IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA Crl.O.P.No.19152 of 2010 and Crl.R.C.Nos.609, 636 and 667 of 2011 & M.P.No.1 of 2010 in Crl.O.P.No.19152 of 2010 Selvi.J.Jayalalithaa .. Petitioner in Crl.O.P.No.19152 of 2010 & Crl.R.C.No.609/2011 /Accused No.1 K.A.Sengottaiyan .. Petitioner in Crl.R.C.No.636/2011 /Accused No.2 Azhagu Thirunavukkarasu .. Petitioner in Crl.R.C.No.667/2011 /Accused No.3 Vs. 1. Central Bureau of Investigation, represented by its SP/CBI/ACB, Chennai. .. Respondent in Crl.O.P.No.19152 of 2010, Crl.R.C.609 and 636 of 2011 / Complainant 2. The Superintendent of Police, CBI/ACB/Chennai ...Respondent in Crl.R.C.667 of 2011/ Complainant * * * Crl.O.P.No.19152 of 2010: PRAYER: Criminal Original Petition filed under 482 of the Code of Criminal Procedure praying to call for the entire records in C.C.No.26 of 2006 on the file of the learned VIII Additional Sessions Judge / Principal Judge for CBI Cases, Chennai, to quash the same on the ground of inordinate and unexplained delay in completing the investigation. Crl.R.C.609, 636, 667/2011: PRAYERS : Criminal Revision Petitions filed under Sections 397 r/w 401 of the Code of Criminal Procedure praying to call for the records in Crl.M.P.Nos.760, 723 and 887 of 2009 respectively in C.C.No.26 of 2006 on the file of the XIII Additional Special Court for CBI Cases, City Civil Court, Chennai, respectively and set aside the order dated 12.04.2011 made therein and discharge the petitioners/A1, A2 and A3 from the case in C.C.No.26 of 2006 on the file of the XIII Additional Special Court for CBI Cases, City Civil Court, Chennai. For Petitioner in Crl.O.P. : Mr.B.Kumar, Senior Counsel No.19152/2010 and Crl. for M/s.R.Loganathan R.C.No.609/2011 R.Rajarathinam https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in Crl.R.C.:Mr.S.Ashok Kumar, Senior Counsel No.636/2011 for M/s.G.K.Bharathi & P.R.Balasubramanian For Petitioner in Crl.R.C.: Mr.V.Gopinath, Senior Counsel No.667/2011 for M/s.K.Selvarengan For Respondents in all : Mr.N.Chandrasekaran, the petitions Special Public Prosecutor for CBI C O M M O N O R D E R There are three accused in this case. As per the charge sheet, the petitioner in Crl.R.C.No.609 of 2011 and Crl.O.P.No.19152 of 2010 has been arrayed as A1 and the petitioners in Crl.R.C.Nos.636 of 2011 and 667 of 2011 have been arrayed as A2 and A3 respectively. A1 has been implicated for the offence under Section 11 and A2 and A3 have been implicated for the offence under Section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”). 1A. The petitioners preferred discharge petitions under Section 239 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) and as against the dismissal of their discharge petitions, they have preferred the above revisions before this Court. As far as A1 is concerned, apart from preferring discharge petition before the trial court, she has also preferred a petition before this Court under Section 482 of the Code in Crl.O.P.No.19152 of 2010 seeking for the relief of quashing the proceedings mainly on the ground of delay in registering the First Information Report and filing the charge sheet on the basis of the principle laid down by the Hon'ble Apex Court in Abdul Rehman Antulay and others V. R.S.Nayak reported in 1992 (1) SCC 225 to the effect that an objection based on denial of right to speedy trial and for relief on that account should first be addressed to the High Court. 2.0. The factual matrix of the case right from registering the First Information Report culminating into filing of the final report in this case is to be stated hereunder : 2.1. The Deputy Superintendent of Police, Crime Branch C.I.D., registered the FIR in Crime No.15 of 1996 for the offence under Sections 13(2) r/w 13(1)(e) of the Act. The said FIR was registered on 24.06.1996 in respect of the transactions alleged to have taken place between 1990 and 1993 on the basis of the D.O. Letter written by the Director General of Income Tax (Investigation), Chennai. The said letter was incorporated in the above said FIR which reveals that A1 has disclosed in her income tax returns regarding the gifts including DDs and cash given to her on the occasion of her birthday totalling to an amount of Rs.2,09,50,012/- and alleging that the genuineness of the gifts have not been proved and hence, the department has added the said amounts as income in her hands. On receipt of the said letter from https://hcservices.ecourts.gov.in/hcservices/ the income tax department, without