Part.1
Background of the Criminal revision
Hon’ble Madras High court vide an order dated 08.09.2023 this Court by exercising its powers under Section 397 Cr.P.C initiated a suo motu revision against the judgment and order dated 20.07.2023 passed by the Additional Special Court for Trial of Criminal Cases related to Elected M.P’s and M.L.A’s of Tamil Nadu, Chennai discharging the 2nd respondent/3 rd accused from C.C.No. 13 of 2019.
Second discharge petition was filed and allowed during the midway of trial when the previous one was dismissed and was confirmed by Supreme court
In the course, of the aforesaid order, Hon’ble Madras High Court found that the 2nd respondent had earlier filed a discharge petition which was dismissed by the trial court on 06.07.2016 and the dismissal order was affirmed by the Hon’ble Madras High Court dated: 11.11.2022 though Crl.O.P. No: 34130 of 2019.
The aforesaid dismissal order of the discharge filed by the 2nd respondent/3rd accused herein was affirmed by the Supreme Court dated: 12.12.2022
Hon’ble High Court noticed that midway during trial 2nd respondent had once again filed a discharge petition on the same grounds canvassed by him earlier before the Special court. The Learned Special judge vide impugned order dated 20.07.2023 discharged the 2nd respondent/3rd accused having discovered that the sanction granted by the Speaker of the Tamil Nadu Legislative Assembly under Section 19 of the Prevention of Corruption Act, 1988 was invalid.
Suo-Motu revision was taken by the Hon’ble Madras High Court against the discharge order on the second discharge application
In this backdrop, Hon’ble Madras High Court has exercised its suo-motu powers under Section 397 Cr.P.C to examine the orders of discharge dated 20.07.2023 suffered from any manifest illegality or procedural impropriety.
Hence, placing reliance on the Apex Court Judgment State of Karnataka v S. Subbegowda, reported in (2023) SCC Online SC 911, Hon’ble Madras High court fixed a date for examine whether the course adopted by the Special Court in entertaining a second discharge petition midway in the course of trial after the dismissal of the first discharge petition by the Hon’ble Supreme Court suffers from any illegality and grave procedural impropriety, particularly.
Notice to the 2nd respondent
Hon’ble Madras High court has issued notice to the 2nd respondent and Mr. Aswin Prasanna, Mr. Sagilesh Kumar and Mr. T. Vijay, have entered appearance for the 2 nd respondent.
Fixed date for final hearing
Hon’ble Madras Court to struck the balance and to ensure that the hearing of other matters is not indefinitely delayed and therefore fixed the final hearing at 3.00 pm on 12.02.2024 and 13.02.2024.
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Part.2
Final Orders
Prayer
Criminal Revision case filed under Section 397 of Cr.P.C. to call for the records on the file of the Additional Special Court for Trial of Criminal cases related to Elected MP’s and MLA’s of Tamil Nadu, Chennai passed in Crl.MP.No.4204 of 2023 in C.C.No.13 of 2019, dated 17.3.2023 and set aside the same.
Facts of the present case
1. This suo motu revision, under Section 397 & 401 of the Code of Criminal Procedure, 1973, is directed against an order dated 17.03.2023 passed by the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu at Chennai (hereinafter the “Special Court”) in Cr.M.P 4204 of 2023 in C.C. 13 of 2019 discharging the 2 nd respondent herein (the 3rd accused before the Special Court) from the case.
2.A summary of the background facts has been set out in the earlier order dated 08.09.2023 initiating the present proceeding. All the same, a brief summation is as follows:
i. Mr.I.Periyasamy, the 2 nd respondent (A3), was elected as a Member of the Tamil Nadu Legislative Assembly on a DMK ticket in May 2006. Between 2007 and May 2011 was a member of the State Cabinet as the Minister for Housing. The case of the prosecution is that between 2008 and 2009, one C. Ganesan (A1), an Inspector of Police in the SBCID (Core Cell), Chennai had entered into a criminal conspiracy with one Kavitha (A2) and the Minister I.Periyasamy (A3) to illegally obtain a HIG (High Income Group) Plot in the Mogappair Eri Scheme of the Tamil Nadu Housing Board. It is alleged that Ganesan (A1) had given an undated application to the then Chief Minister of Tamil Nadu Dr.M. Karunanidhi stating that his family was residing in a private house paying exorbitant rent suppressing the fact that he was actually residing in the TNHB Housing Quarters paying a paltry sum of around Rs 1180. In his undated representation made to the Chief Minister, Ganesan requested for allotment of a plot in the public quota.
