Madras High Court
K.Selvamani vs The State Of Tamil Nadu on 1 April, 2015
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.04.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.O.P.(MD)No.2110 of 2015 K.Selvamani ... Petitioner/ A-1 Vs. The State of Tamil Nadu, represented by The Inspector of Police, Vigilance and Anti-Corruption, Trichy - 620 001. ... Respondent/(Cr.No.11 of 2012)Complainant Prayer : Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in Spl.C.No.16 of 2014, registered by the respondent police, dated 21.05.2014, on the file of the Special Judge for the Prevention of Corruption Act Cases, Trichy and quash the same. !For Petitioner : Mr.Nithyesh Natraj For Respondent : Mr.C.Ramesh, Additional Public Prosecutor Date of reserving the Order : 26.03.2015/30.03.2015 Date of delivering the Order : 01.04.2015 :ORDER
The petitioner is arrayed as A-1 in Special Case No.16 of 2014, on the file of the learned Special Judge for the Prevention of Corruption Act Cases, Trichy and he has filed this Criminal Original Petition to quash the said case insofar as he is concerned.
2. The petitioner would state that at present, he is a Deputy Superintendent of Police (Category - I) and he originally joined as the Sub- Inspector of Police and rendered meritorious service and he was promoted to the present post between 2011-2012.
3. The petitioner working serving as the Deputy Superintendent of Police, Lalgudi Sub Division, received a current paper from the Special Branch Office, Trichy, during the first week of July 2012, directing him to verify certain particulars about one Alpha Educational Charitable Trust and he, in turn, sent the said papers to the jurisdictional Inspector of Police, Lalgudi, with a direction to conduct a personal enquiry and give a report. The said official, in turn, deputed the Sub-Inspector of Police, namely, Chandramohan (A-2), to verify the details. The matter regarding Alpha Educational Charitable Trust is that they had submitted an application for registering the Trust under the Foreign Contribution (Regulation) Act (in short 'FCRA'). The Inspector of Police as well as the Sub Inspector of Police, Lalgudi Police Station, sent a report to the petitioner making favourable recommendation. The petitioner not being satisfied with the details gathered by the said officials, returned the papers seeking clarifications/queries during the second week of July 2012.
4. It is the case of the petitioner that on 18.07.2012, he was on bando-bust duty at Samayapuram Mariamman Temple in connection with the 18th day of Tamil month of 'Aadi' festival as per the direction of the Superintendent of Police, Trichy Rural Police District and at about 06.00 p.m., on that day, when he was at Samayapuram Police Station, one Rajamanickam of Alpha Educational Charitable Trust met him and informed him that the Sub-Inspector of Police, namely, Chandramohan (A-2) and the Inspector of Police, namely, Elancheliyan, directed him to meet the petitioner to clarify certain queries raised by him in respect of the reports put up by them. The petitioner responded by saying that he is busy with security arrangements for the said festival and asked him to meet Chandramohan, the Sub-Inspector of Police, (A-2) as he has sought certain clarifications/queries for re-submitting the papers and also informed that as per the instructions received from the office of the Superintendent of Police, Trichy District, he has to expedite and submit a report as early as possible.
5. The petitioner claims that when he was in the District Police Office on 19.07.2012 at 10.00 a.m., the said Rajamanickam managed to get his mobile number and called him and informed that he has made the papers ready and wanted to meet him and he told him that he will return to his office at Lalgudi beween 02.30 p.m., and 03.00 p.m., and asked him to come there with all papers relating to his application for registering under FCRA. The petitioner returned to his office at 02.30 p.m., on 19.07.2012 and it is an office cum residence and his office is situated at the upstairs portion. The petitioner on entering into the office, saw the said Rajamanickam and asked him to wait and he went to the residential quarters to change his dress and he was combing his hair and at that time, few persons came and caught hold him and when he questioned their identity, they told him that they are the Deputy Superintendent of Police and the Inspector of Police, of the Department of Vigilance and Anti-Corruption and they informed him that he received a bribe of Rs.25,000/- from the said Rajamanickam to submit a favourable report.
6. The petitioner has denied the same and told them what transpired already. However, they refused to listen the same. The petitioner was brought to his office room and so also, the said Rajamanickam who pointed out that he kept the money in between the files placed on his table.
7. The Deputy Superintendent of Police, Department of Vigilance and Anti-Corruption, asked the petitioner to take out the money which was placed between the files, but he refused to do so and they wanted to subject his fingers to Phenolphthalein Test and it was refused by him. Thereafter, alleging that the trap has become successful, the petitioner was arrested at about 02.45 p.m., on 19.07.2012 and brought him to the office of the Department of Vigilance and Anti-Corruption at Trichy.
8. It is the specific plea of the petitioner that Chandramohan (A-2) was not judicially proceeded with and he was not even arrested and the Inspector of Police, Lalgudi Police Station, with the help and connivance of A-2 had designed an evil plan and they used the said Rajamanickam as a weapon and concocted a story of the alleged demand of bribe and acceptance. The petitioner was also suspended from service vide G.O.(2D)No.208 under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955.
