J. Jayalalitha vs State

N. Dhinakar, J.—A1, A5, A2, A3 and A4 in Spl. C.C. No. 2 of 1997 are the Appellants in the above appeals and in this judgment, they will be referred to as A1 to A5 in the order they were arrayed before the learned Special Judge No. II/XII Additional Judge, Chennai, for the sake of convenience.

A1 to A5 were charged under Charge No. 1 framed under Sections 120B r/w 477A IPC and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (hereinafter, for short, "the P.C. Act"), on an allegation that between 29.07.1991 and 06.12.1994, at Chennai, Kodaikanal and Palayamkottai, they were parties to a criminal conspiracy having agreed to commit and abet one another in the commission of the offence of falsification of records and the offence of criminal misconduct by public servants in connection with the grant of approval of the revised plan of M/s. Pleasant Stay (Kodai) Hotel Private Limited (hereinafter, for short, "the hotel"), against the rules and norms governing the construction of the building in the Hill Station of Kodaikanal. The second charge was framed against A1 and A2 u/s 477A IPC on the allegation that A1 being the Chief Minister and A2 being the Minister for Local Administration, during May 1994, wilfully and with intent to defraud, falsified File No. 33871/MAII/93 which was received by A2 on 07.05.1994 from P.C. Cyriac, who was the then Secretary of Municipal Administration and Water Supply (M.A. and W.S.) Department, along with an additional note dated 06.05.1994 containing objections for the issuance of a Government Order by clandestinely removing and destroying or secreting the said additional note of P.C. Cyriac. Charge No. 3 was framed against A1 to A3 under Sections 13(1)(d) r/w 13(2) of the P.C. Act and the allegation against them in the said charge is that in pursuance of the criminal conspiracy, they, by corrupt or illegal means and by abusing official position as public servants, obtained for the hotel pecuniary advantage without any public interest, by issuing G.O. Ms. No. 126 M.A. and W.S. Department, dated 13.05.1994 and G.O. Ms. No. 317 of the same Department, dated 06.12.1994, granting exemptions and relaxations from various rules and norms Charge No. 4 was framed under Sections 13(1)(d) r/w 13(2) of the P.C. Act r/w 109 IPC against A4 and A5, on the allegation that they abetted A1 to A3 in committing the offence of criminal misconduct.

The learned Trial Judge convicted all the accused under Charge No. 1 and sentenced each one of them to suffer imprisonment for one year and also to pay a fine of Rs. 1000/-, with a further direction that in default of payment of fine, each one of them will undergo simple imprisonment for one month. Under charge No. 2, A1 was acquitted; but, A2 on being convicted, was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/- with a default sentence of one month's simple imprisonment. A1 to A3 were convicted under Charge

No. 3 and each of them was sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/- with a default sentence of simple imprisonment for one month. Under Charge No. 4, A4 and A5 were convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default of payment of fine, each will undergo simple imprisonment for one month. The learned Trial Judge further directed that the sentences imposed upon the accused will run concurrently.

When the appeals were taken up for hearing, Mr. S. Balathandapani, the counsel appearing for A5, who filed C.A. No. 184 of 2000, brought to the notice of the Court that A5 died on 09.04.2000 and therefore, the appeal has abated. The said statement of the counsel was endorsed by the learned Special Public Prosecutor, Mr. K.V. Venkatapathi and he produced a certificate issued by Tirunelveli Municipal Corporation which shows that A5 died on 09.04.2000 and it was registered on 12.04.2000. The said certificate will form part of the records. Therefore, the appeal filed by A5 abates. The Court has to now consider the appeals filed by A1 to A4.

Shorn of unnecessary details, the facts necessary to dispose of the appeal, can be briefly summarised as follows: The Government of Tamil Nadu passed G.O. Ms. No. 571, Housing and Urban Development Department, according consent u/s 24(2) of the Town and Country Planning Act, 1971, in respect of Master Plan for Kodaikanal Local Planning area and it was published in the Gazette on 31.08.1988. A4 is the Executive Director and A5 is the Managing Director of the hotel. With a view to put up a construction consisting of ground and first floors in S. No. 349 part, Bisvilla Street, Kodaikanal, A4 presented an application, Ex.P-2, to the Township with the plans seeking necessary licence. The plan was returned by the Township with a request to rectify certain defects. After the defects were rectified, planning permission was granted by the Township. On 29.1.1992, A4 presented a revised plan to the Township for constructing five floors additionally. The revised plan is Ex.P-5. In the said revised plan, 5 floors were shown as basement floors below the ground level. The said revised plan was rejected by the Township after receiving an inspection report from P.W.4 that the building shown in the revised plan is more than two floors and that the plan is against Rule 8.6.1 of the Master Plan. On 11.02.1992, A4 preferred an appeal to the Government against the order of rejection, through the Township. Ex.P-6 is the appeal petition. P.W. 4 submitted his report, Ex.P-9 to P.W.2. On 22.04.1992, a notice under Ex.P-7 was issued to A5 to demolish the unauthorised construction. On 24.06.1992, A4 wrote a letter, Ex.P-39, to the Township, requesting them to forward the appeal, Ex.P-6. to the Government. On 21.07.1992, P.W.8 inspected the site and found that four floors have already been constructed and the fifth floor is under construction. Therefore, he put up a note, Ex.P-28 on the same day and another note, Ex.P-29, on 22.07.1992. On 28.07.1992, the Township issued a notice under Ex.P-21 directing the hotel to demolish the unauthorised construction. In the meantime, Palani Hills Conservation Council, Kodaikanal, (hereinafter, for short, "the Palani Council"), filed a writ petition in W.P. No. 13231/1992 before the High Court with a prayer to issue a direction to demolish the building above two floors. The High Court passed an interim order directing that status quo be maintained. P.W.

30, the Chief Secretary, is the Ex-Officio Chairman of Architectural and Aesthetic Aspects Committee (hereinafter, for short, "the AAA Committee"). P.W. 11 is the convenor of the AAA Committee. P.W. 7, the District Collector, is the Ex-Officio Member of the AAA Committee.

The order of the High Court directing that status quo be maintained, was received and a file was opened. The AAA Committee passed a resolution rejecting the recommendation of the appeal of A4, which is found noted in Ex.P-26, the minutes of the meeting of the AAA Committee.

Ex.P-43 was sent to the Government. Ex.P-47 is the letter sent by P.W. 11, Director, Town and Country Planning, to the Secretary, M.A. and W.S. Department, regarding the resolution of the AAA Committee recommending the rejection of the appeal of A4. Ex.P-26 was signed by P.

Ws. 7, 11 and 30.

