Case: State of Tamil Nadu Vs. J. Jayalalitha

The former Chief Minister of Tamil Nadu Ms. J. Jayalalitha was arraigned before the Court of a Special Judge, Chennai, along with 10 others, depicting her as the hub of a cabal for knocking off a huge sum of public money to make vast pecuniary gains at the cost of the State exchequer. The Special Judge at the stage of framing the charge felt that the materials shown to him were insufficient to frame a charge against her and also against one of her former cabinet colleagues (V. R. Nedunchezhian). So they were discharged by the Special Judge, but a charge has been framed against the other nine accused for criminal conspiracy to misappropriate government funds and other related offences. The State of Tamil Nadu challenged the aforesaid order of discharge before the High Court of Madras in revision, but a learned Single Judge did not interfere with the order. In the meanwhile V. R. Nedunchezhian has passed away. This appeal is by the State as against Ms. Jayalalitha (respondent herein) in challenge of the said order of the High CourtThe substance of the police case is that during the period between February 1992 and October 1993, all the above 11 accused and certain foreign coal suppliers had entered into a criminal conspiracy to import coal for Tamil Nadu Electricity Board (hereinafter referred to as "the Electricity Board") for such price as to obtain huge pecuniary advantage to themselves by causing heavy and wrongful loss to the State to the tune of about 6.5 crores of rupeesThere are three thermal power stations in Tamil Nadu (at Ennore, Mettur and Tuticorin) which generate electric power by using coal as fuel. The annual requirement of coal for those three stations was about 12 million metric tons of coal. As the stock position of coal in March 1992 appeared insufficient to meet the requirement a decision was taken to import at least 2 million metric tons of coal from foreign countries. The allegation is that such a decision was taken pursuant to a criminal conspiracy hatched by the accused persons for obtaining huge pecuniary advantage. Pursuant to the decision, tenders were invited from foreign suppliers of coal. On 10-3-1993, the tenders were opened, but only 11 of them were found to be in order. However, those bidders were asked to revise the price bid after adding three more parameters, such as size, ash content and volatile matter. The idea was to facilitate import of inferior quality of coal at higher price by showing favouritism to certain coal suppliers of Indonesia, according to the allegationThe Government Secretary (PWD) raised strong objections against the said tenders being accepted. A company based at Singapore (M/s Counter Corporation) made an offer to supply 6 lakh metric tons of coal at the rate of 35.24 US Dollars. But it was rejected without even starting negotiation with them. But the Electricity Board fixed the price of coal at 40.20 US Dollars per metric ton and three Indonesian bidders were permitted to supply coal at that price. Subsequently M/s. Counter Corporation (Singapore) was also asked to supply coal at the increased price of 40.20 US Dollars per metric tonThe offences alleged against all the accused are under Section 120-B read with Section 409 IPC as well as Section 13(2) of the Prevention of Corruption Act, 1988What persuaded the Special Judge to adopt the view that the materials produced before him were insufficient to frame a charge against the respondent, are briefly the followingThe strong objection raised by the Government Secretary (Shri V. Sundaram) against the proposal to import coal at such a high price would not have reached the notice of the respondent because it is an admitted position that some crucial sheets in the current file were removed and such sheets were later added after obtaining approval from the Chief Minister. The Special Judge has made the following observations"It is not known as to how and where and at what point of time pp. 223 to 226 and also pp. 21 to 32 were removed from the Secretariat file (No. 55360/U2/93). This part of the file only contains the objections raised by Sundaram, objections in pp. 21 to 32 are based on the objections already raised in pp. 223 to 246. I have carefully gone through the materials placed before me to find out whether there is anything to show that the file was intact with the pages containing the objections of Sundaram when the file reached the table of A-11 and A-1. The pages containing the objections of Sundaram pp. 223 to 246 and pp. 21 to 32 can be called as missing pages for short. The materials on record do not reveal how, when and where the missing pages were removed and secreted."The Special Judge has further observed thus" If the file in the present condition without the missing pages had been submitted to A-1 and A-11, they would not have been in a position to know the removal of pages and suspect foul play. If these missing pages have been removed either by 2nd or 3rd accused before sending the file to 11th accused and 1st accused, then there might not have been any occasion for 11th and 1st accused to note the objections of Sundaram." *Learned Single Judge of the Madras High Court while affirming the said order pointed out that the entire case against the respondent is based on the statement of Shri V. Sundaram and another statement made by Shri Venkataraman, the then Chief Secretary (who is arrayed as the third accused in the charge-sheet, against whom the trial court has framed charge). The latter statement was recorded under Section 164 of the Code of Criminal Procedure (for short "the Code"). Regarding the objections put forward by V. Sundaram in the current file, learned Single Judge noticed that pp. 225 to 245 of that file remained missing at a particular point of time and the objections made by V. Sundaram were on those sheets. When there is nothing to show that those sheets were removed at the behest of respondent Jayalalitha it must be presumed that she had not come across those objections, according to learned Single Judge of the High CourtWhile considering the possibility of those pages being surreptitiously removed at the behest of respondent Jayalalitha learned Single Judge has stated thus"A mere imagination cannot be said to be a presumption. There is no evidence on record to show that the file had gone to the first accused and she ordered the removal of those pages at the time when she signed the said file. When the file was sent from witness Sundaram those pages were found in the file and thereafter, it has gone to number of officials and the Minister for Public Works, who is the second accused in this case and from him, the said file has gone to A-11 and finally to A-1. The fact of the file containing those pages and thereafter missing of those pages when the file once again reached him after the signature of the accused and the fact of inserting those missing pages together in the file by one Easakki Muthu are also spoken to by witness Sundaram. However, there is absolutely no evidence as to what had happened in between." *Thereafter learned Single Judge proceeded to consider the statement attributed to 3rd accused Venkataraman as recorded under Section 164 of the Code and found that the said material is not capable of being converted into legal evidence later on after framing the charges

Reasoning: we have no doubt in our mind that the Court would not, and should not, have discharged the respondent at this premature stage in respect of the offences charged against the other nine accused personsTherefore, we set aside the order passed by the Special Court discharging respondent J. Jayalalitha and that of the High Court which confirmed the said order. We direct the Special Judge to proceed against the respondent as one of the accused in the case. Regarding the witnesses already examined by the prosecution we permit the prosecution to treat the examination-in-chief already done as part of the evidence recorded in this case with all the accused on the array. The prosecution can elicit from those witnesses any further materials and they can be recorded as the remaining portion of the examination-in-chief. Thereafter the respondent shall have full opportunity to cross-examine such witnesses as though the entire chief examination was conducted with her on the array of the accused. This provision is made by us for avoiding unnecessary delay and repetition of re-recording the evidence already recorded. On completion of examination of such witnesses the prosecution can examine any remaining witnesses. Thereafter, the trial can proceed in accordance with