making any further specific allegation, the above said FIR was registered for the offences under Sections 13(2) r/w 13(1)(e) of the Act. 2.2. Thereafter, pursuant to the notification of Government of Tamil Nadu dated 03.08.1996, Government of India had issued notification dated 07.08.1996 entrusting the investigation of the case to the Central Bureau of Investigation in respect of the FIR registered in Crime No.15 of 1996 by the C.B. C.I.D., Chennai, under Sections 13(2) r/w 13(1)(e) of the Act. Accordingly, the FIR was registered by the C.B.I. as R.C.No.50(A)/96 on 02.10.1996 for the above said offences under the Act. It is claimed by the CBI that the Vigilance and Anti-Corruption Department, Tamil Nadu, was already investigating a separate case against A1 for the alleged offences under Sections 13(2) r/w 13(1)(e) of the Act in Crime No.13 of 1996, and as such, they have not investigated for the said offences. On the other hand, they have altered the offences under Sections 13(2) r/w 13(1)(d) of the Act and conducted investigation on the basis of the acceptance of Demand Drafts, including a DD of US $ 3 lakhs said to have been sent by one Dr.K.T.B.Menon, by A1 during the year 1992 while she was the Chief Minister. As the said Menon died, it is stated in the charge sheet that there was no sufficient material to establish a case under Section 13(2) r/w 13 (1)(d) of the Act. 2.3. The charge sheet in this case was filed on 31.07.2006. It is stated in the charge sheet that thereafter the investigation was conducted regarding the alleged receipt of other 89 DDs and cash of Rs.15,00,000/-. It is further stated in the charge sheet that out of 89 DDs purchased in the names of 57 persons, 12 persons were found to be fictitious, 12 persons in whose names DDs were purchased denied the purchase of DDs and 33 persons confirmed the purchase of DDs and presenting to A1 as birthday gifts. Out of 33 persons, 21 persons, who had gifted DDs were MLAs, Ministers or party leaders appointed as Chairman of Government Corporations and other Government bodies and they were concerned in official business transaction or to be transacted with A1 in her capacity as the Chief Minister and thereby A1 accepted the DDs or valuable things from 21 persons who had official connections with her without consideration and thereby committed the offence under Section 11 of the Act. 2.4. The allegation as per the charge sheet against A2 and A3 is to the effect that both of them were Ministers in the Cabinet of A1 during the relevant period and A2 provided an amount of Rs.22,53,700/- and A3 provided an amount of Rs.25,50,000/- for the purchase of DDs in favour of A1 and they have presented the same to A1 on her birthday in the year 1992 and thereby abetted her to accept the valuable things, i.e., DDs, without consideration and accordingly, A2 and A3 said to have committed an offence punishable under Section 12 of the Act. 3. Mr.B.Kumar, learned Senior Counsel appearing for A1, put forward two fold contentions, one on merits and another on https://hcservices.ecourts.gov.in/hcservices/ inordinate and unexplained delay in registering the FIR as well as completing the investigation and filing the final report. 4. Regarding the merits, the learned Senior Counsel for A1 contended that the final report is confined in respect of presentation of DDs only by 21 persons out of whom, A2 and A3 are also included and as such, from 19 persons statements were recorded by the investigating officer under Section 161 of the Code and without exception all the 19 persons stated that A1 is the General Secretary of the political party, namely, All India Anna Dravida Munnetra Kazhagam (for short "AIADMK"), in which, they are the members and they have collected money from party sympathizers and workers, who have contributed Rs.5/- or Rs.10/- etc. and after mobilizing the funds they have purchased the DDs and given to A1 as birthday gift and as such, the said trivial amounts collected from party loyalties would attract the provisions under Section 20(3) of the Act and as such, even on the basis of materials available on record presumption cannot be raised under Section 20 (1) of the Act and thereby the ingredients of the offence under Section 11 of the Act are not attracted. It is submitted that A1 during the relevant point of time had dual capacity, viz., as a Chief Minister and as a General Secretary of the party and the persons or numerous persons giving valuable thing as birthday gift out of love