ii. It is the case of the prosecution that the application made by Ganesan was not accompanied by any supporting documentary evidence. Nor did this petition bear the seal or sign of any officer to acknowledge receipt. The application was however numbered as 5732/HB-5(I)/08 on 06.03.2008 in the Housing Development Department and an office note was initiated on the same day with a suggestion that Plot No.1023 in the HIG category in Mogappair Eri Scheme of the Tamil Nadu should be allotted to A1 under the “impeccable honest Government servant” discretionary quota.
iii. This application was signed by one R.Sellamuthu, Secretary, Housing and Urban Development Department on 07.03.2008. This application was then processed at break neck speed and was approved by I. Periasamy (A3) in his capacity as Minister for Housing on 10.03.2008. On the same day the Government issued GO.2D No.170, Housing Urban Development (HG 5(1) allotting the aforesaid plot to A1. Thus, the process of numbering an undated application on 06.03.2008 culminating with the passing of a Government order on 10.03.2008 allotting a HIG plot was accomplished in just 96 hours. Considering the fact that 08.03.2008 and 09.03.2008 were a Saturday and Sunday, the time taken to perform this administrative feat was only 48 hours. In other words, it appears that the application given by A1 was numbered on a Thursday (06.03.2008), processed by the Secretary on a Friday (07.03.2008) and approved by the Minister on Monday (10.03.2008) followed by the release of Government Order at lightning speed on the very same day.
iv. On 18.03.2008 the Tamil Nadu Housing Board (TNHB) issued a memo to the ExecutiveEngineer,TNHB enclosing a copy of the GO issued on 10.03.2008. On the same day, the Manager (Marketing and Service), Mogappair Division, TNHB issued a provisional allotment order and intimated A1 that he was required to pay a sum of Rs. 74,13,100/- on or before 31.03.2008. Even before the provisional allotment order was issued A1 Ganesan entered into a JDA with A2 Kavitha on 16.03.2008 whereby it was agreed that A1 Ganesan would be entitled to 15% share and the remaining 85% UDS would go to A2 Kavitha. It was further agreed that A2 Kavitha would pay A1 Ganesan a sum of Rs. 74,13,100/- as a non-refundable deposit towards the full cost of the allotment of the plot. Pursuant to the aforesaid JDA, A2 issued a cheque dated 24.03.2008 in favor of the Executive Engineer, TNHB, Mogappair Division. This cheque was sent by A1 to the Executive Engineer on 27.03.2008, and a regular allotment order was issued in favor of A1 on the very next day ie., 28.03.2008. Thus, the entire process commencing with the numbering of an undated representation on 06.07.2008 culminating with the payment of consideration and the issuance of a regular allotment order took just 22 days.
v. Pursuant to the regular allotment order dated 28.04.2008, a sale deed dated 07.08.2008 was executed by the Executive Engineer, TNHB in favour of A1. On 19.01.2009, A1Ganesan executed a power of attorney in favour of A2 Kavitha which was registered on 23.01.2009 before the Sub-Registrar, Konnur. Using this power, A2 Kavitha, as the agent of A1, sold the plot to one Kalaiammal for a total sale consideration of Rs.1,01,38,400/-. In truly business style, A2 Kavitha issued a cheque for a sum of Rs.19,66,000/- in favour of A1 Ganesan being the 15% share payable to him under the JDA dated 16.03.2008. This cheque was encashed by A1 Ganesan on 20.07.2009.
vi. The prosecution case is that the entire conspiracy was orchestrated by A3 Perisamy by allotting the HIG plot under the Impeccable Honest Government Servant quota even though A1 Ganesan had not asked for allotment under the said quota. It is alleged that A1 Ganesan was set up to ask for a plot to reside with his family and in furtherance of the conspiracy with A2 and A3 the allotment was stage-managed for the purposes of obtaining an unfair pecuniary advantage.
vii. In May 2011, the DMK, of which A3 was a Minister, was voted outof power. In keeping with the usual practice of the DVAC, with the change in power, the alleged wrongdoings of the past regime became the focal point for investigation. A discreet enquiry was conducted by the DVAC on the HIG Allotment made in favour of A1 and a report was submitted to the Directorate on 23.01.2012. Finding that there was something seriously amiss about the manner in which the allotment was made in hot haste, the Tamil Nadu Vigilance Commission, vide order dated 07.02.2012, accorded permission to register a regular case. Consequently, an FIR in Crime No.4 of 2012 was registered by the DVAC for the offences under Sections 120-B, 420 and 109 of the IPC and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against C.Ganesan(A1), Padma (A2) and I.Perisamy(A3).
