Madras High Court
S. Kaliamoorthy vs The Inspector Of Police on 24 September, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED: 24.09.2014
C O R A M
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
CRL.O.P.No.3403 of 2008
and
M.P.Nos. 1 & 2 of 2008
1. S. Kaliamoorthy
2. P. Marimuthu
3. M. Suresh Moorthy
4. R. Kulandhaivelu
5. Rajamanikkam
6. A.R. Thamarai Selvan
7. M. Chinnappan ...Appellants
Vs.
The Inspector of Police,
Vigilance and Anti-Corruption,
Salem. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of Code of Civil Procedure to call for the charge sheet filed against the Petitioners in Spl.C.C.No.115 of 2007 on the file of the Chief Judicial Magistrate, Salem and to quash the same.
For Petitioners : Mr. R. Shanmugam,
Senior Counsel for
M/s. Dr.R. Gopinath
Mr. S.V. Karthikeyan
For Respondent : Mr. A.N. Thambidurai
Additional Public Prosecutor
ORDER RESERVED ON : 16.09.2014
O R D E R
The Petitioners had focused the instant Criminal Original Petition prayed for passing of an order by this Court to call for the charge sheet filed against them in Spl.C.C.No.115 of 2007 on the file of the Learned Chief Judicial Magistrate, Salem and to quash the same.
2. According to the Learned Senior Counsel for the Petitioners, the Respondent/Complainant registered a case against them in respect of offences under Sections 120 (B), 409, 420, 468 , 471 of IPC and Section 13(2) r/w (1) ( c) and (d) of the prevention of corruption Act, 1988.
3. The Learned Counsel for the Petitioners submits that the investigation was conducted by the Vigilance Officer and he furnished a report holding that the A1 to A4 being a public servant of Horticulture Department were entrusted with the job of prompt implementation of the Central Sector Scheme on Integrated Programme of Development of Spices during the year 1998 to 1999 in Yerkaud Block, Salem District. Further, A5 to A8 are public servants from Salem District Co-op Agro Service Society Ltd., Salem and Attur Agro Engg. and Service Co-op. Centre Ltd., Attur. A9 and A10 are private persons, who served as Presidents of the aforesaid Societies during the relevant period.
4. The Learned Counsel for the Petitioners contends that it is the case of Respondent/Complainant/prosecution accused that A1 to A3, A5, A6 and A10 and A7, A8 and A9 in connivance with A4 by abusing their official position that these dishonest intention of cheating the Government and misappropriation of Government Funds, created false documents, used them as genuine, committed forgery of signatures and finger prints and caused loss to the Government Funds to an extent of Rs.5,25,675/- and A1 to A4 derived illegal pecuniary gain to an extent of Rs.2,18,525/-, besides temporary misappropriation of beneficiaries contribution amount by A2 and A3 from April to November, 1999 and thereby committed offences punishable under Section 120 (B) r/w 409, 420, 468, 471 IPC and Section 13(2) r/w 13(1) ( c ) and (d) of the Prevention of Corruption Act, 1988.
5. The Prime plea taken on behalf of the Petitioners is that in the present case, the Government of Tamil Nadu after examining the Report of Vigilance Authority have decided to drop the criminal action against one V.Ranganathan (an accused) along with the Petitioners and initiated Departmental Proceedings against him at this stage. It is also represented on behalf of the Petitioners that the State Government directed the Commissioner of Horticulture and Plantation Crops to institute Departmental Disciplinary Proceedings against the Officer, V.Ranganathan, who was cited as fourth accused in the case registered by the Vigilance Department.
6. The Learned Counsel for the Petitioners projects an argument that when the Government recommended Departmental Action to one Accused Officer (V.Ranganathan), in fact, should have directed the concerned authorities to take Departmental Action against other accused officers viz., the Petitioners.
7. That apart, the Learned Counsel for the Petitioners brings it to the notice of this Court that in terms of the Report submitted by the Vigilance Department, the main accused is one V. Ranganathan and that the Government dropped criminal action against him.
8. In this connection, the Learned Counsel for the Petitioners forcefully takes a stand that the prosecution case wholly rest on the investigation conducted by the Vigilance Department and when the criminal action was dropped against the said V. Ranganathan (cited as A4) by the Government action against others viz., the Petitioners also to be dropped.