9. The petitioner contended that the present prosecution is actuated by mala fides and it is clear from the fact that A-2 was not at all arrested and he has also moved a petition for anticipatory bail in Crl.O.P(MD)No.1635 of 2013 and he was enlarged on anticipatory bail, vide order dated 27.09.2013, by his Court, taking note of the representation made on behalf of the prosecution that the investigation has been completed and the charge sheet has been filed, but not taken on file. However, the petitioner would state that admittedly, the charge sheet is dated 21.05.2014 and it was filed only on 26.05.2014 and a false representation has been made before this Court to enable A-2 to get anticipatory bail and thereby, avoided arrest.
10. It is the case of the petitioner that the materials collected by the prosecution during the course of the investigation are fraught with various discrepancies and contradictions and the criminal prosecution is per se mala fide and it is purely an abuse of process of law and hence, prays for quashment of the charge sheet insofar as he is concerned.
11. Mr.Nithyesh Natraj, learned Counsel for the petitioner/A-1 has invited the attention of this Court to the voluminous typed set of documents which not only contains the statements of the witnesses recorded under Section 161(3) Cr.P.C, during the investigation and the documents collected during the investigation, but also contains the confidential reports of the petitioner and the awards and rewards received by him to show that the petitioner had an outstanding career and was rated by his superior officers for his integrity, honesty and efficiency and since he took action against the Inspector of Police, Lalgudi Police Sation, namely, Elancheliyan, he, with the help of the Inspector of Police, Department of Vigilance and Anti- Corruption, Trichy, namely, Ramachandran, managed to procure the services of the said Rajamanickam of Alpha Educational Charitable Trust and cooked up a story as if for submitting a favourable report so as to enable the said Trust to get registered under FCRA, he received the bribe, whereas the facts are otherwise.
12. It is further submission of the learned Counsel for the petitioner that the petitioner returned the papers seeking various clarifications and unless on the said clarifications, the Sub-Inspector of Police, Lalgudi Police Station, namely, Chandramohan (A-2) and the Inspector of Police, Lalgudi Police Station, submitted a report, he cannot proceed further and admittedly, no such further report was submitted by them and hence, the alleged demand and acceptance of bribe, is highly improbable and nothing, but figment of imagination.
13. The learned Counsel for the petitioner has also invited the attention of this Court to the statements of witnesses recorded during the investigation, especially, the statement of Elancheliyan, Inspector of Police, Lalgudi Police Station, wherein he denied his signature in the very report itself and it is also the evidence of fact that A-2 has played a major role for implicating the petitioner.
14. In sum and substance, it is the submission of the learned Counsel for the petitioner that the present criminal prosecution launched against him, smacks with mala fides and it is purely an abuse of process of law and the continuance of the same, would definitely lead to miscarriage of justice and prayed for quashment of the same.
15. The learned Counsel for the petitioner, in support of his submissions, placed reliance upon the following decisions:
(i) Suraj Mal v. State (Delhi Administration) reported in (1979) 4 Supreme Court Cases 725.
(ii) A.V.Ravi v. State [Criminal Appeal No.454 of 2009, decided on 04.12.2013 - High Court of Karnataka]
(iii) C.Rajan v. Union of India reported in 2013 SCC Online Mad 3830.
(iv) State rep. by Inspector of Police v. P.Paraman [Criminal Appeal (MD)No.189 of 2005, decided on 25.04.2011].
16. Per contra, Mr.C.Ramesh, learned Additional Public Prosecutor for the respondent has invited the attention of this Court to the counter affidavit filed by the respondent and would submit that the respondent after thorough investigation has filed the charge sheet against the petitioner and A-2 - Chandramohan, Sub-Inspector of Police, Lalgudi Police Station, for the commission of the offences under Sections 7, 12 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and the pointed urged by the learned Counsel for the petitioner cannot be considered at this stage as it can be adjudicated only during the course of trial and any finding rendered by this Court may affect the case of the prosecution and prays for the dismissal of this petition.
17. After hearing both sides, the orders were reserved by this Court on 26.03.2015 and on 27.03.2015, the learned Counsel for the petitioner prayed for permission to submit the written arguments and hence, this Court directed the listing of the matter on 30.03.2015 under the caption 'for being mentioned' and on that day, the written arguments were submitted on behalf of the petitioner.
18. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the written arguments, typed set of documents and the decisions relied on by the learned Counsel for the petitioner.
19. A perusal of the post-trap mahazar would disclose that the tainted money was recovered from the table of the petitioner in between two files and admittedly, the Phenolphthalein Test was not conducted in person of the petitioner. The shadow/trap witness, in his statement, has supported the version of the defacto complainant.
20. The learned Counsel for the petitioner has invited the attention of this Court to the statements of witnesses recorded during the investigation and the documents filed along with the charge sheet as well as some documents which are no forming part of the charge sheet, in support of his submissions for quashment of the charge sheet insofar as the petitioner is concerned.