Meanwhile, the hotel made a request to the Indian Bank for sanction of additional loan of Rs. 75 lakhs. Ex.P-110 is the letter dated 02.07.1993, written by A5 to the Bank informing the Bank that he had appealed to the Government and the Government is considering his appeal favourably. He has claimed in the said letter that the Government has promised to accord sanction to the plan submitted in appeal and he has strong reasons to believe that the Government will sanction the entire plan. He sought three months'' time to produce the sanctioned plan. He also wrote another letter, Ex.P-111, on the next day, stating that the Township is completely with them and the Township does not approve the move of the Palani Council, which has filed a writ petition before the High Court. He wrote another letter on 04.07.1993, which is Ex.P-112, informing the Bank that the sanction of the Government is expected within a short time. After obtaining an affidavit dated 17.07.1993, Ex.P-113, from A4, the Bank released die additional loan of Rs. 75 lakhs.

On 13.08.1993, the appeal filed by the hotel and forwarded by the Township, was received by P.W. 13, the Section Officer working in M.A. and W.S. Department. Ex.P-49 is the entry made by him in the personal register about the receipt of the said appeal. On 17.08.1993, P.W. 13 prepared a circulation note, Ex.P-48, seeking orders for circulating the file to A2. The Under Secretary approved the note recommending the rejection of the appeal and P.W. 17, the Joint Secretary, also made an endorsement on 19.08.1993 that the appeal be rejected. P.W. 15, Secretary, M.A. and W.S. Department, passed an order, Ex.P-67, on 24.08.1993, stating that the appeal has to be rejected and the file was sent to A2 on the same day. A2 perused the file and put up his note, Ex.P-53, on 05.05.1994. The file was signed by A1 on the same day. Thereafter, it was returned to the Department on 06.05.1994 and was placed before P.W. 15 on the same day. On 06.05.1994 at about 3.00 p.m., P.W.15 received a phone call from the Minister (A2) and since, he was in the midst of a meeting, he told the Minister that he will peruse the file and pass orders. After half an hour, another call was received from A2 inquiring about the file. Later, after the meeting was over, P.W. 15 perused the file and informed A2 over telephone that there are some difficulties in issuing a Government Order. As the file was in circulation during August, 1993, the filing of the writ petition by the Palani Council against the construction of the hotel and the contempt proceedings initiated against A4 and A5, were not placed before the Minister (A2) and therefore, he informed A2 over telephone about the further developments and told him that the file will be circulated to him as well as to A1 for reconsideration of the orders already passed. According to P.W. 15, A2 informed him not to spoil the file by writing something and suggested that the matter may be discussed with him and sorted out. P.W. 15 was also holding the post of Chairman, Metro Water, during the relevant period. After his telephonic talks with A2, he left the Secretariat and reached the office of Metro Water at 5.00 p.m. and he had also taken along with him Ex.P-48, the note file. At the office of Metro Water, he dictated a note explaining the reasons as to why orders passed by A2 and A1 are to be reconsidered. The note was dictated to P.W. 16, his Secretary. Ex.P-68 is the xerox copy of the said

note. Later, he returned to the Secretariat and called P.W. 17 and asked him to take two xerox copies of the note dictated to P.W. 16 and accordingly, two xerox copies were taken. He asked P.W. 17 to retain one copy and he kept the other with him. The original of Ex.P-68 was kept in the file. On 07.05.1994, P.W.s. 15 and 17 went to the house of A2 at noon, where P.W. 15 explained to A2, the reasons for reconsidering the orders passed by him. He told A2 that the reasons given by A2 are the reasons rejected by the High Court in the writ petition.

Thereafter, he handed over the file along with the original of Ex.P-68 to A2 after requesting him to invite him for a discussion with the Chief Minister on the said matter. On 10.05.1994, P.W. 15 was transferred as Chairman and Managing Director of Tamil Nadu Industrial Explosives Limited and A3 took charge as Secretary, M.A. and W.S. Department, on the afternoon of 10.05.1994. When P.W.15 handed over charge to A3, he informed A3 about the file relating to the hotel and also advised P.W. 17 to brief A3 about the file.

After A3 joined as Secretary, M.A. and W.S. Department, he sent for P.W. 17 and handed over the file to him with a direction that the Government Order should be issued. P.W. 17 perused the file and found that the additional note put up by P.W. 15 was not in the said file. He told A3 about the existence of the additional note. A3 asked P.W. 17 to pass a Government Order. P.W. 17 asked about the additional note of P.W. 15. A3 told him that the said note is not available in the file. P.W. 17 requested A3 to pass an order on the file and accordingly, A3 wrote a note, Ex.P-55, stating that the Minister desires the issuance of a Government Order immediately. Thereafter, Ex.P-73, the order was passed by P.W. 17 directing the Under Secretary to act accordingly. On the same day, G.O. Ms. No. 126, which stands marked as Ex.P-56, was issued.

On 04.11.1994, a meeting was convened at the residence of the Advocate General and it was attended by P.W. 31, Additional Secretary, Law Department, P.W. 14, Under Secretary, M.A. and W.S. Department and A3. On the same day, the note, Ex.P-58, of the Law Department was prepared. Ex.P-102, the minutes of the meeting with the Advocate General, was prepared by A3. The draft Bill to amend Section 217Q of the Tamil Nadu District Municipalities Act, was prepared and shown to the Advocate General on 05.11.1994. On 05.11.1994, Ex.P-52, the note in circulation of M.A. and W.S. Department, was circulated to A3. A3 affixed his signature, P-61, and thereafter, A2 affixed his signature, Ex.P-59.

On 08.11.1994, A1 affixed her signature, Ex.P-60, in Ex.P-52. On 09.11.1994, the Bill for amending the said Act was introduced in the Assembly and on 10.11.1994, it was taken up for consideration and passed as Act 52 of 1994. Ex.P-64 is the original Act and Ex.P-65 is the Amended Act.

On 02.12.1994, P.W. 23, the Additional Government Pleader, addressed a letter, Ex.P-50, to P.W. 14, Under Secretary, MA. and W.S.

Department, and on 05.12.1994, Ex.P-51, the office note of MA. and W.S. Department, was prepared on the basis of the letter Ex.P-50, written by the Additional Government Pleader. On 06.12.1994, G.O. Ms. No. 317, Ex.P-66, was issued.

P.W. 38, Superintendent of Police, Directorate of Vigilance and Anti-Corruption, on receipt of a confidential information that the hotel has been constructed violating the building rules, ordered a preliminary enquiry. A report was filed after conducting a secret preliminary enquiry. On the basis of the information, he registered a case in Crime No. 3/AC/96 under Sections 120B, 420 and 477A IPC and 13(2) r/w 13(1)(d) of the P.C.