9. The Learned Counsel for the Petitioners invites the attention of this Court to the fact that the Petitioners projected W.P.No.718 of 2008 praying to call for the records of the Director of Vigilance and Anti Corruption dated 28.08.2008, seeking sanction for prosecution from the Heads of Department in so far as the Petitioners are concerned and for issuance of directions to the Government of Tamil Nadu to initiate departmental action against the Petitioners and in that, a notice of motion was ordered in the said writ petition. Also that, it is the plea of the Petitioners that the trial of Spl.C.C.No.115 of 2007 on the file of the Learned Chief Judicial Magistrate, Salem is taken up for hearing, etc.,
10. Conversely, it is the contention of the Learned Additional Public Prosecutor for the Respondent that in the subject matter in issue, a case was registered against the Horticulture Officer (A1) Salem and two FDOs (A2 and A3) to investigate into the allegation of malpractice, cheating and misappropriation of funds in the implementation of Central Sector Scheme on Integrated Programme Developmental Spices sponsored by the Government of India and that the investigation disclosed the involvement of few from officials (A4 to A7) including the then ADH, Salem private persons (A8 to A9) in the said malpractice. Further, after completion of the investigation, a report was forwarded to the Government, requesting sanction to prosecute 10 accused, including the then HO, Salem two FDOs, the then ADH, Salem, three each from the Salem Agro Society Ltd., and Attur Agro Society.
11. Advancing his arguments, the Learned Additional Public Prosecutor for the Respondent brings it to the notice of this Court that the State Government, while agreeing, sanction to prosecute 9 out of 10 persons declined to accord sanction to prosecute the then ADH, Salem. Finally, a charge sheet was filed before the Court of Chief Judicial Magistrate, Salem on 26.10.2007 against 9 accused. In fact, A5 (K. Muthusamy) expired on 08.08.2005 and the death certificate was filed before the Trial Court on 04.12.2007 and a request was made to treat the charges against him as abated.
12. Proceeding further, it is represented on behalf of the Respondent/Complainant that A1 to A4, A6, A8 and A9 filed W.P.Nos.718 of 2008 and 328 of 2009 before this Court, praying to quash the sanction of prosecution obtained from the Heads of Department concerned and direct the Commissioner of Agriculture to issue suitable directions to initiate departmental action against them also as ordered against one V.Ranganathan (the then ADO of Horticulture, Salem) in G.O.(3D)No.242 , Agriculture (AA7) Department, dated 25.09.2006 and the said writ petitions were dismissed on 28.08.2008 and 11.06.2009 respectively. Therefore, A1 to A4, A7, A8 and A9 filed the present criminal original petition before this Court.
13. Expatiating his submission, the Learned Additional Public Prosecutor for the Respondent submits that the investigation reveals the involvement of Petitioners with regard to the allegations levelled against them and further takes a stand that just because sanction for launching the prosecution was not granted against one Ranganathan, in the instant case on hand, the Petitioners cannot claim to be absolved of criminal charges pending against them in Spl.C.C.No.115 of 2007, on the file of the Learned Chief Judicial Magistrate cum Special Judge, Salem and that the Petitioners / accused, cannot claim only for initiation of Departmental Action when the Criminal Proceedings as the offences committed by them are serious in nature.
14. The stand taken on behalf of the Respondent/Complainant is that the Director of Vigilance and Anti Corruption, on completion of investigation, sent proposal for according sanction to prosecute against the Petitioners and also against one V. Ranganathan (erstwhile Assistant Director of Horticulture, Salem) to the Government in Letter.No.RC.134/2000/HORTI/SL. Dated 27.09.2002.
15. As a matter of fact, sanction to prosecution was granted under Section 19 (1) ( c ) of the Prevention of the Corruption Act, 1988 only against the Petitioners. However, the sanction to prosecute under Section 19(1) (b) of the Prevention of Corruption Act, 1988 was not accorded against the Accused Officer, V. Ranganathan.
16. It is also the stand of the Respondent/Complainant that in addition to initiation of criminal prosecution Rule 9 (A) of Tamil Nadu Civil Services (D & A) Rules does not prohibit criminal action against the Petitioners besides initiating departmental actions against the Petitioners/accused.