viii. In the course of investigation, the IO R. Murali examined 22 witnesses and collected 45 documents. A final report under Section 173(2) Cr.P.C was laid before the Special Court for Cases Under the Prevention of Corruption Act on 25.03.2013.It is seen from the records that the Speaker of the Tamil Nadu Assembly had accorded sanction vide proceedings dated 17.12.2012.The Special Court took cognizance of the case in C.C.No.19 of 2013 on 24.06.2013 and directed summons to be issued for the hearing on 19.08.2013.
First discharge petition
3. It is seen from the records that on 19.08.2013, A1-A3 appeared before the Special Court through counsel and copies of the material case papers were furnished to them on the same day. In the meantime, the prosecution filed Crl.MP.No.42 of 2014 for permission to conduct further investigation alleging that further material had come to light regarding the role of A1 Ganesan. This petition was allowed by the Special Court by an order dated 30.01.2014. A supplementary charge sheet was filed by S.M. Mohamed Iqbal, Additional Superintendent of Police, Vigilance and Anti Corruption on 13.06.2014 alleging that A1 was actually residing in a TNHB flat at KK.Nagar paying rent of Rs.1180/- and that he had suppressed this fact by claiming that he required accommodation as he was paying high rent for Government accommodation.
4. On 04.09.2013, A1 Ganesan filed a petition for discharge under Section 239 Cr.P.C. This petition was dismissed by the Special Court on 06.08.2015 on which date the matter was adjourned for framing charges on 31.08.2015. On 31.08.2015, A2 filed Crl.M.P.No. 1184 of 2015 seeking discharge. This petition was adjourned from time to time for 10 hearings until it was finally dismissed on 12.01.2016. The matter was again directed to be posted for framing charges on 02.02.201
15. After 11 months, this Court pronounced orders in Crl.O.P.No.34130 of 2019 filed by A3 and Crl.R.C.No.1112 of 2015, Crl.R.C.Nos. 957 and 983 of 2016, dismissing the quash petitions and the criminal revisions challenging the orders of the Special Court declining discharge. A3 I. Periasamy filed SLP (Criminal) 11381-11382 of 2022 before the Hon’ble Supreme Court challenging the order of this Court dated 11.11.2022. This SLP was also dismissed as withdrawn on 12.12.2022. Thus ended the saga of the discharge petitions.
Former speaker was summoned and examined to accord the sanction for prosecution (sanction marked as Ex.P1)
16. It is seen from the records of the Special Court that there was a change in guard in May 2022 when the earlier judge who had unsuccessfully persevered to conduct trial was moved out and another successor was directed to assume charge. After the dismissal of the SLP, the Special Court took up the matter and issued summons to LW-1 P. Dhanabal, the former Speaker of the Tamil Nadu Legislative Assembly who had accorded sanction for prosecution. On 15.02.2023, LW-1 appeared before the Court and was examined as PW-1. The sanction order was marked through him as Ex.P1, and the matter was posted on 21.02.2023
Petition under section 19 PC Act filed to discharge the accused
17. On 21.02.2023, very curiously, a petition in Crl.M.P.No.4204 of 2023, purportedly under “Section 19 of the P.C Act”, was filed at the behest of A3Periasamy with a prayer to discharge him from the case. At first blush, this Court thought that this was a typographical error since Section 19 of the Prevention of Corruption Act deals with the sanction for prosecution and does not deal with discharge at all. However, on closer scrutiny, it is self-evident that this was part of a well-orchestrated plot to somehow short-circuit the proceedings before the Special Court.
Suo motu proceedings after discharge on the above said petition
18. This Court, vide order dated 08.09.2023 initiated this suo motu proceeding after finding that the order of the Special Court dated 17.03.2023 discharging the 2 nd respondent (A3) from the case, prima facie, suffered from several manifest illegalities and legal errors resulting in miscarriage of justice. This Court directed notices to be issued to the State and the 2nd respondent herein returnable on 12.10.2023.
19. On 12.10.2023, notice was ordered through a Special Messenger of this Court to the 2 nd respondent as the Special Court found itself unable to serve notice on the 2 nd respondent. The 2 nd respondent has since been served and has entered appearance through counsel. The entire material forming the subject matter of the order dated 08.09.2023 was compiled by the Registry of this Court in the form of a paper book. Copies of the same were handed over to the State Prosecutor as well as the counsel on record for the 2 nd respondent. On 08.01.2024, this Court passed an order fixing 12.02.2024 and 13.02.2024 as the dates for final hearing of these matters. These matters were heard out finally on the aforesaid dates and the matter stood reserved for orders on 13.02.2024.
