done in this case. The learned counsel for the petitioners would further contend that the Speaker of the Assembly himself is facing criminal charges in a cheating case and therefore the permission given by him is invalid in law. This contention holds no substance. Because, the present incumbent, Speaker of the Legislative Assembly is facing a criminal case, it does not mean that he is not performing the duty as a Speaker. As long as he is functioning as a Speaker of the Tamil Nadu State Legislative Assembly, he is the authority to grant permission to prosecute a sitting MLA. Therefore, this contention of the learned Counsel for the petitioners, because the Speaker himself is involved in a criminal case, he cannot give permission, is of no use.
14. The next contention of the learned counsel for the petitioners is that the First Additional Sessions Judge/Special Judge, Chennai has no power to transfer the case in C.C.23 of 2004 to the file of the IV Additional Sessions Judge/Special Judge, Chennai. But, on the relevant date, i.e., 14.9.2004, when the case was made over by the First Additional Sessions Judge/Special Judge to the IV Additional Sessions Judge/Special Judge, the post of Principal Sessions Judge/Special Judge was vacant and the First Additional Sessions Judge/Special Judge was holding full additional charge. Therefore the First Additional Sessions Judge/Special Judge in the capacity as holding full in charge of the post of Principal Sessions Judge/Special Judge, has transferred the case to the IV Additional Sessions Judge/Special Judge, and therefore, I do not find any reason to find fault with such transfer of the case.
15. The other contention raised by the learned counsel for the petitioners is that a Notification as required under Section 4(2) of the Prevention of Corruption Act to be issued by the Central Government is a must before the Learned IV Additional Sessions Judge/Special Judge, Chennai takes cognizance of the offence. Section 3(1) of the Prevention of Corruption Act empowers both the State and the Central Government to issue Notifications for trial of the cases or group of cases under the Prevention of Corruption Act.
16. Section 3 of the Prevention of Corruption Act reads as follows:-
3. POWER TO APPOINT SPECIAL JUDGES:--(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many Special Judges as ma be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:-
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Cl.(a).
(2) A person shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973."
17. Under Section 4(2) of the said Act, The Central Government has also the powers to issue such a notification. In fact, in J. Jayalalithaa v. Union of India, reported in 1999 Crl.L.J page 2859, when a notification issued on 5.2.1999 by the Central Government by transferring certain group of cases pending in various courts of Chennai City to the Special Courts, and when the matter was taken up to the Hon'ble Supreme Court, their Lordships of the Supreme Court have set aside the Notification and observed as follows:-
"24. Section 3(1) empowers the Central Government or the State Government to appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification issued in that behalf to try the offences punishable under the Act. Section 4(2) provides that offences specified in Sub-section (1) of Section 3 shall be tried by Special Judges only. Sub-section (2) of Section 4 then provides by which Special Judges the offences under the Act are to be tried. It reads as under:-
"4(2) Even offence specified in sub section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed, or, as the case may be, by the Special Judge appointed for the case, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government."
Whereas Section 3 empowers both the Central Government and the State Government to appoint Special Judges, sub section (2) of Section 4 authorises only the Central Government to specify, where there are more Special Judges than one fro an area, by which Special Judge the offence shall be tried. It was submitted that in the city of Chennai there were more Special Judges for that area and, therefore, when three more Special Judges were appointed only the Central Government could have at that time specified which Special judge shall try which offence.