17. By means of a Reply, the Learned counsel for the Petitioners submits that a reading of the finding given by the Enquiry Officer in the Departmental enquiry conducted against V. Ranganathan would establish that he was involved in the offences alleged to have been committed by the Petitioners and in fact, the Petitioners had committed only on the instructions of the said V. Ranganathan. In fact, the punishment was awarded to the main accused V. Ranganathan is to withhold of Rs.300/- every month from his salary for a period of three years and further that he was alleged to retire from service.
18. In the above back drop, the Learned Counsel for the Petitioners, strenuously contends that since the Petitioners are similarly placed like that of the Accused Officer, V. Ranganathan, why the Petitioners are alone to face the unnecessary Ordeal of facing the Criminal Proceedings.
19. In fact, the stand of the Petitioners is that the State Government had adopted a discrimination while dropping the criminal action against the main accused, V. Ranganathan accorded sanction for prosecution to other similarly placed accused individuals As such the charges levelled against the Petitioners are liable to be quashed by this Court on the simple ground 'Discrimination Alone'.
20. At this stage, this Court pertinently points out that the real test for determining whether the charge ought to be considered groundless is that where the materials are such that even if unrebutted make out no case whatsoever, as per the decision in Om Prakash ..vs.. State'' reported in 1983 Crl.L.J. Page 1151, 1153 (Cal.) DB.
21. In the considered opinion of this Court, as a matter of fact, at the time of framing of charges, a Court of Law is only to see a prima facie case. The probative value of the materials on record, at the time of framing of charges, cannot be gone into by a Court and in fact, the materials projected by the Prosecution is to be accepted as a credible and truthful one at that stage, as opined by this Court.
22. It cannot be lost sight of the well settled legal principle that at the time of framing of charges, a Court of Law is to see, if there is enough ground for presuming that the accused persons had committed offences as alleged by the Prosecution. If the answer is in affirmative, then a Court of Law cannot even pass an order of 'Discharge' or in reality, the accused persons are to face the trial proceedings. Suffice it for this Court to state that, strict standard of proof while evaluating the materials to establish whether there are prima facie case against the accused is not to be resorted to.
23. In law, after framing of charges, there cannot be 'Discharge' but only an 'Acquittal' based on a finding of not guilty turning on the merits of the case. A Court of Law at the time of framing of charge is not bound to evaluate every piece of material placed before it by the police together with the charge sheet. Even a closer and deeper appreciation of evidence, at the time of framing of charge, is not permissible in the considered opinion of this Court. It cannot be gainsaid that at the time of framing of charges, a Court of Law is required and is to consider the Police Report filed under Section 173 of Criminal Procedure Code together with the accompanying documents sent. Further more, the accused persons have a right of being heard and nothing beyond that. At that time of framing charges, even the accused persons may be examined by a Court of Law based on the Prerogative Right.
24. As regards the cases falling under the Prevention of Corruption Act, 1988 there can be no stay of 'Trials'. However, in appropriate cases, the initiation of proceedings under Section 482 Cr.P.C can be pressed into service. However, even if a petition under Section 482 Cr.P.C is entertained by a competent Court, yet there can be no stay of trials under the Prevention of the Corruption Act, 1988.
25. In the considered opinion of this Court, one cannot ignore an important fact that the subsection 3 of (9) Prevention of Corruption Act, 1988 comprises of three clauses. For all the three clauses, the controlling non, obstante words are mentioned in the commencing portion to put it succintly, the prohibition is contend in clause ( c ) subsection (3) of Section 19 of the Prevention of Corruption Act, 1988.
26. It is to be remembered that even a very strong suspicion founded on material before the Court of Law is enough for framing of charge at the time of framing of charge. It is not proper for a Court of Law to weigh the pros and cons of all the implications of the materials not for shifting the materials projected by the prosecution. The exercise at this stage should be limited to consider the police report and the documents to determine whether the allegations against the accused on behalf of which 'groundless' or whether there is a ground for presuming that the accused persons had committed the offences. Of course, the presumption therein is, a rebuttable one for which there must be an opportunity of participation in the 'Trial'.
27. It is true that the power possessed by the Hon'ble High Court under Section 482 of Cr.P.C are very wide. But the said power must be exercised with great care and caution. In the considered opinion of this Court, in fact, the inherent powers under Section 482 ought not to be exercised by the Honourable High Court to stifle a reasonable and legitimate prosecution. Only to prevent an abuse of process of a Court or otherwise to secure the ends of justice, the inherent powers of Section 482 Cr.P.C can be invoked, as opined by this Court. Furthermore, once the trial has commenced, the Petition under Section 482 of Cr.P.C for quashing the proceedings does not lie as per the decision Zoom Vision Vs. P. Manickam & Co., 2001 (4) Crimes page 96 (Madras).