Law regarding Suo motu revision jurisdiction
23. Before examining the rival contentions, it is first necessary to clear the air on the powers of this Court to initiate a suo motu revision under Sections 397 & 401 of the Cr.P.C. Section 397 (1) Cr.P.C reads as follows:
“Section 397 cr.p.c
Section 401 cr.p.c”
Case laws regarding suo motu revisional jurisdiction
24. The power of the High Court to invoke the powers under Section 397/401 Cr.P.C has been recognised in several judgments of the Supreme Court. In Eknath ShankarraoMukkawar v. State of Maharashtra, (1977) 3 SCC 25, which was one of the early cases under the 1973 Code, the Supreme Court had noticed the suo motu revisional powers of the High Court under the Code. The Supreme Court observed:
“6. ……..High Court’s power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under Section 397 read with Section 401 of the Criminal Procedure Code, 1973, inasmuch as the High Court can “by itself” call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court’s exercise of power of revision, suo motu, which continues as before in the new Code.”
25. In Krishnan v. Krishnaveni, (1997) 4 SCC 241, the Supreme Court once again reiterated the suo motu revisional powers of the High Court under Sections 397/401 Cr.P.C. It observed:
“Section 401 of the Code gives to every High Court the power of revision. Sub-section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389 and 391 and on a Court of Sessions by Section 307. Apart from the express power under Section 397(1), the High Court has been invested with suo motu power under Section 401 to exercise revisional power.”
In an important passage, the principles governing the exercise of this power was explained in the following way:
“The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order”.
26. More recently, in Honniah v State of Karnataka, (2022 SCC Online SC 1001), the Supreme Court speaking through Dr. D.Y Chandrachud, J (as the learned Chief Justice then was) and J.B Pardiwala, J, have observed as under:
“The revisional jurisdiction of a High Court under Section 397 read with Section 401 of the CrPC, is a discretionary jurisdiction that can be exercised by the revisional court suo motu so as to examine the correctness, legality or propriety of an order recorded or passed by the trial court or the inferior court. As the power of revision can be exercised by the High Court even suo moto, there can be no bar on a third party invoking the revisional jurisdiction and inviting the attention of the High Court that an occasion to exercise the power has arisen.”
In the light of the aforesaid legal position, the power of this Court to initiate a suo moto revision under Sections 397/401 Cr.P.C against an order of an inferior criminal court is no longer res integra and has travelled far beyond the orbit of Courtroom debates.
Further the present court (judge) holds the portfolio for MP/MLA cases
27. It must also be noted that at the time of initiating suo moto proceedings vide order dated 08.09.2023 as well during the final hearing of this matter, this Court was holding the portfolio for MP/MLA cases across the State of Tamil Nadu. That apart, pursuant to the administrative order dated 7.2.2024, of the Hon’ble Chief Justice the instant case ie., Suo Motu Crl.R.C.No.1559 of 2023 as well as other connected cases have been specifically ordered to be listed before this Court for hearing and disposal.
Second discharge petition filed (grounds) under section 19 PC Act and orders of discharge
29. On 21.02.2023, the 2 nd respondent (A3) once again filed a petition seeking discharge. Ingeniously, the petition was styled and filed under Section 19 of the Prevention of Corruption Act, 1988 although the said provision had nothing to do with discharge at all. The petition proceeds to state that (a) trial has commenced and that (b) the then Speaker of the T.N. Legislative Assembly had been examined and cross-examined as LW-1. It then proceeds to set out the following legal grounds seeking discharge:
a. The Speaker had accorded sanction under Section 19(1)(c) of the P.C Act, 1988. This sanction was invalid as it was granted by an incompetent authority. The competent authority, according to A3, was the Governor as he is the executive head of the State Government.
b. The Speaker is not the competent authority to grant sanction since he is not empowered to remove an MLA from office. What is contemplated under Section 19 is sanction but the Speaker in the instant case had granted only permission.
c. The prosecution was bad for want of sanction under Section 197 Cr.P.C since the IPC offences alleged against the 2 nd respondent (A3) were admittedly done while discharging his duty as a Minister.
d. The prosecution and the Speaker (LW-1) failed to take note of Section 19(4) of the P.C Act, 1988.