Act on 07.08.1996. Ex.P-118 is the first information report. P.W. 41 was entrusted with the task of investigation. P.W. 38 issued orders directing three inspectors to assist P.W. 41 and Ex.P-119 is the order. As per the orders of P.W. 38, P.W. 41 took up investigation in the crime. He searched the house of A3 and questioned witnesses and recorded their statements. He also examined A1 and A2. After completing the investigation, he wrote a letter to the Directorate of Vigilance and Anti-Corruption, seeking sanction for prosecution u/s 197 Code of Criminal Procedure. He also wrote to the Central Government to accord sanction to prosecute A3. The original records were circulated to the Chief Secretary for perusal and later, the final report in the case was filed against the accused u/s 173 Code of Criminal Procedure, on 19.01.1997.

When questioned u/s 313 Code of Criminal Procedure on the incriminating circumstances appearing against the accused, A1 stated that she affixed her signature in the file granting exemption to the hotel and in the file transferring I.A.S. Officers. She also stated that the Tamil Nadu District Municipalities Act was amended by the Assembly by passing an Amendment Act. She further stated that the Governor has no authority to issue orders of sanction. She denied the prosecution evidence in other respects. She also filed a written statement on the same lines and requested the Court to look into her statement made u/s 161 Code of Criminal Procedure as part and parcel of the written statement.

A2 admitted that he made the note, Ex.P-53 and signed the same. He also admitted the evidence of P.W. 25, but denied that P.W. 15 had handed over the additional note, Ex.P-68. He also stated that P.W. 39 deposed falsely since he did not help him to get the post of Technical Director for further period. He denied the evidence of the prosecution in other respects. He also filed written statement, stating that Act 52 of 1994 was piloted by him and that there was no accommodation for tourists at Kodaikanal and there was no loss to the Government by granting exemptions to the hotel from the building rules. He further stated that he felt that environment will not be affected by the construction of the building and that the Act was passed on the basis of the opinion of the Advocate General and he had no motive for granting exemptions.

A3 also admitted the passing of the first Government Order as desired by the Minister and the passing of the Second Government Order as per the advice of the Advocate General. He averred that the Amendment Act was passed following the usual procedure. He stated that due to political animosity, a false case had been foisted upon. He further stated that he acted only according to the Rules.

A4 admitted that he filed a plan for approval and the same was approved. According to him, he submitted a revised plan and the same was not contrary to the rules that existed on that day. He also admitted that he filed an appeal and admitted signing the letter to the Township. He further admitted the filing of a writ petition against the hotel and the orders of the High Court and that he was fined for contempt by the High Court. He stated that he applied for loan from the Indian Bank and the Bank sanctioned the loan. He denied that he met P.W. 39 in the office of the Secretariat. In the written statement filed by him, A4 has stated that the case had been filed because of the adverse publicity generated by the writ petition. He has enclosed the affidavit filed on behalf of the Kodaikanal Township in the Supreme Court, along with the written statement. He further stated that he acted only in public interest in promoting tourism and there is no malafide or misconduct on the part of the Government.

A5 admitted that he gave applications to Indian Bank, Kodaikanal, for loan. He stated that the refusal to give permission by the officials and the Court is not just and proper and that he wrote letters to the Bank for the purpose of getting loan only.

The accused also examined two witnesses on their side. D.W. 1, Section Officer, Public Special Department, was examined and produced Ex.D-1, the Government Order regarding the training period of A3. According to D.W. 1, A3 was undergoing training at Pune from 19.12.1994 to 23.12.1994.

D.W. 2 was the Minister for Cooperation during 1993-95 and he was examined to speak that on 09.11.1994, A2 piloted a Bill for amending the Tamil Nadu District Municipalities Act and that on 10.11.1994, the Amendment Act was passed by voice vote. He has stated that A1 said ''yes'' when the Speaker wanted those supporting the amendment to say "yes".

On the evidence adduced, the learned Trial Judge convicted and sentenced the accused as stated earlier.

The learned senior counsel appearing for A1, contends that the evidence produced by the prosecution is not sufficient to find A1 guilty and according to him, the learned Trial Judge, having acquitted her of the charge u/s 477A IPC, was not justified in convicting her under Sections 120B IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. He further submits that the materials produced do not show that there was conspiracy between the accused and that in view of the positive evidence of the investigating officer that no illegal gratification was paid and received, no offence is made out under the Prevention of Corruption Act. The learned senior counsel appearing for A2, contends that A2 was unjustifiably convicted and that the learned Trial Judge has erred in accepting the evidence of P.W.s. 15 and 17 to hold that P.W. 15 had made an additional dissenting note, Ex.P-68, and the same was given to A2. According to him, Ex.P-68 was never prepared by P.W. 15 and it was prepared later during the course of investigation, only to support the prosecution version. According to the senior counsel, the order of A2, which stands marked as Ex.P-53, in the note file, Ex.P-48, is not an order showing factual malafides, but at best, the order can only be termed as an error of judgment and therefore, he can at best be accused of only legal malafides. He also submits that the evidence does not disclose that A2 has committed the offence under Prevention of Corruption Act and that there is no evidence that A2 was party to a conspiracy. The learned Counsel appearing for A3 contends that A3 assumed office as Secretary, M.A. and W.S. Department, on 10.05.1994 and his joining the department was on account of an order of transfer passed by the Chief Secretary, P.W. 30, and that his transfer to the said department was not at the instance of either A1 or A2. According to him, A3 only carried out the orders of the Minister, who is A2 in the case, by directing P.W. 17 to issue a Government Order and that A3 never conspired with the other accused. He further alleges that the prosecution deliberately introduced P.W. 39 as a witness to implicate A3 and A4 as if they are conspirators. The learned Counsel appearing for A4 also contends that there is no iota of evidence against A4 to show that he was a member of conspiracy and that the case of the prosecution that A4 was in the office room of A3 and seen by P.W. 39, is false, as according to him, the evidence of P.W. 39 stands destroyed by the evidence of D.W. 1 and Ex.D-1, the document marked through him.

Per contra, the learned Special Public Prosecutor (S.P.P.), contends that the note, Ex.P-53, made by A2 in the note file, Ex.P-48, indicates that he is a member of conspiracy and A1, having approved the note of A2 by signing in the note file, Ex.P-48, cannot now contend that she is not a member of conspiracy since her approval led to the passing of G.O. Ms. No. 126 of 1994, which is Ex.P-56 in the case, and later, leading to the issuance of G.O. Ms. No. 317 of 1994, which stands marked as Ex.P-66 in the case. The learned S.P.P. also contends that the evidence of P.W.s. 15 and 17 shows that the additional note, Ex.P-68, was made by P.W. 15 and that the same was handed over to A2 on 07.05.1994 and therefore, A2 was not justified in making the recommendation granting permission to A4 to put up additional floors in the building he was constructing. It is his further submission that Exs.P-110,111 and 112 written by A5, who is dead, when read in the background of Ex.P-113, an affidavit filed by A4, shows that A1 to A5 are members of a conspiracy. According to the learned S.P.P., P.W. 15 was deliberately transferred with a view to bring in A3, a pliable Officer, only in pursuance of the conspiracy.

