IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7 TH DAY OF DECEMBER 2009 BEFORE THE HON’BLE MR.JUSTICE JAWAD RAHIM Crl.R.P. NO. 938/2009 BETWEEN: 1. SPECIAL PUBLIC PROSECUTOR IN SPECIAL C C NO.208/2004 ON THE FILE OF THE XXXVI ADDL SESSIONS JUDGE, (C H NO.37) BAN GALO RE 2. STATE BYS.P, SPECIAL INVESTIGATION CELL, VIGILANCE AND ANTI-CORRUPTION, CH EN N AT PETITIONERS [By Sri B V Acharya, Sr Counsel & Special SPP for P-i; Sri Sandesh J Chouta, Adv. for P2] AND: I. SELVI JAYALALITHA FORMER CHIEF MINISTER OF TAMIL NADU RESIDING AT NO.36 POES GARDEN CHENNAI-600 086. S 7. SMT SASIKALA NATARAJAN W/O M NATARAJAN NO.18, 3 RD STREET ABHIRAMAPURAM (EAST) CHENNAI-600 004 3. THIRU V N SUDHAKARAN Sb T T VIVEKANAN DAN NO.68, HABIBULLAH ROAD CHENNAI-600 017 4. SMT. J. ELAVARASI W/O LATE V JAYARAMAN NO.31, MANNAI NAGAR MANNARGUDI A.T PANNERSELVAM DIST 5. THIRU T.T.V DINAKARAN NO.2, 4 TH STREET VENKATESHWARA NAGAR AVENUE ADYAR, CHENNAI-600 020. RESPONDENTS [Sri A Navaneetha Krishnan, Adv for R-1; Sri A Kandasamy, Adv for R-2; Sri L.P Shanmugam Sundaram, Adv for R-3 & 4; Sri A Jenasenan for M/s Guha Associates, Adv for R-5j CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) R/W SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 10-09-2009 PASSED ON IA No 260 IN SPL CC NO 208 OF 2004, ON THE FILE OF XXXVI ADDL SESSIONS JUDGE (SPECIAL JUDGE), BANGALORE. THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: 3 ORDER The Special Public Prosecutor appointed for conduct of Special C.C.208/04 on the file of 36 th Addl.City Civil and Sessions Judge, Bangalore, as also the ‘State’ have assailed the order dated 10.9.2009 passed on I.A.260 rejecting permission for withdrawal from prosecution the 1 st respondent-Selvi Jayalalitha and the 5 th respondent Thiru T.T.V.Dinakaran, under Section 321, Cr.P.C. 2. The petition is posted for admission after notice to the respondents and as each of them are represented by learned counsel, it is admitted and taken up for final disposal by this order. 3. Sri B.V.Acharya, Special Public Prosecutor, for himself and on behalf of the State has advanced arguments, while Sri A.Navaneetha Krishnan appears for the ls respondent-Smt.Jayalalitha, and Sri A.Jenasenan appears for the 5 th respondent-Thiru T.T.V.Dinakaran. 4 4. Contextual facts are: a) Investigation relating to allegation of amassment of wealth disproportionate to known sources of income by the 1 st respondent was initiated. After thorough investigation, final report was filed in the jurisdictional court accusing 1 St respondent, then Chief Minister of Tamil Nadu, a public servant, of having committed offences punishable under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act, for brevity). On the basis of final report under Section 173, Cr.P.C., a case was registered in Spl.C.C.7/97 on the file of designated court at Chennai. b) Cognizance was taken; 1 st respondent-accused was summoned along with respondents 2, 3 and 4 to answer the charges. Charges were framed for the offences indicated above in the said case. To sustain the charge, the investigating officer had relied on the statement of 259 witnesses and a plethora of documents numbering 2,000. Respondents were put to trial during which the witnesses S cited in the charge sheet were examined and documents were received in evidence. Prosecution closed its evidence on 21.1.2003 and the case was listed for examination of the accused as envisaged under Section 313, Cr.P.C. c) At the stage when the accused had to be questioned under Section 313, Cr.P.C., another report was received by the investigating officer revealing 1 St respondent-accused had in connivance with respondent no.5 and some more persons, acquired immovable properties abroad. That report was taken up for investigation. The investigating officer embarked on the investigation, registering it separately and having found that the allegations, prima fade make out a case of illegal amassment of wealth as also contravention of the provisions of Foreign Exchange Regulations Act, prepared a fresh report indicting the 1 St respondent and her accomplice-the 5 th respondent as having transferred money illegally from India to London , a country abroad, and also of acquiring immovable properties and investments in hotel business. He thus filed a fresh charge 6 sheet against the respondent and 5 th respondent for the offences under Section 13(2) of the Act. d) Since it was a fresh charge sheet, it was received and registered in SpLCC.2/O1. The learned judge of the designated court took cognizance and issued process against the l and 5 th accused. As a sequel to such action, they ( 1 st and 5 th respondents-accused) were summoned. e) At this stage, a petition was filed before the Hon’ble Supreme Court questioning the legality of the proceedings in the earlier case, Spl.C.C.7/97. The apex court accepting the petiton filed before it, transferred Spl.C.C.7/97 