and affection to A1 only as a party leader would not attract the ingredients of Section 11 of the Act. 5.1. The learned Senior Counsel would contend that 19 persons, in view of the above said submissions, have not contributed their own funds and they have mobilized the contributions from the party loyalties for presenting the same to their leader and as such they have acted as a conduit between the larger number of party sympathizers and loyalties and their leader viz., the petitioner/A1. It is contended that even assuming that the said 19 persons having business transaction or to be transacted with the Government as it is alleged that they have been selected or appointed to one post or the other in the Government, has no relevance, as they have not paid any money for taking DDs and on the other hand, money for taking the said DDs was mobilised only from the contributions made by the workers, sympathisers and admirers of A1 to present the same to their leader (A1) as birthday gift. It is contended that in respect of other persons excluding 19 persons, as stated above, who have given the DDs are concerned ex- facie Section 11 of the Act, even according to the final report, is not attracted as other persons have not had any dealing with the Government at any time either before or after giving the DD and as such, even as per the final report, Section 11 of the Act is not attracted. The learned Senior Counsel would contend that in respect of a foreign draft for US $ 3 lakhs, the final report itself concludes that no offence is made out under the Act. He would further contend that A1 disclosed the DDs received by her and accounted for in the income tax proceedings and he placed reliance on the statements recorded under Section 161 of the Code from L.W.117/the Deputy Commissioner of Income Tax, Chennai, in which, it is stated that 29 persons filed affidavits stating that the https://hcservices.ecourts.gov.in/hcservices/ amounts were collected from the party workers. Therefore, it is submitted that the income tax authorities have held that the receipt of DDs cannot be considered as a gift, but would be treated as income in the hands of the assesse and as such, the conclusion of the income tax authorities themselves will show that there is no contravention of Section 11 of the Act. 5.2. The second limb of the contention of the learned Senior Counsel for the petitioner (A1) is on the ground of delay. It is contended that the occurrence took place in the year 1992 and the FIR was registered on 24.06.1996 by the C.B. C.I.D., and thereafter, C.B.I. registered the FIR on 02.10.1996 and the final report was filed on 31.07.2006 and as such, 10 years delay in completing the investigation and filing the final report and there is a total delay of 14 years and 5 months from the date of incident and there is absolutely no proper explanation from the prosecution for such an inordinate delay. It is contended that the petitioner cannot be held to be liable for such an inordinate delay in completing the investigation and filing the final report. The inordinate delay of 10 years in completing the investigation would certainly infringe the right to speedy trial and would amount to violation of Article 21 of the Constitution of India. It is pointed out by the learned Senior Counsel that as per the counter, the final report was finalized on 21.12.2001 itself recommending to prosecute A1 under Section 11 of the Act and A2 and A3 under Section 12 of the Act, but the final report was filed only on 31.07.2006 and there is no explanation for the delay of five years in filing the final report after taking the decision. The only explanation as per the counter is that time had been spent in consulting Attorney General whether or not sanction is required to prosecute A1 and if so, who should grant sanction. It is submitted that such explanation is wholly unacceptable for the simple reason that A1 was the Chief Minister only upto May 1996 and thereafter, she was only an M.L.A. and even at the time of filing the final report and as such, there is no need for sanction. In support of such contention, learned Senior Counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court in P.V.Narasimha Rao V. State (CBI/SPE) reported in 1998 (4) SCC 626. As per the said decision, in a case of M.L.A., the Speaker of the Legislative Assembly is competent to give sanction and in this case, the sanction was ultimately obtained from the Speaker of the Tamil Nadu Legislative Assembly. Therefore, it is submitted that the inordinate delay in completing the investigation is not at all properly explained by the prosecution and as such, the petitioner/A1's constitutional right recognised under Article 21 of the Constitution stands violated and thereby the proceedings pending against the petitioner is liable to be quashed and consequently, the impugned order passed by the learned trial Judge dismissing the discharge petition is liable to be set aside. 