Now, let me set out to consider the rival contentions on the evidence adduced. For appreciating the case, it becomes necessary to find out whether Ex.P-68, which according to the prosecution is an additional dissenting note prepared by P.W. 15, is a genuine document. P.W. 15 was the Secretary of M.A. and W.S. Department from July, 1993 to May, 1994 and the said department was under the control of the Local Administration Minister, who is A2 in this case. After the appeal of A4, Ex.P-6, was received at the Secretariat, P.W. 13, the Assistant Section Officer working in M.A. and W.S. Department, opened a file, Ex.P-48, prepared a note and placed it before P.W. 14, the Under Secretary.

P.W. 14 signed the file and sent it to P.W. 17, the Joint Secretary. P.W. 17 perused the file on 19.08.1993 and after signing it, circulated the same on that day to P.W. 15, Secretary, M.A. and W.S. Department. On 24.08.1993, P.W. 15 signed the file with the following note, "In view of gross violations, the request may be rejected.". The file was then despatched to the Minister, A2. A2 put up his note, Ex.P-53, in the file, Ex.P-48, on 05.05.1994 and thereafter, sent the file to the Chief Minister, A1, who affixed her signature in the file on the same day. The file according to P.W.

15, was returned to M.A. and W.S. Department on 06.05.1994. On 06.05.1994, while P.W. 15 was in the midst of a meeting, he received a phone call from A2. According to P.W. 15, A2 told him that he sent the file after passing orders and requested him to issue orders on the same. It is his further evidence that he informed the Minister that since he is in the midst of a meeting, he will go through the file as soon as the meeting is over and that about half an hour later, he received another phone call from the Minister reminding him about the file. According to P.W.15, the meeting by then was over and he went through the file. It is also his evidence that he informed A2 over telephone that there is some difficulty in issuing a Government Order and that before informing the Minister, he also discussed the matter with P.W. 17, the Joint Secretary. The evidence of P.W. 15 is to the effect that though he already recommended the rejection of appeal in the file, he found that A2 has passed orders ordering relaxation of the rules in favour of the hotel and that it was also signed by A1. According to P.W. 15, he felt that if the orders of the Minister are implemented, then it may amount to gross violation of relevant rules and it may go against the Government policy of protecting the fragile environment of hill areas, like Kodaikanal. He has stated in his evidence that Palani Council has also filed a writ petition and the same was pending before the High Court and that the Minister was not apprised of the events which took place between 24.08.1993, the date on which the file was sent from MA. and W.S. Department to A2 and 05.05.1994, the date on which A2 put his note, Ex.P-53, in the file, Ex.P-48. P.W. 15 has claimed in his evidence that when he told A2 that there is some difficulty in passing orders, A2 asked him not to spoil the file by writing something and suggested that the matter can be discussed with him and sorted out. On the same evening, P.W. 15 left the Secretariat and went to the office of Metro Water as he was holding an additional post of Chairman, Metro Water. He reached the office of Metro Water by 5.00 p.m. taking along with him the file relating to the hotel. After reaching the office of Metro Water and after attending to the work relating to Metro Water, he dictated a note to P.W. 16, giving reasons as to why the order passed by A2, in which A1 also signed, should be reconsidered. P.W. 15 returned to the Secretariat and showed the dissenting note to P.W. 17. According to him, he asked P.W. 17 to take two xerox copies of the note and accordingly, two xerox copies were taken. P.W. 15 has further claimed in his evidence that he asked P.W. 17 to retain one copy and that he retained the other xerox copy. P.W. 15 has also stated that he went along with P.W. 17 to the residence of A2 on 07.05.1994 at noon and had a meeting with him. At the meeting, P.W. 15 told A2 that orders cannot be issued, since the reasons given by A2 are the reasons already rejected by the High Court, for granting approval. It is the case of P.W. 15 that he left the file and his dissenting note, Ex.P-68, with A2, with a request to consider his order and that he may be called again for discussion with the Chief Minister. P.W. 15, thereafter, left the residence of A2 and on 10.05.1994, he received orders transferring him as Chairman and Managing Director of Tamil Nadu Industrial Explosives Limited. A3 took charge from him as Secretary, M.A. and W.S. Department, on the evening of 10.05.1994. P.W. 15 has further claimed in his evidence that when he handed over charge to A3, he briefed him about the file relating to the hotel and other matters and according to him, he also took leave of P.W. 17 and asked him to brief A3 about the file relating to the hotel. According to P.W. 17, two or three days after A3 took charge as Secretary, M.A. and W.S. Department, A3 sent for him and told him that he received the file from the Minister relating to the hotel and wanted him to pass orders.

P.W. 17 has claimed that he perused the file and found that the additional note prepared by P.W. 15 was not available in the file and that there was no further order of A2 except for his earlier order dated 05.05.1994. According to P.W. 17, he requested A3 that the file should be sent back to A2 and he also asked A3 about the additional note, Ex.P-68, prepared by P.W. 15, and A3 told him that there is no such note in the file.

P.W. 17 has stated in his evidence that since there are dissenting notes in the file, A3 must pass an order in the file, if any orders are to be issued and therefore, A3 passed an order, Ex.P-55, in the file, Ex.P-48, by stating that "the Minister desired that orders on this should be issued immediately". Thereafter, G.O. Ms. No. 126, which stands marked as Ex.P-56, was issued.

The facts narrated above as extracted from the evidence of P.W.s. 14, 15 and 17, show that the file was received by P.W. 15 on 06.05.1994 from the Minister and that he talked to the Minister over phone and thereafter, prepared an additional dissenting note, Ex.P-68, on the same day and that he met the Minister on 07.05.1994 and that he handed over the said additional dissenting note to the Minister and told him that there are some difficulties in passing orders. It is the further case of the prosecution that P.W. 15 also requested A2 to call him for a further discussion with A1 on the subject.

The question to be decided is whether the file, Ex.P-48, was received by P.W. 15 on 06.05.1994 and whether he prepared the additional note, Ex.P-68, as claimed by him. P.W. 15 has, in chief examination, stated that the file was received by him on 06.05.1994 and this evidence of P.W. 15 is not supported by P.W. 13, the Assistant Section Officer. P.W. 13 has, in his evidence, stated that the file was despatched from M.A. and W.S. Department when P.W. 15 was the Secretary and it was received back at the department after A3 had taken over as the Secretary. It is his further evidence that the file was received in the department only on 12.05.1994, which means, the file was returned to the department when P.W. 15 was not the Secretary of M.A. and W.S. Department, since, even according to P.W. 15, he has handed over charge to A3 on the evening of 10.05.1994. The evidence of P.W. 13 is also supported by Ex.P-49, the personal register maintained at the department, wherein entries have been made by P.W. 13 to the effect that the file was received on 12.05.1994. P.W. 13 was made to say that the entries made in the said register, were made by him by mistake and therefore, the prosecution submits that the entries in Ex.P-49 shall not be taken into consideration to hold that the file was received at the department on 12.05.1994. This argument of the prosecution is difficult to accept. The explanation of P.W.