21. It is to be remembered at this juncture that only when the concerned witness entered into the box, they can be cross-examined based on the statements recorded under Section 161(3) Cr.P.C and it is open to the witnesses to offer their explanation, especially, the Trap Laying Officer and the Investigating Officer.
22. The prosecution is at liberty to produce the witnesses as per their own order and they may not examine all the witnesses.
23. The answers elicited during the cross-examination may also favour the accused and therefore, this Court cannot consider the said statements for the purpose of considering this petition.
24. Insofar as the documents filed along with the charge sheet as well as the defence documents are concerned, witness may come out with their version which may be favourable to the accused.
25. The statement of the petitioner was also recorded on 18.10.2012 and he has also given his version and even according to the petitioner, he refused to undergo the Phenolphthalein Test fearing false implication. The fact remains that the files in which the currency notes were placed, were subjected to Phenolphthalein Test and proved positive and the concerned Scientific Assistant has also given her statement and it can be tested only during the course of the trial.
26. The judgments relied on by the learned Counsel for the petitioner in Suraj Mal v. State (Delhi Administration) reported in (1979) 4 Supreme Court Cases 725 and A.V.Ravi v. State [Criminal Appeal No.454 of 2009, decided on 04.12.2013 - High Court of Karnataka], lay down the proposition that mere recovery of bribe money divorced from the circumstances under which it was paid, is not sufficient to convict when the substantive evidence in the case was not reliable.
27. The very same proposition has been laid down in C.M.Girish Babu v. CBI reported in (2009) 3 Supreme Court Cases 779.
28. In A.Subair v. State of Kerala reported in (2009) 6 Supreme Court Cases 587, it has been held that the prosecution has to prove the charges under the Prevention of Corruption Act beyond any reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established, otherwise, by proper proof of demand and acceptance of illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.
29. In C.Rajan v. Union of India reported in 2013 SCC Online Mad 3830, the petitioner therein filed two writs praying for appropriate direction for investigation by Special Investigation Team with regard to fabricating of false evidence and initiating the illegal criminal proceedings against him and forbearing the official respondents from taking any further action. The learned Judge on a threadbare analysis of the materials collected during the investigation, has observed in paragraphs 74 and 83, thus:
"74. Again I am conscious of the fact that I am not the Trial Court dealing with these aspects. But what bothers me is that this kind of a trap can be organised even against anyone, including an honest Officer, without such honest Officer having a scent of what is happening behind his back. If an honest Officer is to be fixed, it can be done by the very same procedure that the CBI had followed in this case. I make it clear that I am not giving a certificate of good character to the writ petitioner. All that I am trying to point out is that if people want to fix somebody, they can easily do it in this manner.
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83. As I have made clear earlier, I am not for a moment giving a good conduct certificate to the writ petitioner or pronouncing the writ petitioner not guilty. He has to face trial and get honourably acquitted, to come out clean. But in the background in which the complaint was given and the trap was organised, it is impossible for me to white wash the whole background and leave it to the fate of the petitioner to come out clean in the criminal case."
However, while disposing of the writ petition, the learned Judge directed the first respondent - Union of India represented by the Secretary to Government, Revenue Department, either to inquire by himself into the representation submitted by the petitioner or in the alternative, forwarded the same to the Director of the Central Bureau of Investigation to submit a detailed report and the result of the same shall be communicated to the petitioner therein. The learned Judge in the light of the facts projected before him, has made such observations.
30. The Honourable Supreme Court in Sajjan Kumar v. CBI reported in (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371, has culled out the principles regarding Sections 227 and 228 Cr.P.C., which would broadly apply to Sections 238 and 239 Cr.P.C. and in paragraph 21, observed as follows:
Exercise of jurisdiction under Sections 227 and 228 CrPC.
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. "
31. In the light of the above said decision, this Court is of the view that the probative value of the materials on record of the prosecution along with the charge sheet, cannot be gone into by this Court and the trial Court at the time of framing the charges, is required to evaluate the materials and documents available on record with a view to find out the facts emerging therefrom taken on their entire face value, disclose the existence of all the ingredients constituting the alleged offence.
32. In the considered opinion of this Court, the points urged by the learned Counsel for the petitioner by placing reliance upon the materials collected during the investigation and some documents by way of defence, cannot be considered at this stage as consideration and appreciation of the same fall within the domain of the trial Court.
33. Therefore, this Criminal Original Petition is dismissed. However, the petitioner is at liberty to put forth all his defence at an appropriate stage and also to work out his further remedy in accordance with law. It is also made clear that the observations made herein, are only for the purpose of disposal of this petition and the trial Court has to adjudicate the case on it's own merits based on the quality of evidence tendered by the prosecution.
Index :No 01.04.2015 Internet:Yes rsb To 1.The Inspector of Police, Vigilance and Anti-Corruption, Trichy - 620 001. 2.The Court of Special Judge for the Prevention of Corruption Act Cases, Trichy. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. M.SATHYANARAYANAN,J. rsb PRE-DELIVERY ORDER MADE IN Crl.O.P.(MD)No.2110 of 2015 01.04.2015