25. Section 4(2) consists of three parts. It first provides that every offence specified in sub section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed. This is consistent with the general principle that the Court does not ordinarily have extra-territorial jurisdiction. But, as Section 3 empowers both the State Government and the Central Government to appoint a Special Judge for a case or group of cases, a proviso had to be made to give effect to power and thereafter it further provides that where a Special Judge is appointed for a case, then it will have to be tried by a Special Judge. In the absence of such a provision the very purpose of appointing a Special Judge for a case will get frustrated. The third part deals with a situation, which would arise when more Special Judges than one are appointed for a particular area. In that situation a question may arise as to by whom the cases are to be allocated among them. It was submitted by the learned Attorney General that when a Special Judge is appointed for a case then obviously that case will have to be tried by the Special judge appointed for that case. But he submitted that, significantly sub section (2) of Section 4 does not refer to "group of cases" and that indicates that there is no exclusivity of jurisdiction of such a Special Judge, and consequently the power conferred on the Central Government to allot cases under Section 4(2) would apply to case tried by such Special Judges. He submitted that in such a situation they should really be regarded as Area Special Judges. WE are unable to appreciate this submission. Very probably the third para takes care of such a situation. On applying the well known principle of Interpretation of Statute that singular includes plural unless the context requires otherwise, it may be held that the word "case" in the second part of Sub Section (2) includes "cases" and, therefore, when a Special Judge or Judges is/are appointed for a case or group of cases, then only that Special Judge or those Special Judges can hear those cases, otherwise the very purpose of making such appointment or appointments would be frustrated. However, we need not go into this larger question and we are of the view that the power conferred upon the Central Government under Section 4(2) is also toe exercised if that becomes "necessary". The same guideline contained in Section 3(1) must appear while exercising power under Section 4(2) also. The trial of cases specified in the impugned State notification was going on since May 1977 and no necessity had arising till February, 1999 to exercise the power of allocation in respect of those cases. The Central Government has not placed any material before us to show why it became necessary for it, after such a long time to make reallocation of cases to be tried by Special judges in the City of Chennai. It has pleaded only its power to do so. The allocation was made in consultation with the High Court. Really, the allocation amongst the three Special Judges can be said to have been done by the High Court though the formal notification in that behalf was issued by the State Government, the Central Government issued the impugned notification, while the SLPs challenging the judgment of the High Court was pending in this Court. The Central Government has failed to establish the necessity of issuing the impugned notification dated 5.2.1999 the same is held to be not in accordance with Section 4(2) of the Act. It was uncalled for at that stager and, therefore, it has to be regarded as bad."
18. The State Government has already issued a Notification dated 16.4.1997, whereunder the Tamil Nadu Government has appointed the Principal, I, II, III, IV, V, VI and VII Additional Sessions Judges to try offences punishable under Section 3 of the Prevention of Corruption Act, committed within the territorial jurisdiction of Chennai Sessions Division. It is as per this Notification, the cases are distributed to the I Additional Sessions Judge to the VII Additional Sessions Judge, who have been appointed as Special Judges to try the offences committed within the area of Chennai Sessions Division. Therefore, this contention of the learned counsel for the petitioners that the IV Additional Sessions Judge/Special Judge has no jurisdiction to take cognizance of the offence to issue summons to the petitioners is also not tenable.
19. The another contention raised by the learned counsel for the petitioners is that the summon has been issued to the wife of the MLA in English language and the official language of the courts up to the level of Sessions Court is only Tamil and therefore the summon should be quashed. It may be true that the official language of the court is Tamil. But it is the usual practice that summons are being issued in English. Moreover it is not the contention of the petitioner in Crl.O.P. No:31736 of 2004 that she being a house wife, she is not able to read English. It is pertinent to note that on receipt of summons, she engaged a counsel who appeared before the trial court and she has preferred the present petition before this court challenging the summon by engaging a counsel before this court as well. If the petitioner is aggrieved that the documents if any filed along with the final report is in English and if she is unable to understand the contents of the said documents or statements, it is always open to her to agitate the same before the trial court and ask for the translated version of the documents or statements. At this stage, the copies could not have been furnished to the petitioner(A.2), this question does not arise at this stage.
20. The other contentions raised in the grounds with regard to facts of the case, the same have already been dealt within Crl.O.P. No. 29928 of 2004 and they do not require a fresh consideration in these Crl.O. Ps.
21. In the result, both the Criminal Original Petitions are dismissed. Consequently, connected Crl.M. Ps are also dismissed.