13 is that by mistake, he made the entries, but he has no explanation as to why he had made such entries. When there is a document showing the date on which the file was received, it is to be accepted, in the absence of explanation from P.W. 13 as to the circumstances under which he made the entries that it was received on 12.05.1994. If it is to be stated that the file was received on 06.05.1994, but an entry was made in the said register to the effect that it was received on 12.05.1994, the said entry could not have been made by P.W. 13 with a view to help A2, since on the day when the file was received back in the department, P.W. 13 could not have expected that there will be a criminal case in future and that A2 has to be helped by making incorrect entries in the register to make it appear that the file was received only on 12.05.1994 and not on

06.05.1994. The entries in Ex.P-49 that the file was received at the Secretariat on 12.05.1994, is further strengthened by the seal found affixed on Ex.P-48, which shows that the file was received at the M.A. and W.S. Department only on 12.05.1994. If the file was actually received on 12.05.1994, then the evidence of P.W. 15 that it was received on 06.05.1994 and that while he was in the midst of a meeting, the Minister called him and asked him to issue orders and that he prepared an additional note, Ex.P-68, on the same evening at the office of Metro Water, which, according to him, was handed over to A2 on 07.05.1994, cannot be true.

It is also to be remembered that according to P.W. 15, the file was brought to him in a sealed cover on the evening of 06.05.1994 by his personal assistant and the prosecution did not examine the said personal assistant. The evidence of P.W.13 that the file was received at the department on 12.05.1994 after the transfer of P.W. 14, makes it difficult for the Court to accept the version of P.W. 15 that the file was received on 06.05.1994 and that he made an additional dissenting note, Ex.P-68, on the same evening. We cannot also loose sight of the fact that the evidence of P.W. 13 that the file was received on 12.05.1994 at the department is supported by the office seal itself dated 12.05.1994. If the file was received only on 12.05.1994, then P.W. 15 could not have made the additional dissenting note, Ex.P-68, on 06.05.1994. According to P.W.

15, he made the additional dissenting note, Ex.P-68, after the office hours of 06.05.1994 and he requested P.W. 17 to take two xerox copies of the same. According to him, he retained one copy and handed over the other Xerox copy to P.W. 17. He has further deposted that after he handed overcharge to A3, he briefed him about the hotel file. Admittedly, he did not hand over the xerox copy which he had in possession, to A3.

It is nobody's case that P.W. 15 had a suspicion that A3 was brought in only to replace him and that A3 is a willing tool in the hands of A2. In the above background, one will normally expect P.W. 15 to have handed over the xerox copy of the additional dissenting note to A3, which he did not do. P.W. 17 has also given evidence to the effect that when the file came back to A3, the note was not there and it is strange that P.W. 17 did not think it necessary to hand over his copy to A3, since it would have been the normal conduct of any person. The conduct of P.W. 17 in not whispering a word about the dissenting note of P.W. 15 to A3, creates a suspicion in the mind of the Court that Ex.P-68 could not have been prepared as claimed by P.W. 15. The additional dissenting note, Ex.P-68, was allegedly produced by P.W. 17 to the investigating officer at the time when he was examined. It is also surprising that P.W. 17 was keeping silent for two years about the existence of a dissenting note of P.W. 15.

The document, Ex.P-49, wherein contemporaneous entries are made by P.W. 13 and the evidence of P.W. 13 destroy the version given by the prosecution through P.W.s. 15, 16 and 17 that an additional dissenting note was prepared by P.W. 15 on the evening of 06.05.1994. Therefore, it is seen that Ex.P-68 was sought to be introduced by the police during the course of investigation with a view to make it appear as if that A2 had a guilty mind. It is to be remembered at this stage that though P.W.15 has, in his evidence, stated that he retained a copy of Ex.P-68, he did not hand over the same to the investigating officer. In his evidence, P.W.15 had come out with contradictory versions as to why he did not hand over the said copy. At one place, he has stated that he was destroyed it and at another place, he has stated that has misplaced it and that he could not trace it. It is difficult to believe the story of P.W. 15 that he has misplaced the xerox copy of the dissenting note. This is probably to explain the non-production of such a copy to the police officer. The evidence of P.W. 15 indicates that he took a xerox copy of the additional dissenting note only to safeguard himself in future and if so, it is surprising that he destroyed it or misplaced it as claimed by him.

The contention of the learned S.P.P. that there are number of mistakes in Ex.P-68 and they are seen corrected by hand and therefore, it shows that the note should have been prepared by P.W. 15 on 06.05.1994, cannot be accepted, since the said argument is based without taking into consideration the evidence of P.W. 13 and the document, Ex.P-49, relied on by the prosecution. As stated earlier, the prosecution elicited in chief from P.W. 13 that the file was received back on 12.05.1994. If so, P.W. 15 could not have prepared the additional dissenting note on

06.05.1994. I have also perused Ex.P-48, the office file. According to P.W. 15, he prepared Ex.P-68 in a separate sheet and the explanation offered by P.W. 15 is that A2 requested him not to spoil the file by writing something and that therefore, he prepared a separate dissenting note.

This evidence of P.W. 15 is too artificial to be accepted. P.W. 15, by his own showing, wants to project himself as a person, who was not prepared to toe the line of A2 and wanted to make his intentions clear by putting a dissenting note. If so, P.W. 15 ought to have made the dissenting note in the file, Ex.P-48, itself. A perusal of Ex.P-48 shows that it contains three sheets, containing the note prepared by P.W. 14, the endorsement made by P.W. 15, the note, Ex.P-53, put up by A2 with his signature, and the signature of A1. Page No. 6 of the file was blank on 06.05.1994 when the file was allegedly received back by P.W. 15. Nothing prevented P.W. 15 from writing his dissenting note on the last page, which was blank, and the present explanation that A2 asked him not to spoil the file by writing something, is too artificial to be accepted, as I have already stated that P.W. 15 wanted to make his stand clear by making the dissenting note. So, nothing prevented P.W. 15 from noting his dissent at page No. 6 of the file, which was blank on 06.05.1994. It is unbelievable that a senior office, like P.W. 15, will prepare a loose note, which is contrary to the Tamil Nadu Government Business Rules and Secretariat Instructions. The dissenting note, Ex.P-68, was not even stitched with the file, Ex.P-48. Rule 79(6) of the Secretariat Office Manual states that the pages should be numbered continuously and both sides of each leaf should be numbered even though one of the sides may be blank. It further states that old page numbering, if any, should be erased or scored out.