28. One cannot brush aside a very vital fact that the powers/ jurisdiction under Section 482 of Cr.P.C should not be exercised so lightly by the Honourable High Court. The exercise of jurisdiction under Section 482 Cr.P.C is an exceptional or extraordinary one. In short, the exercise of judicial discretion is not essentially one of jurisdiction. But it must be based on the restraint, also a plenary power of a Court of Law is to be exercised with utmost care and circumspection, as opined by this Court, unlike a civil Court, a Criminal Court other than a High Court does not possess any inherent powers.
29. It is to be noted that before the trial Court for death of A9, Chinnappan, the death certificate was produced on 30.01.2012 and the same was recorded. Also that, for the death of A5, Muthusamy, death certificate was produced before the trial Court on 03.12.2007 and the same was recorded. However, the charges were framed against the accused on 01.08.2013.
30. Be that as it may, in the instant case on hand, before the trial Court in Spl.C.C.No.115 of 2007 ( in view of Spl.C.C.No.95 of 2014 on the file of the Learned Special Judge Prevention of Corruption Act Court, Salem) PW1 was examined in Chief on 08.10.2013. However, PW1 was not cross examined. Further, PW2 was examined on 11.11.2013. PW3 was examined in Chief on 08.04.2014. PW4 was to be examined on 24.08.2014. As such, it is latently and patently quite clear that before the trial Court, the main case is in 'Part-Heard Stage'. Also, it is represented on behalf of the Respondent that the competent authority to accord sanction, for taking cognisance of the offence against the Petitioners/Accused by the Learned Special Judge is not the Government and 'it is only the Head of Departments of the Petitioners/accused' who are competent to remove them from their office under Section 19(1) ( c ) of the Prevention of Corruption Act, 1988.
31. Apart from the above, it is to be pertinently pointed out by this Court that in fact, the Director of Vigilance and Anti- Corruption of completion of investigation sent proposal for according sanction to prosecute the Petitioners V. Ranganathan, 'formally, ADH, Salem' to the Government in letter dated 27.09.2002. But the sanction for prosecution was granted only against the Petitioners under Section 19 (1) ( c ) of the Prevention of Corruption Act. However, the sanction for prosecution under Section 19(1) (b) of the Prevention of Corruption Act, 1988 was not accorded in respect of the Accused Officer, V.Ranganathan.
32. As such, no mala fide could be attributed against the DVAC in the considered opinion of this Court. In short, just because sanction for initiating prosecution was not accorded against one V. Ranganathan. In the present case, other Petitioners / accused cannot take a plea that they should be absolved of the criminal charges pending against them in Spl.C.C.No.115 of 2007 (New Spl.C.C.No.95 of 2014) on the file of the Learned Special Judge for Prevention of Corruption Act cases, Salem. Further, when the trial of the main case had commenced and is in 'Part Heard Stage' then, the petition for quashing the proceedings of the trial Court is not per se maintainable in law, in the considered opinion of this Court. Consequently the criminal original petition fails.
33. In fine, the criminal original petition is dismissed. Further, inasmuch as the trial of the main case is in 'Part Heard Stage' , the Learned Special Judge for Prevention of Corruption Act Cases, Salem is directed to preferably to conduct trial proceedings of Spl.C.C.No.115 of 2007 (New Spl.C.C.No.95 of 2014) on day-to-day fashion and to dispose of the main case as expeditiously as possible. In this regard, the parties are directed to lend their unstinted assistance and cooperation to the trial Court. Moreover, the trial Court is directed to provide adequate opportunities to respective parties in conducting the trial proceedings. Liberty is granted to the Petitioners/Accused to raise all factual and legal pleas before the trial Court and to seek appropriate remedy in the main case in the manner known to law and in accordance with law. No costs. Consequently connected miscellaneous petitions are closed.
25.09.2014
Index : Yes/ No
Internet: Yes/No
gv/mra
M.VENUGOPAL, J.
gv/mra
To
The Chief Judicial Magistrate,
Salem.
Order made in
CRL.O.P.No.3403 of 2008
and
M.P.Nos. 1 & 2 of 2008
24.09.2014.