In discharge orders the contentions lack of sanction and incompetency of speaker were rejected
30. At this juncture, it must be noticed that the ground of lack of sanction under Section 197 Cr.P.C and the incompetency of the Speaker to grant sanction under Section 19 of the P.C Act, 1988 were expressly raised by A3 and rejected by the Special Court in paragraph 8 of its order dated 06.07.2016 while dismissing the first discharge application of the 2nd respondent (A3) which order was also affirmed by this Court on 11.11.2022
Hon’ble High court after repeated the impugned order dated 17.03.2023 in Crl.M.P 4204 of 2023 in words discharging the 2nd respondent (A3) has gone for the questions for considerations:
Questions for considerations
33. From a reading of the impugned order of the Special Court dated 17.03.2023 and the submissions of the learned senior counsel, the following are the questions that arise for consideration:
i. Whether a second discharge petition is maintainable, if so, at what stage?
ii. Whether the prosecution of the 2 nd respondent (A3) in C.C. 13 of 2019 is bad for want of sanction under Section 197 Cr.P.C?
iii. Who is the competent authority to grant sanction under Section 19 of the P.C Act, 1988 in respect of the offences alleged to have been committed by the 2nd respondent (A3)?
Maintainability of the second discharge petition
35. The question as to when and at what stage a discharge petition could be entertained in a prosecution under the P.C Act fell for consideration before the Supreme Court in State of Karnataka v S. Subbegowda (2023) 4 MLJ (Cri) 393 (SC) . The Supreme Court, after considering its earlier decision in Nanjappa v State of Karnataka, (2015) 14 SCC 186, has observed as under:
“Having regard to the afore-stated provisions contained in Section 19 of the said Act, there remains no shadow of doubt that the statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of the Government/authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). It is also well settled proposition of law that the question with regard to the validity of such sanction should be raised at the earliest stage of the proceedings, however could be raised at the subsequent stage of the trial also. In our opinion, the stages of proceedings at which an accused could raise the issue with regard to the validity of the sanction would be the stage when the Court takes cognizance of the offence, the stage when the charge is to be framed by the Court or at the stage when the trial is complete i.e., at the stage of final arguments in the trial. Such issue of course, could be raised before the Court in appeal, revision or confirmation, however the powers of such court would be subject to sub-section (3) and sub section (4) of Section 19 of the said Act. It is also significant to note that the competence of the court trying the accused also would be dependent upon the existence of the validity of sanction, and therefore it is always desirable to raise the issue of validity of sanction at the earliest point of time. It cannot be gainsaid that in case the sanction is found to be invalid, the trial court can discharge the accused and relegate the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with the law.”
From the aforesaid, it is clear as the day that a plea of discharge can be sought (a) at the time of taking cognizance (b) at the stage of framing charges and (c) at the stage of final arguments. In the case on hand, the second discharge petition was filed after stages (a) and (b) and before stage (c). Consequently, a plea of discharge, after framing charges and in the midst of trial was not maintainable. This conclusion is fortified by the following observations in paragraph 15 in Subbegowda’s case:
“As a matter of fact, such an interlocutory application seeking discharge in the midst of trial would also not be maintainable. Once the cognizance was taken by the Special Judge and the charge was framed against the accused, the trial could neither have been stayed nor scuttled in the midst of it in view of Section 19(3) of the said Act. In the instant case, though the issue of validity of sanction was raised at the earlier point of time, the same was not pressed for. The only stage open to the respondent-accused in that situation was to raise the said issue at the final arguments in the trial in accordance with law.”
Thus, once the first discharge petition had been rejected and the trial had commenced, it was not open to the accused to commence another round of discharge proceedings in the midst of trial.
37. In fact, a similar attempt was made in K. Selvam v State (2010) Cr.LJ 3240, to file a discharge petition under Section 19 of the P.C Act, 1988. This was repelled by this Court with the following observations:
“In so far as the power to discharge an Accused after the framing of charges is concerned, I find no provision in Section 19 of the Act or in any other provisions of the said Act to empower the Magistrate to do so. Similar provision is not found in the Code of Criminal Procedure also. Therefore, Section 19 of the Act cannot be interpreted in such a manner to empower the Magistrate to discharge an Accused after the trial has commenced.”