5.3. Mr.B.Kumar, learned Senior Counsel for the petitioner, in respect of the above contentions would place reliance on the following decisions of the : https://hcservices.ecourts.gov.in/hcservices/ (1)A.R.Antulay & Others V. R.S.Nayak & another reported in AIR 1992 (1) SCC 225 ; (2)R.Ramachandrao Rao V. State of Karnataka reported in 2002 (4) SCC 578 ; (3)Madheswari Singh & another Vs. State of Bihar reported in AIR 1986 Pata 324 ; (4)Biswanathprasad Singh Vs. State of Bihar reported in 1994 (Supp) (3) SCC 97 ; (5)Ramanand Chaudary V. State of Bihar reported in 2002 (1) SCC 149 ; (6)Pankaj Kumar V. State of Maharashtra and others reported in AIR 2008 SC 3077 ; (7)Vakil Prasad Singh Vs. State of Bihar reported in AIR 2009 SC 1822 ; and (8)K.Krishnasingh Vs. State reported in 2007 (1) MWN (Cr.) 60 ; 6. Mr.S.Ashok Kumar, learned Senior Counsel for the petitioner/A2 in Crl.R.C.No.636 of 2011 submitted that he is adopting the arguments of Mr.B.Kumar, learned Senior Counsel for A1 in respect of delay in completing the investigation and filing the final report and thereby infringing the fundamental right of the accused to speedy trial guaranteed under Article 21 of the Constitution of India. It is further submitted that as per the charge sheet, the prosecution has come forward with two versions, one version is on the basis of the statements given by the income tax officers particularly L.W.117 to the effect that DDs presented to A1 cannot be considered as gifts, but would be treated as income in the hands of the assessee and another version is on the basis of the statements recorded under Section 161 of the Code to the effect that DDs were presented to A1 by the persons who are having business transaction or to be transacted with the Government and thereby A1 committed the offence under Section 11 of the Act and A2 and A3 under Section 12 of the Act. Therefore, it is contended that the prosecution itself has not come forward with a clear and consistent version even as per the final report filed in this case. It is further contended that there is absolutely no material available on record to show that A2 had directly presented the DDs to A1. It is contended that even assuming that A2 had given the DD in person to A1, A2 had already assumed office as a Minster and as such, he is not going to gain anything and therefore, it cannot be stated that A2 abetted A1 to accept the valuable things i.e., DDs without consideration in order to attract the ingredients of the provisions of Section 12 of the Act. The learned Senior Counsel would submit that all these important factors have been overlooked by the learned trial Judge while passing the impugned order of rejecting the discharge petition and as such, the impugned order is liable to be set aside. 7. Mr.V.Gopinath, learned Senior Counsel for A3 also adopted the arguments advanced by the learned Senior Counsel for A1 in respect of delay in completing the investigation and thereby infringing the fundamental right of speedy trial enshrined under Article 21 of the Constitution. It is further contended that four https://hcservices.ecourts.gov.in/hcservices/ witnesses have been examined during the course of investigation, viz., L.Ws.24, 38, 39 and 42 implicating A3. It is the prosecution version that the amount was given to them by L.W.44, who is the brother of A3 and there is no allegation of A3 giving money to them for taking DDs. L.W.44, on the other hand, in his statement recorded under Section 161 Cr.P.C. that he had no political dealing with his brother A3 and he had never carried any DD from anyone either to A3 or to anyone at any point of time. Therefore, there is absolutely no material available on record as to how the DDs have been taken on behalf of A3 and A3 was the Minister at the time of the alleged transaction. It is pointed out that the DD was taken in the personal name of A1 and not as the Chief Minister and as such, the DDs were not given to A1 as the Chief Minister and only as the leader of the party for giving her as birthday gift and as such, the ingredients of the offence under Section 12 of the Act are not attracted against A3. 