as also the fresh case in Spl.C.C.2/O1 from the jurisdictional designated court at Chennai to be tried by a special court to be constituted in the State of Karnataka. In pursuance to the order of the Hon’ble Supreme Court, a special court is constituted in the State of Karnataka designating it as 36 th Additional City Civil and Sessions Judge and Special Court for trial of the said case. 7 f) The states of Tamil Nadu and Karnataka though took steps to comply with the direction of the apex court, but it is seen there was sufficient loss of time. Ultimately, Spl. C.C. Nos.7/97 and 2/01 were re-registered by the transferee court in Bangalore, Karnataka, as SpI. C.C. No.208/04 and 209/04 respectively. g) It is further noticed in about the year 2002, respondents 1 and 5 who were accused in SpI. C.C.7/97 and 2/01 filed an application seeking to club the cases on the plea the offences alleged were similar in both the cases and joint trial was essential. The application was not considered by the designated court at Chennai and it was pending consideration when both the cases were transferred to Karnataka and re-registered in the year 2004. h) It is not in dispute that the transferee court at Bangalore has issued fresh process to secure the presence of the respondents and on their appearance, learned special judge of the designated court found pendency of 8 the application filed by them for clubbing the cases referred to above. He allowed the application and clubbed the cases. At this stage, the said respondents-accused filed an application for discharge in subsequently registered SpI. C.C.2/O1 which was re-numbered by the transferee court as Spi. C.C.209/04. It is made clear that the plea of discharge was sought only in the fresh case since charges had not yet been framed in it. That application had to be considered. I) At this juncture, parties who had petitioned to the Hon’ble Supreme Court for transfer of the case from Chennai to Karnataka, again approached the apex court in S.L.P.3828/05 questioning the order passed by the transferee designated court at Bangalore, clubbing the cases for trial. That petition was admitted and the apex court stayed further proceedings in both the cases referred to above, by its order dated 5.8.2005. Consequently, further proceedings in Spi. C.C.208/04 (arising out of SpI. C.C.7/97) and Spl. C.C.209/04 (arising out of Spl. C.C.2/O1) were stayed. 9 j) Sri B.V.Acharya, learned Special Prosecutor appointed by the State, on assuming charge noticed that already a period of four years had elapsed in the trial. On examining the nature of accusations in the charge sheet filed against the accused in Spl.C.C.208/04 and the charge sheet filed in the subsequently registered case, i.e. Spl.C.C.209/04, prosecution agency had filed an application through the investigating officer for further investigation as is permissible under sub-section (8) of Section 173, Cr.P.C. k) The new incumbent investigating officer having obtained the order of the court for further investigation, has investigated the case and found that the material collected earlier to filing of charge sheet in Spl.C.C.2/O1 (re-numbered as Spl.C.C.209/04) was based on the testimony of several witnesses out of whom some were not available to be produced for evidence during trial, and the others had shown open adverse animus, declining to support their earlier statements. In the circumstances, the 10 learned State Prosecutor has examined the earlier material compiled in the charge sheet in Spl.C.C.7/97 (re-numbered as Cpl.C.C.208/04) and the supplementary report filed by the Prosecutor. On such examination, he found that the material now compiled in the form of charge sheet consists mostly of ocular testimony and some documents collected which supported the charge. Therefore, in his wisdom, he thought of approaching the trial court to permit the State to withdraw prosecution of the accused-Smt.Jayalalitha and the 5 th respondent ( 5 th accused). Thus, he filed an application under Section 321, Cr.P.C. seeking permission of the designated court (Special Judge) to withdraw prosecution launched against respondents 1 and 5 in SpI. C.C.2/01 (re-numbered as Spi. C.C.209/04) and that application could not be pursued in view of the stay order granted by the apex court in SLP.3828/04 vide order dated 5 .8.2005. I) In these circumstances, the learned SPP and the ‘State’ approached the apex court seeking permission to move the designated court to consider the said application. 1 1 The Hon’ble apex court by order dated 24.4.2009, accepted the request by its order which reads thus: ‘Heard the learned counsel for the parties. it is submitted by the learned counsel for the State that the SPP would like to move an application to withdraw Spi. C.C.2/01 (re-numbered as Spl .209/04) before the Additional Sessions Judge, Bangalore. We make it clear that the interim stay granted by this court on 5.8.2005 will not stand in the way of the additional sessions judge while considering the above application. Crl.M.P. stands disposed of.’ Armed with the order, the SPP has approached the designated court with the application under Section 321, Cr.P.C. The application was contested but the accused namely, Jayalalitha ( 1 st accused) and T.T.V.Dinakaran ( 5 th accused) did not oppose it. Despite such fact situation, the learned trial judge by order dated 10.9.2009 impugned in this revision rejected it. m) Assailing it, this revision is filed. 12 5. During hearing of this petition, Sri A.Navaneetha Krishnan, learned counsel for the 1 st respondent has raised the following objections regarding maintainability of this petition: i) The petition is not maintainable as the ‘State’ is the 2 id petitioner. The application seeking withdrawal from prosecution can only be moved by the Special Public Prosecutor and any order passed thereon could be challenged by him and not the ‘State.’ ii) The scope of revision under Section 397, Cr.P.C. is very limited and unless it is pointed out that the impugned order suffers from legal infirmity, this court has no jurisdiction to examine facts. iii) The doctrine of ‘malice’ should be taken note of in considering this petition as it is not the SPP who is in legal pursuit. It is virtually by the ‘State’ which has no competence to question the order passed on the application under Section 321, Cr.P.C. iv) Proceedings before the trial court would show it is not the SPP who is venting his grievance. It is the ‘State’ and hence, the petition is liable to be rejected. 13 v) When the ‘State’ knew it has a weak case, it should not have put respondents 1 and 5 to unnecessary ordeal of court proceedings till now. Therefore, seeking withdrawal cannot be granted as it has generated sufficient cause of actin to them to proceed against the State for malicious prosecution. 6. Learned Spl.Public Prosecutor, Sri B.V.Acharya has countered all the contentions urged. 7. In supplementation to the respective contentions of the parties, I have examined the records. 8. Regarding the first contention that the power of revision under Section 397, Cr.P.C. is limited, there could be no two opinions. Certainly the power of revision conferred on the sessions court is not unfettered. But when the question is about failure of the trial court to exercise jurisdiction, revision under Section 397 is admissible. This court certainly has the power under Section 401, Cr.P.C. if not under Section 397, Cr.P.C., to exercise the power of revision. 14 9. The second contention that the petition is not maintainable because the ‘State’ is the petitioner, I am satisfied, has to be discounted for the simple reason, the 1 St petitioner is the Spl.Public Prosecutor who is authorized to seek withdrawal of prosecution under Section 321, Cr.P.C. Merely because the ‘State’ is also arrayed as the 2 nd petitioner, will not render the petition incompetent. 10. With this prelude to the preliminary objections, we shall now consider whether the application filed under Section 321, Cr.P.C. by the Spl. Public Prosecutor is supported with sufficient material to permit withdrawal of prosecution in SpI. C.C.2/01 (re-numbered as Spl.209/04), and also as to whether the impugned order is a result of erroneous exercise of jurisdiction or non-exercise of jurisdiction, calling for interference. 11. The factual matrix indicates much earlier to 1997, there were serious allegations against the 1 St respondent Jayalalitha, the then Chief Minister of Tamil Nadu having indulged in amassing wealth disproportionate to known 15 sources of income. The ‘State’ had initiated investigation through competent police officers who ultimately filed charge sheet against her for offences punishable under Sections 13(2) read with Section 13(1)(e) of the Act. It was registered in Spi. C.C.7/97 and she along with other accused were put to trial. 12. It is also not in dispute that during trial, recording of evidence of 259 witnesses was complete and about 2,000 documents are received in evidence. The trial had virtually reached the last lap of trial and the accused had to be questioned under Section 313, Cr.P.C. It is during this period further information was received by the investigating officer concerned regarding acquisition of several movable and immovable assets by the 1 St respondent-Jayalalitha in London, a country abroad, using ill-gotten wealth and she was also accused of having indulged in contravention of the provisions of the Foreign Exchange Regulations and other economic offences. That information translated into a report and further investigation was taken up by the investigating agency. It 16 is not known why the investigating officer in his wisdom filed a separate fresh charge sheet which is registered in Spi. C.C.2/01 (re-numbered as Spl.209/04) instead of filing supplementary report. 