Rule 99 of the said Manual is to the effect that the note connected with any subject shall run continuously from the inception of the file and till the orders are passed. It also requires that paragraphs of each note should be numbered. P.W. 15 ought to have followed these Rules and he cannot claim now in Court that he prepared an additional note, Ex.P-68. In this connection, Rule 7 of the Secretariat Instructions assumes importance and the said Rule reads as follows: ""Where a Minister passes order contrary to the orders suggested in the noting, further circulation shall invariably be interrupted and the file sent to the Chief Secretary or the Secretary of the Department concerned as the case may be."" The above Rule, therefore, suggests that P.W. 15 ought to have sent the file to the Chief Secretary, if he was of the opinion that A2 is not agreeing with him on the note made by him. The evidence of P.W. 15 that he handed over Ex.P-68 in a loose sheet to A2, after A2 passed his orders. Ex.P- 53, is too artificial. A perusal of Ex.P-68 also creates a suspicion in the mind of the Court about its authenticity. In paragraph No. 2 of the said note, P.W. 15 has stated as follows:

Under the relevant rules, the height of the building is to be measured only with respect to the ground level of the site and not with respect of the level of the access road (rule says that the height "shall be reckoned" from the general ground level of the site and shall be measured at every point on the ground).

The contents of Paragraph No. 2 of Ex.P-68 show that P.W. 15 has quoted Rule 11(3) of the Development Control Rules in verbatim, since in the bracketed portion, he has stated, ""rule says that the height "shall be reckoned" from the general ground level of the site and shall be measured at every point on the ground"". It is difficult to believe that P.W. 15 prepared this note quoting the above Rule in verbatim, at the office of Metro Water, especially when the said Rule is not found in the note file, Ex.P-48. P.W. 15 also admitted in his evidence that he never prepared such notes in loose sheets on earlier occasions. The evidence of P.W. 15 that he prepared the additional note on 06.05.1994 in loose sheets and handed over the same to A2 on 07.05.1994 and that P.W. 17 was also present with him, is also too artificial to believe. Even according to P.W.

15, on 06.05.1994, A2 rang him up and told him that he sent the file and there is no evidence to show that A2 wanted P.W. 15 to meet him on the next day. It is therefore, not clear as to why P.W. 15 thought it necessary to prepare an additional dissenting note on the same day, i.e. 06.05.1994, and there is also no explanation as to why he went and met A2 on 07.05.1994, along with P.W. 17, when he was not asked by A2 to come and meet him. I am unable to accept the evidence of the witnesses to hold that me dissenting note, Ex.P-68, was prepared by P.W. 15.

A perusal of Ex.P-68 shows that A1, even according to the dissenting note, is not aware of the relevant facts mentioned in the last 6 or 7 lines in the said note. It could be seen that P.W. 15 was of the opinion that several inaccuracies had crept in inadvertently in the note put up by A2 and that they have to be brought to the notice of A1. Before the trial Court, the prosecution conceded that the additional note, Ex.P-68, was not brought to the notice of A1. So, it is clear that P.W. 15 believed that if these facts are brought to the notice of A1, she will reconsider her decision.

This shows that A1 could not have conspired to remove the additional dissenting note, Ex.P-68, as charged under Charge No. 1. A1 also, therefore, cannot be faulted for believing the inaccuracies found in the note file, since, according to P.W.15''s alleged dissenting note, there were inaccuracies in the note file. On the entirety of evidence, I am unable to place any reliance on the evidence of P.W.s. 15, 16 and 17 to say that P.W. 15 prepared an additional dissenting note, Ex.P-68, on 06.05.1994. I reject their evidence and Ex.P-68.

To establish the case of conspiracy, the prosecution had come out with a version that P.W. 15 was transferred and in his place, A3 was brought in as Secretary, M.A. and W.S. Department. The learned trial Judge also took this as a circumstance to hold the accused guilty. P.W. 30 was the Chief Secretary during the relevant period. He has deposed as to the procedure adopted for transferring an officer. According to him, an officer will be transferred once in three years and the said transfer will be suggested by the concerned department. He has further stated that the Chief Secretary will also suggest the transfer of an officer taking into consideration the efficiency of the officer and that sometimes, the Ministers or senior officers may also suggest for the transfer of an officer. He has stated even in chief-examination that it was he, who proposed the transfer of P.W. 15. Therefore, the evidence of P.W. 30 that he proposed the transfer of P.W. 15 is not a circumstance against A2, since the transfer of P.W. 15 was not at the instance of either A2 or A1. P.W. 30 did not say anywhere in his evidence that the transfer of P.W. 15 was proposed by him on account of the request made by either A2 or A1. The evidence of P.W. 30 makes it clear that the transfer of P.W. 15 was a routine transfer. Ex.P-98, the proposal for transfer, shows that it was not a proposal for the transfer of P.W. 15 alone but it was a proposal proposing transfer of 11 officers. Ex.P-98, the note for circulation, was prepared on 06.05.1994 and sent for the approval of A1 on the same day. A1 also accepted the proposal with some modifications on 06.05.1994 itself. The facts extracted above show that the proposal for transfer of 11 officers including P.W. 15, was mooted by the Chief Secretary, P.W. 30, and that it was not at the behest of either A1 or A2, and it was accepted by A1 on 06.05.1994. Even according to the prosecution, the file, Ex.P-98, was returned to the Secretariat from A1 on 06.05.1994 and according to P.W. 15, he prepared the additional dissenting note on the evening of 06.05.1994, which, according to him, was handed over to A2 on

07.05.1994. Therefore, it is clear that neither A1 nor A2 could have been responsible for the transfer of P.W. 15, since, even according to P.W.

15, he prepared the additional dissenting note even on the evening of 06.05.1994, i.e. much after the proposal, Ex.P-98, was mooted by P.W. 30 and accepted by A1, as P.W. 15 has stated that he handed over the additional dissenting note to A2 on the evening of 07.05 1994.

The contention of the learned S.P.P. that P.W. 15 did not complete three years as Secretary, M.A. and W.S. Department, and therefore, there was no need for his transfer on 07.05.1994 and the said transfer can be taken into consideration to infer conspiracy, is to be stated only to be rejected, as I have already stated that P.W. 30 has stated that the proposal for the transfer of P.W. 15 was his proposal and the same was not at the instant of either A1 or A2. It is also to be remembered that the prosecution did not establish that A3 did not complete three years in his earlier position and that the transfer of P.W. 15 was effected in order to bring A3 in the place of P.W. 15. In the absence of any evidence to show that A3 did not complete three years, it is possible that on the completion of the tenure of three years of A3 in his earlier position, he would have been transferred as Secretary, M.A. and W.S. Department and nothing sinister could be seen in the said transfer. I am unable to accept that P.W.

15 was deliberately dislodged from his position with a view to bring in a pliable officer. The effect of Ex.P-68 that it resulted in the transfer of P.W.