The decisions in State of Karnataka v S. Subbegowda (2023) 4 MLJ (Cri) 393 (SC) andK. Selvam v State (2010) Cr.LJ 3240 apply on all fours to the case on hand. This Court has no hesitation in concluding that the 2 nd respondent was committing the grossest abuse of process by filing Cr.M.P 4203 of 2023 seeking discharge for the second time with the obvious intent of scuttling the trial.
Arguments on discharge after charge framing and findings of the Hon’ble Madras High Court on the arguments
38. However, Mr. Ranjit Kumar, learned senior counsel would contend that the decision in Nanjappa v State of Karnataka, (2015) 14 SCC 186 was clear to the effect that a plea of discharge could be raised “at any stage” which implied that it could be raised even in the midst of trial. Before analyzing this decision, it is necessary to bear in mind the following caution administered by the Constitution Bench in Padma Sundara Rao v. State of T.N., (2002) 3 SCC 533.
Interpreting Nanjappa’s case
From the aforesaid facts and observations, the following conclusions emerge:
a. Nanjappa’s case did not involve the filing of a discharge petition amid trial. The case did not involve a discharge petition at all.
b. The issue of sanction was raised only during the stage of arguments. The High Court incorrectly held that the issue of sanction could not be raised at the stage of arguments.
c. The Supreme Court held that once the Court concluded that the prosecution lacked sanction it could not go ahead and convict/acquit the accused since it lacked jurisdiction to proceed with the case. The only option is to discharge the accused and relegate the parties to obtain proper sanction.
d. The error committed by the trial court in Nanjappa’s case was that it had acquitted the accused after noticing that sanction was required. On facts, since the prosecution failed for sanction, the trial could have only discharged the accused and not acquitted him. This conclusion is because discharge does not bar a subsequent trial after obtaining sanction whereas an acquittal bars a fresh trial under the principle of auterofiois acquit under Section 300 Cr.P.C.
39. From the aforesaid discussion, it would be clear that on facts Nanjappa v State of Karnataka, (2015) 14 SCC 186 was a case where the issue of sanction was agitated before the trial court at the stage of final arguments. This is in complete consonance with the later view of the Supreme Court in State of Karnataka v S. Subbegowda (2023) 4 MLJ (Cri) 393 (SC), wherein Nanjappa v State of Karnataka, (2015) 14 SCC 186, has been referred to and followed. The use of the expression “any stage” by the Supreme Court in Nanjappa v State of Karnataka, (2015) 14 SCC 186 cannot be divorced from the facts of the case before it.
40. Mr. Ranjit Kumar, learned senior counsel also referred to State of Karnataka v C. Nagaraja swamy (2005) 8 SCC 370, to contend that the power of discharge is available even after the framing of charges. This decision has been elaborately considered by S. Nagamuthu, J in K. Selvam v State (2010) Cr.LJ 3240. This Court is in complete agreement with the following conclusions of the learned judge:
“In that case, factually, cognizance was taken on the basis of a sanction order, charges were framed, the Accused was tried and finally, he was acquitted by the Trial Court on the ground that the sanction order was withoutjurisdiction and therefore, the very taking of cognizance as against the said Accused was bad in law. Subsequently, after getting fresh valid sanction, proceedings were again initiated on which cognizance was once again taken by the Trial Court. The Accused sought for quashing the latter proceedings. The matter ultimately came before the Honourable Supreme Court. In those circumstances, the question before the Honourable Supreme Court was, whether the order of acquittal recorded in the earlier proceedings for want of valid sanction would be a bar for the fresh proceedings in terms of Section 300 of Cr.P.C. A close reading of the above would go to clearly substantiate my understanding of the judgment of the Honourable Supreme Court that it was not at all the question before the Honourable Supreme Court as to whether an Accused can be discharged after the framing of charges.”
Hon’ble Madras High Court concluded that discharge after charge framing was not maintainable
41. For all the aforesaid reasons, the inescapable conclusion is that once the trial had commenced Crl.M.P.No. 4204 of 2023 filed by the 2 nd respondent (A3) seeking discharge was not maintainable. Consequently, the Special Court committed a gross illegality in entertaining and allowing a second discharge petition in the midst of trial. This Court has no hesitation in holding that the order dated 17.03.2023 passed in Crl.MP.No.4204 of 2023 discharging A3 smacks of manifest illegality and grave procedural impropriety warranting interference under Sections 397/401 Cr.P.C.
Sanction under section 197 Cr.P.C
42. Mr. Ranjit Kumar and Mr. A. Ramesh, learned Senior Advocates submitted in unison that the prosecution against the 2 nd respondent for offences under the Indian Penal Code was invalid for want of sanction under Section 197 Cr.P.C. The Special Court has, in paragraph 30 of the impugned order, also opined that the 2 nd respondent was a public servant within the meaning of Section 21 of the IPC.