8. Per contra, Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI, would contend that a prima facie case is made out to implicate the petitioners, namely, A1 for the offence under Section 11 and A2 and A3 for the offence under Section 12 of the Act. It is contended that there are enough materials available on record through the statements recorded from the witnesses under Section 161 of the Code to attract the ingredients of the offence under Sections 11 and 12 of the Act and the probative value of such statements recorded under Section 161 of the Code cannot be gone into at the stage of discharge petition or quashing the proceedings. It is contended that detailed counters are also filed in this matter highlighting the materials available on record implicating each one of the petitioners. He would also place reliance on the provision under Section 20 of the Act and contended that in view of the materials available on record attracting the provisions under Sections 11 and 12 of the Act, the presumption contemplated under Section 20 of the Act is necessarily to be drawn against the petitioners/A1 to A3. The learned Special Public Prosecutor for CBI would submit that though there is a delay on the part of the respondent in conducting investigation, no malafide intention could be attributed on the part of the investigating agency and such delay is caused only due to administrative and procedural reasons. It is contended that merely because there is a delay, there is no prerogative right conferred on the petitioners to seek the relief of quashing and discharge. 9. The learned Special Public Prosecutor placed reliance on a decision of this Court in V.Thiagarajan V. State reported in 2008 (2) MLJ (Cri.) 731 and contended that in the said decision this Court considered the principles laid down by the Hon'ble Apex Court in a catena of decisions regarding the exercise of power under Section 482 of the Code as well as the scope and power of this Court regarding the discharge of an accused. 10. This Court has given its careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinised the entire materials available on record and perused https://hcservices.ecourts.gov.in/hcservices/ the petitions filed by the petitioners and the counters filed by the respondent and also perused the impugned orders passed by the learned trial Judge. 11. As already pointed out by this Court, A1 to A3 have invoked the provision under Section 239 of the Code by filing discharge petitions and A1 during the pendency of such discharge petition also preferred a petition before this Court invoking the provision under Section 482 of the Code for quashing the proceedings. Therefore, it is relevant to refer the above said two provisions of the Code in order to highlight the scope and ambit of the powers conferred under the said provisions. 12. Section 239 of the Code reads as hereunder : "239. When accused shall be discharged – If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." Section 428 of the Code reads as hereunder : "482. Saving of inherent powers of High Court – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 13. A reading of the above said provision makes it crystal clear that the obligation to discharge the accused under Section 239 of the Code arises when the learned trial Magistrate considers the charge against the accused to be groundless on the basis of the examination of the materials produced along with the final report under Section 173 of the Code. 14. It is worthwhile to refer the principles laid down by the Hon'ble Apex Court in a landmark case in R.S.Nayak V. A.R.Antulay (AIR 1986 SC 2045) has held as follows : "The Cr.P.C. contemplates discharge of the accused by the Court of Session under S.227 in a case triable by it ; cases instituted upon a police report are covered by S.239 and cases instituted otherwise than on police report are dealt with in S.245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under S.227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused'. Obligation to discharge the accused under S.239 arises when "the Magistrate considers the charge against the https://hcservices.ecourts.gov.in/hcservices/ accused to be groundless." The power to discharge is exercisable under S.245 (1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction ....." It is a fact that Ss.227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of