15, cannot be accepted since I have already held that Ex.P-68 could not have come into existence on 06.05.1994. The effect having gone, the cause of Ex.P-68 is not acceptable as the note file, Ex.P-48, was received at the department only on 12.05.1994 and P.W. 15 was not the Secretary of M.A. and W.S. Department on that date, as he handed over charge to A3 even on 10.05.1994. I am, therefore, unable to accept the contention of the prosecution that the transfer of P.W. 15 is a circumstance indicating conspiracy.

It is the case of the prosecution that the note file, Ex.P-48, went from A2 to A1 directly and it did not go through the Chief Minister's Secretariat. This, according to the prosecution, is a circumstance to infer conspiracy. P.W. 26 was examined to say that the file, which is received at the Chief Minister's Secretariat, will be entered in a register and there after, sent to the Chief Minister with notes. According to the prosecution, the register maintained at the Chief Minister's Secretariat did not contain any entry to show that the file, Ex.P-48, was received at the office of the Chief Minister. This evidence of P.W. 26 is not helpful to the prosecution in view of the evidence of P.W.s. 29 and 27. P.W. 29 has stated in his evidence that in the Chief Minister's Secretariat, five officers were working and the files relating to the Municipal Administration Department, were looked after by one Sampath and after his transfer, they were looked after by P.W. 27. P.W. 27 has, in his evidence, stated that he was looking after the files relating to Department of Municipal Administration in the year 1995-96, which means before 1995-96, the files relating to the Municipal Administration Department, were looked after by the said Sampath. The prosecution, therefore, ought to have examined the said Sampath, who was incharge of the files relating to the Municipal Administration Department as the relevant date is 05.05.1994. If the prosecution had chosen to examine the said Sampath, then he could have given an explanation as to why the file did not contain the seal of the chief Minister's Secretariat. P.W.s. 26, 27 and 29 are not competent to speak on this aspect and the prosecution having withheld the said Sampath by not examining him in Court, cannot find fault with A1 and A2 by showing that the file went to the hands of A1 directly from A2 and that it did not travel through the regular course. In this background, the evidence of P.W. 29 that sometimes, sealed covers used to come to the Chief Minister, not only from the Chief Secretary, but also from other people, assumes importance. In the absence of any evidence that Ex.P-48 was not sent in a sealed cover, the prosecution cannot rely on the absence of the seal of the Chief Minister's Secretariat in the file as a circumstance against A1 and A2. In fact, Ex.P-52, note for circulation, prepared by M.A. and W.S. Department and Ex.P-98, note for circulation, sponsoring the transfer of officers, do not contain the seals though both the documents were sent for A1''s approval. The learned S.P.P. submits that Ex.P-52 being an urgent note and Ex.P-98 being a confidential note as it proposed the transfer of officers, they do not have the seals. This argument, I am unable to accept. There is no evidence that urgent and confidential files reach the Chief Minister directly, without seals being affixed on them. According to the learned S.P.P., all correspondence dealing with the appointments, postings and promotions shall be treated as strictly confidential and shall be kept as far as possible in the hands of Gazetted Officers of the Secretariat and for the said submission, he relies on Clause 13(ii)(1) of the Secretariat Instructions. It is the submission of the learned S.P.P. that Ex.P-98 being a proposal for transfer, is a confidential file and therefore, it did not contain the seal. The said submission is unacceptable, since the said instruction only states that the correspondence dealing with the matters mentioned therein, shall be kept as confidential and not a proposal for transfer. In any event, as I have stated earlier, in the absence of any definite evidence that confidential and urgent files will not be affixed with seals, the prosecution cannot rely on the absence of seal in Ex.P-48 to say that the file went to A1 directly from A2, since it is seen that the other files, which are marked as exhibits in this case, were also marked to A1 for approval without seals being affixed on them.

The next circumstance relied on by the prosecution to show that there was conspiracy is the conduct of bringing an amendment to Section 217Q of the Tamil Nadu District Municipalities Act, 1920. As the Act stood before the amendment, it authorised the Government to grant exemption to buildings belonging to Central and State Governments. The amendment is to the effect that the State Government can grant exemption to other buildings , i.e. to the buildings owned by individuals. Chapter X-A was introduced in the said Act with effect from 09.12.1992 and the amendment introduced in the above Section gave retrospective effect, i.e. to take effect from 09.12.1992. So, when Ex.P-56 was issued granting exemption, the Government had no authority to grant exemption and for giving validation to such an exemption, the Government brought an amendment to the Section with retrospective effect. It is not a conduct indicative of conspiracy. Prior to the amendment, Section 217Q of the said Act read as follows:

Power to exempt from the provisions of this Chapter: The State Government may, by order, exempt subject to such conditions if any, as may be specified in the order, the Central or the State Government from all or any of the provisions of this Chapter.

The amended Section which gave retrospective effect reads as follows:

Power to exempt or relax: The State Government may, if satisfied that it will not result in the deterioration of scenic beauty or destruction of the environment and ecosystem of the hill station, by order -

(a) exempt, subject to such conditions if any, as may be specified in the order, the Central Government or the State Government or any building or

class of buildings from all or any of the provisions of this Chapter or Chapter X of this Act; or

(b) relax, subject to such conditions, if any, as may be specified in the order, any rule made under this Chapter or Chapter X of this Act, in favour

of the Central Government or the State Government or in respect of any building or class of buildings.

It is not disputed even by the prosecution that the conduct of A1 in signing the proposal for sending the amendment to the Legislature, cannot be questioned, as it is a legislative process and the legislature having passed the amendment and the Bill having been passed by the legislature, A1 cannot be questioned about the amendment.