Judgments on sanction under section 1978 Cr.P.C
From a plain reading of Clause (1) of Section 197 Cr.P.C it is clear that it would apply only to persons who commit offences “while acting or purporting to act in the discharge of his official duty” and are removable from office with the sanction of the Government. Admittedly, on the date of the commission of the offence, the petitioner was an MLA and a Minister in the State Cabinet. It is too fundamental that an MLA, who is an elected representative of the people, cannot be removed from office at the behest of the Government. The point is no longer res integra. In State of Kerala v. K. Ajith, (2021) 17 SCC 318, the Supreme Court has observed thus:
“A plain reading of Section 197Cr.P.C clarifies that it applies only if the public servant can be removed from office by or with the sanction of the Government. However, MLAs cannot be removed by the sanction of the Government, as they are elected representatives of the people of India. They can be removed from office, for instance when disqualified under the Xth Schedule of the Constitution for which the sanction of the Government is not required.”
44. The argument that an MLA is a public servant within the meaning of Section 21 of the Indian Penal Code was raised and rejected long ago by a Constitution Bench in R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, wherein it was held as follows:
“To say that MLA by virtue of his office is performing policing or prison officers’ duties would be apart from doing violence to language lowering him in status. Additionally, clause (7) does not speak of any adjudicatory function. It appears to comprehend situations where as preliminary to or an end product of an adjudicatory function in a criminal case, which may lead to imposition of a prison sentence, and a person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person in confinement. The decisions in Homi D. Mistry v. Shree Nafisul Hassan [ILR 1957 Bom 218 : 60 Bom LR 279] , Harendra Nath Barua v. Dev Kanta Barua [AIR 1958 Ass 160] and Edward Kielley v. William Carson, John Kent [(1841-42) 4 Moo PCC 63] hardly shed any light on this aspect. Therefore, the submission that MLA would be comprehended in clause (7) of Section 21 so as to be a public servant must be rejected.”
Consequently, the contention that the prosecution against the 2 nd respondent (A3), was bad for want of sanction under Section 197 Cr.P.C must be rejected as completely misconceived.
Sanction under section 19 P.C Act
45. The next ground of attack by Mr. Ranjit Kumar, and Mr. A. Ramesh learned senior counsel for the 2 nd respondent was on the sanction/permission accorded under Section 19 of the P.C Act, 1988. According to them, sanction ought to have been given by the Governor and not by the Speaker. It was submitted by them in unison that Section 19(1)(b) would apply to the 2 nd respondent (A3), and consequently by virtue of the Prevention of Corruption (Amendment), Act, 2018 the amended Section 19(1)(b) constituted a change of circumstance for agitating the issue of sanction in the second discharge petition. In fairness to the learned senior counsel, neither of them attempted to support the palpably perverse logic of the Special Court, which has been adverted to earlier.
48. As already noticed above, the 2 nd respondent had initially pitched his case under Section 19(1)(c). The Special Court in paragraph 38 of the impugned order founded its reasoning on Section 19(1)(a). Not to be outdone, the contention raised on behalf of the 2 nd respondent in the course of arguments was based neither on Section 19(1)(a) nor on Section 19(1)(c) but on Section 19(1)(b). Thus, a game of musical chairs was being played by the 2 nd respondent on the issue of sanction within the three limbs of Section 19(1).
MLA is not a person who can be removed with the sanction of the government
49. Having closely examined the provisions, the contention that Section 19(1)(b) applies to the case of the 2 nd respondent is completely misconceived. In the first place, Section 19 (1)(b) applies only to a person who is employed or was, at the time of the commission of the offence employed in connection with the affairs of the State and could be removed from office by the State Government. As we have already seen, the decision in State of Kerala v. K. Ajith, (2021) 17 SCC 318 settled the position that an MLA is not a person who can be removed with the sanction of the Government.
Object of 2018 Amendment discussed
From the above, it is clear that the object of the 2018 Amendment was to extend the protection already available under Section 197 Cr.P.C to those officers who had retired or had demitted public office. It was for this reason that only Clauses (1)(a) and (1)(b) of Section 19 were amended to extend the protection to public servants under the Union under Section 19(1)(a), and public servants under the State under Section 19(1)(b). Consequently, Clauses (1)(a) and (1)(b) of Section 19 can apply only if the public servant can be removed from office with the sanction of the respective Government. In view of the decision in State of Kerala v. K. Ajith, (2021) 17 SCC 318, the case of the petitioner cannot fall in either clauses i.e., Clauses (1)(a) and (1)(b) of Section 19.