13. In the second case i.e., SpI.C.C. 209/04, before charges could be framed, accused had sought discharge. Therefore, the application undoubtedly had to be considered by the designated judge under the provision of Section 239, Cr.P.C. It must be observed that the request made by respondents 1 and 5 is to discharge them on the plea there is no sufficient material to make out prima fade case to frame charges against them for the offences indicated above. In other words, accused themselves had sought for discharge, thereby seeking dropping of the prosecution initiated against them in the second case i.e., Spl.C.C.2/01 (Spl. C.C 209/04). The learned SPP has examined this situation with reference to what transpired in Spl. C.C.7/97. 17 14. The learned SPP has mentioned in his application filed under Section 321, Cr.PC. that after filing fresh charge sheet in Spl. C.C. 2/01 (Spl.C.C.209/04), the investigating officer had filed an application seeking permission to conduct further investigation which application was allowed by the designated court on 22.7.2001. In pursuance to the permission so granted, one Sri S.Subramanian, IRS, working as Deputy Director in the Enforcement Directorate, had embarked on the investigation to unearth illegal transfer of money abroad by respondents 1 and 5 (second report). He has carried out thorough investigation and it appears on the basis of his investigation, he found material available is not enough to put the accused to trial. Initially what was spoken to by witnesses became part of the charge sheet in Spl. C.C.2/01, but during further investigation undertaken by the investigating officer, three of the main witnesses rescued from their earlier statements and did not support the prosecution. 18 15. From the report submitted by Sri Subramanian, IRS, it is noticed he has recorded in unequivocal terms that the witnesses on whose testimony prosecution was initiated had retracted from their statement and no worthy purpose would be served by subjecting them to evidence during trial. The learned SPP has referred to the report of Sri S.Subramanian, IRS, in which narration of facts reveals he had investigated the allegations against the 1 st respondent Jayalalitha ( 1 st accused in the said case) and 5 th respondent-T.T.V.Dinakaran ( 5 th accused in the case) of having acquired immovable assets in London illegally transferring money from India to abroad. The offence is alleged to have been committed during the period 1.7.1991 to 30.4.1996. The first check period pertains to acquisition of assets in India while the second check period pertaining to the period from 30.4.1996 refers to acquisition of properties abroad. 16. It is pertinent to note regarding acquisition of illegal assets from 1.7.1991, already charge sheet in SpI. C.C.7/97 is filed and the accused have already faced trial. 19 It is only acquisition of assets during the second check period from 30.4.1996, charge sheet in Spi. C.C.2/O1 was filed. It must also be noticed that Sri S.Subramanian, IRS, is not the investigating officer who had filed the final report to register Spl. C.C.2/01. He is the new incumbent, i.e. successor-in-office. Having assumed charge he sought permission of the designated court to carry on further investigation (under section 173(8) Cr.P.C) and in terms of the order dated 22.7.2001, further investigation has been carried out. He, therefore, opined that filing of charge sheet was on insufficient material and there was no chance of success to the prosecution in establishing the charges against the accused. 17. Referring to this fact situation, the learned SPP enumerated the following grounds in the application under Section 321, Cr.P.C. to withdraw prosecution initiated against respondents 1 and 5 in Spi. C.C.2/01 (re-numbered as SpI. C.C.209/04): “* When the trial in the first case was in progress at Chennai, there was a change in Government in Tamil Nadu during May 2001. 20 After the new government assumed office on 06-06-2001, a new investigation Officer by name Mr.Subburam Additional Superintendent of Police took over further investigation in the second case on 22-07- 2001. The new Investigation Officer, obtained permission from the Special Judge, Chennal under Section 173(8) Cr.P.C to conduct further investigation in the second case and such further investigation was conducted. During such further investigation, the statement of Mr.Subramanaian (Dy.Director I.R.S) was recorded and as already stated his statement rules out involvement of Al in the second case. In the second case she is the only public servant involved and without her it is not possible to pursue the charge against the other accused who is not a public servant. * The investigation Officer has also examined some other witnesses, whose statements have further weakened the case of the prosecution. Thus in effect the further investigation conducted under section 173(8) of the Cr.PC has weakened the case of prosecution to such an extent that it may not be worthwhile to pursue the second case. * In the second case there are as many as 9 witnesses who are residing abroad. The following is the list of these 9 witnesses, who are from United Kingdom, Malaysia, Singapore and Australia. 