Provision in the second discharge petition was wrong
51. The 2 nd respondent was fully aware and appraised of this position since his second petition for discharge is founded entirely on Section 19(1)(c) and not on Clauses (1)(a) and (1)(b) of Section 19. Thus, the contention raised on the basis of Section 19(1)(b) is rejected as an afterthought and is completely devoid of merits.
Legal position to grant sanction to MLA
In the instant case, as on the date of taking cognizance of the offences, the 2 nd respondent was an MLA with the result that it was the Speaker and not the Governor who was the competent authority to grant permission to prosecute the 2 nd respondent in terms of the judgment of the Supreme Court in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626. On this analysis, the permission/sanction granted by the Speaker in the instant case does not suffer from any infirmity or want of authority.
Important ground of argument was rejected by placing reliance on Subbegowda’s case
54. Coming to the other submission of Mr. Ranjit Kumar, learned senior counsel that the second discharge application was filed pursuant to the liberty granted by the Special Court, it is first necessary to set out the relevant passage from the order of the Special Court dated 06.07.2016 passed in the first discharge petition: “On perusal of records admittedly at the time of registration of the case the petitioner was not a Minister and only an MLA. And hence, the contention raised by the learned senior counsel cannot be accepted without giving an opportunity to the prosecution to examine the sanctioning authority to establish that the speaker has got the authority to accord sanction.”
A reading of the aforesaid passage does not suggest the grant of any liberty as contended by the learned senior counsel. Even if the Court is to read this passage the way suggested by him, in the light of the law laid down in State of Karnataka v S. Subbegowda (2023) 4 MLJ (Cri) 393 (SC), it is not possible to conclude that the discharge petition could be maintained mid-way through trial.
Conclusions and directions
58. In the result, the following order is passed:
i. The impugned order dated 27.03.2023 passed by the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu (hereinafter the “Special Court”) in Cr.M.P 4204 of 2023 in C.C. 13 of 2019 is set aside.
ii. As the case in C.C. 13 of 2019 has been transferred to the Special Court for trial of P.C Act Cases, Chennai pursuant to the discharge of A3 from the case, the Special Court for P.C Act Cases, Chennai shall forthwith re-transmit the case records to the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai.
iii. Upon such transmission, the case shall stand restored to the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai in its original case number. The aforesaid said exercise shall be completed within one month from today ie., on or before 26.03.2024.
iv. All the accused shall appear before the Special Court on 28.03.2024. Upon such appearance, all the accused shall furnish a bond of Rs.1,00,000/- each with two sureties under Section 88 Cr.P.C. to the satisfaction of the Special Court.
v. The Trial Court shall re-commence trial and ensure that the accused cross-examine the prosecution witnesses on the day they are examined-in-chief, as directedby the Supreme Court in Vinod Kumar vs. State of Punjab, [2015 (1) MLJ (Crl.) 288]. If the accused adopt any dilatory tactics, it is open to the Trial Court to insist upon their presence and remand them to custody, as laid down by the Supreme Court inState of Uttar Pradesh vs. Shambhu Nath Singh [JT 2001 (4) SC 319].
vi. The trial court shall, as far as practicable, conduct trial from day to day, and shall complete the same on or before 31.07.2024. A compliance report be sent thereafter to the Registrar General of the High Court.
vii. Though obvious, it is made clear that this Court has not examined or commented upon the merits of the case which shall be decided by the Special Court on merits, without being influenced by any of the observations made here in above.
Suo Motu Cr.R.C 1559 of 2023 is allowed on the aforesaid terms.
Party
1. The State Directorate of Vigilance and Anti-Corruption Rep.by the Deputy Superintendent of Police Vigilance and Anti-Corruption Chennai City-I Department Chennai 600 028. 2.Thiru.I.Periyasamy S/o.Irulappa Servai Durairaj Nagar, West Govindapuram Dindigul. Formerly Minister for Tamil Nadu Housing Board Government of Tamil Nadu. … Respondents – Reserved On 13.02.2024 Delivered on 26.02.2024 CORAM THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH – SUO MOTU Crl.R.C.No.1559 of 2023 – 2024:MHC:6533
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I.Periyasamy case 20240226_2023_201300015592023_5