1. Naynesh Desai, Sohcitor, No.97, Park street, London, United Kingdom; 21 2. Paresh Kotecha, 11-15, baker street, Wey Bridge, Surry, United Kingdom; 3. Malcharak Mario Jan, 71, Longclaft, Meadow, ASTLEY Village, Lanchashire, United Kingdom; 4. Rajoo S. Sb Sandiran, No.10, Jalan Taman, Ria Dkua Quyeritam, Post Code No.11500, Penang, Malaysia; 5. Ramachandran K. Sb Kakruppiah, No.37, Jalan taliti, Singapore — 537 334; 6. David Booker, Financial Investigator, Mutual Legal Assistant Unit, Serious Fraud office, 10-16, Elm Street, London, United Kingdom; 7. Clyde Marklew, Financial Investigator, Mutual Legal assistant Unit, Fraud Office, 10-16, Elm Street, London, United Kingdom; 8. Anantha Krishnan Dr.9, Marita Road, Medlands, State of Western Australia, Australia, 9. Brown J.A., Federal Agent- operation, Australian Federal Police, P.O.Box NO.920, Spring hall, Brisbane 4004, Australia. It may not be possible to secure the presence of these witnesses and examine them. * Even though there is evidence regarding acquisition of property in London and its subsequent disposal, it will be difficult to prove connection between the sources illegally acquired in India by a public Servant and the payment of consideration for the sale abroad, as according to the prosecution case, the money available in India has been utilized for purchase of property abroad by adopting Hawala means. It is thus difficult to prove this aspect of the case. The evidence regarding Sri T.T.V Dinakaran, acquiring properties abroad, cannot be of much assistance unless it is shown that the source to acquire the property belonged to Al Selvi Jayalalitha, who alone is a public servant in the case.” 18. Sri B.V.Acharya, learned Special Prosecutor would contend, he had, by virtue of the power conferred by Section 321, Cr.P.C., honestly and dispassionately examined the material on the basis of which prosecution wanted to put respondents 1 and 5 to trial, and in his opinion the material fell short of legal proof that is required to hold them guilty of the charges and thus sought withdrawal of the prosecution to save public time and money. He would contend none of the grounds urged in the application are considered by the trial court. The learned judge has misapplied the doctrine ‘justice must not only be done but seem to be done’ to reject the application. He asserted that the opinion is formed by him on an independent assessment of the entire material 23 without any suggestive act of the ‘State’. He, therefore, seeks to set aside the impugned order. 19. In negation of all contentions of Sri B.V.Acharya, learned SPP, it is urged for and on behalf of the 1 St respondent-Jayalalitha that the filing of the application may, at the first look, appear to be an honest attempt on the part of the Spl. Public Prosecutor, but actually it is at the instance of the ‘State.’ Learned counsel for respondents 1 and 5 would submit filing of charge sheet during the pendency of the earlier trial itself is indicative of the fact that the ‘State’ has been indulging in malice against a person of high esteem, and a constitutional functionary. He would submit that the accusation in the first charge sheet registered in Spl. C.C.7/97 (re-numbered as Spi. C.C.208/04) and the accusation in the second charge sheet are virtually the same. The material on the basis of which such accusation is sought to be proved is also similar. He submits respondents 1 and 5 are entitled to seek quashing of the charge sheet which fact the ‘State’ has realised. Therefore, granting them permission to 24 withdraw from the prosecution would not be legally permissible. It would amount to colourable and mala fide exercise by the ‘State’ which is being shielded through the application filed under Section 321, Cr.P.C. However, learned counsel was highly appreciative of the wisdom of the learned Spl.Public Prosecutor, Sri B.V.Acharya, in seeking withdrawal from prosecution. 20. As regards 5 th respondent is concerned, he would submit he has been unnecessarily dragged into litigation as an accomplice of the 1 st respondent. The accusation itself is untenable. The material collected is virtually no material to arraign him as accused. He is not a public servant to be put to trial along with the 1 st accused. 21. Learned counsel for respondents 1 and 5 has gained citational support to his contentions relying on the decisions in the case of YERNENI RAJA RAMACHANDRA .v. STATE OF ANDHRA PRADESH (2009 AIR SCW 6526) and also in the case of SHEONANDAN PASWAN .v. STATE OF BIHAR ([1987] 1 SCC 288). In the former 25 decision, the apex