On 18.10.1994, W.P. No. 13104 of 1994 came up for hearing before the High Court and on that day, a contention was raised before the Court that the Government had no power to grant exemption to the hotel u/s 217Q of the Tamil Nadu District Municipalities Act. Therefore, the State took an adjournment for 09.11.1994. After the adjournment was taken, a meeting was convened by the Advocate General in his residence at 10.00 a.m. On 04.11.1994. P.W. 31, Additional Secretary, Law Department, and the Assistant Director, Town and Country Planning Department also participated in the meeting. After the discussion in the residence of the Advocate General and on the suggestion of the Advocate General, the Law Department prepared a note, Ex.P-58, on the same day, i.e. on 04.11.1994. In the said note, it is mentioned that the Advocate General advised that the scope of Section 217Q of the said Act has to be enlarged so as to include within its ambit the power to give exemption to private buildings and it was suggested that guidelines may also be specified in the provisions relating to exemption similar to the guidelines specified for granting a licence u/s 217D of the Act. The Advocate General further suggested that a Bill should be introduced immediately. Thereafter, Ex.P- 52, an office note of the Municipal Administration and Water Supply Department, was put up. On 05.11.1994, the draft Bill was shown to the Advocate General, who approved it. According to P.W. 31, at the meeting in the residence of the Advocate General, the Advocate General suggested that an amendment must be introduced to the Act and the said amendment must be with retrospective effect. P.W. 31 has stated in his evidence that the Act was amended with retrospective effect on the advice of the Advocate General. Thereafter, Ex.P-58, the minutes of the meeting, was prepared. This evidence of P.W. 31 indicates that the amendment with retrospective effect was brought in to the Act not at the instance of either A1 or A2, but at the instance of the Advocate General. This amendment was brought in with retrospective effect not for the purpose of saving the exemption granted to the hotel, but also to give relief to other people who have filed appeals. P.W. 11 has, in his cross-examination, admitted that most of the appeals were kept pending in the Government awaiting the amendment of the Act and Rules. This admission of P.W. 11 that there were number of appeals pending with the Government waiting for the amendment, when seen in the background of the evidence of P.W. 31, Additional Secretary, Law Department, that the amendment was brought in to the Act with retrospective effect on the advice of the Advocate General, shows that the said amendment was not brought in with any corrupt motive and it only shows that the Government was contemplating to amend the Act to grant exemption in appropriate cases. Therefore, the proposal to amend Section 217Q of the above Act is wholly irrelevant to hold that A1 to A3 were members of conspiracy.

The learned S.P.P.'s contention that the conduct of A1 and A2 in not cancelling the G.O. but introducing an amendment to the Section, has no

charm. The amendment is by the legislature and the Validation Act is always enacted with a view to enact an act already done and it cannot be said that the Validation Act is a criminal act. This argument cannot stand scrutiny either from the constitutional point of view or from the administrative law and much less from the criminal law point of view.

Similarly, I am unable to accept that G.O. Ms. No. 317, Ex.P-66, was issued with retrospective effect, only in pursuance of a conspiracy, in view of the nature of evidence available on record. When W.P. No. 13104 of 1994, which was filed to question the action of A2 to grant exemption, and W.P. No. 13231 of 1992, which was filed questioning the construction of A4 and A5, were taken for hearing on 02.12.1994, the Court asked whether any exemption notification was issued u/s 113 of the Tamil Nadu Town and Country Planning Act, 1971. P.W. 23, the Additional Government Pleader was present in Court along with the Advocate General on that day. According to P.W. 23, when the Court questioned him as to whether any notification was issued u/s 113 of the said Act, he took an adjournment to find out from the Government whether any such notification was issued and according to him, the Advocate General, who was by his side, asked him to address the Government and obtain the information relating to the notification. According to him, he wrote Ex.P-50, a letter, to the Government. In the said letter addressed to the Secretary to Government, M.A. and W.S. Department, he has stated that the Advocate General wanted him to clarify from the Government as to whether any separate notification has been made in respect of relaxation of Development Control rules u/s 113 of the Tamil Nadu Town and Country Planning Act, since the Section stipulates that the Rules have to be notified. He has further stated that if the notification has not been made, the Government can immediately notify and gazette it on or before 07.12.1994 and furnish a copy of the said notification to enable him to conduct the case. He has requested the Government to treat it as urgent. After receipt of the letter, Ex.P-50, written by P.W.23, Ex.P-51, a note, was put up, which was signed by P.W. 13 and P.W. 14 on 05.12.1994 as well as by A3 on 06.12.1994. In the said note, it is mentioned that the Additional Government Pleader has stated that the Advocate General required a clarification whether a separate notification was made in respect of the exemption Section of Development Control Rules u/s 113 of the Town and Country Planning Act, 1971. This note was neither signed by A1 nor by A2. The draft notification was put up for approval and approved by the Secretary and others. Therefore, it cannot be said that the notification, Ex.P-66, was issued at the instance of either A1 or A2. The evidence of P.W. 23 and Ex.P-50 show that neither A1 nor A2 had any role to play in the issuance of the said G.O.

At this juncture, it is also useful to refer to the evidence of P.W. 40, who assisted P.W. 41 in the investigation. P.W. 40 has, in his evidence, admitted that he was specifically asked to investigate whether any monetary consideration passed between the parties and that therefore, he investigated that aspect and his investigation did not reveal that A1 to A3 received any monetary consideration. The learned trial Judge has misdirected himself on a question of fact when he held that Ex.P-66 was issued at the instance A1 and A2, as he did not consider the evidence of P.W. 23, the Additional Government Pleader, and Ex.P-50, the letter written by him, and had he taken this into consideration, he would have given a finding that Ex.P-66 was not issued at the instance A1 and A2, in pursuance of a conspiracy.

Now, let me take up to find out whether Ex.P-53, the note put up by A2, in the note file, Ex.P-48, granting relief to the hotel can be considered as an act indicating conspiracy. A perusal of the order of A2 in the note file, Ex.P-48 shows that he misdirected on certain facts. A Division Bench of this Court, which had an occasion to consider the order of A2, also held that there were only legal malafides and no factual malafides were seen in the conduct of A2 in putting up the note, Ex.P-53, which was approved by A1. The findings of the Division Bench that there were no factual malafides and it only involves legal malafides, were confirmed by the Supreme Court when the matter was taken up on appeal. The evidence of P.W. 40 that there was no illegal gratification passed between the accused, assumes importance. Unless it is shown that it is a dishonest order, A2 cannot be blamed for making such a note. Even if the order cannot be maintained legally, A2 cannot be accused of receiving illegal gratification as he is guilty of only legal malafides and not guilty of factual malafides.

In State of Bihar and Others Vs. Kripalu Shankar and Others, the Supreme Court had an occasion to consider as to the effect of the orders passed in the note file and observed that government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister himself and till then, conflicting opinions, views and suggestions would have emanated from various officers at the lower level. The Supreme Court further observed as follows:

There should not be any fetter on the fearless and independent expression of opinions by officers on matters coming before them through the files.

This is so even when they consider orders of Courts. Officers of the Government are often times confronted with orders of Courts, impossible of immediate compliance for various reasons. They may find it difficult to meekly submit to such orders. On such occasions, they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the Courts would not have passed those orders if full facts were placed before them. The expression of opinion by the officers in the internal files are for the use of the department and not for outside exposure or for publicity. To find the officers guilty for expressing their independent opinion, even against orders of Courts in deserving cases, would cause impediments in the smooth working and functioning of the Government.

The Supreme Court further held that - It would be dangerous to find an action for contempt, for the views expressed in the notes file, on the discovery of unpleasant or unsavory notes, on a perusal of the notes file by the Court after getting them summoned. This would impair the inde pendent functioning of the civil service essential to democracy. This would cause impediments in the fearless expression of opinion by the officers of the Government. The notings on files differ from officer to officer. It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedience of an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him. To rely upon the notings in a file for the purpose of initiating contempt, in our view, therefore, would be to put the functioning of the Government out of gear. We must guard against being over-sensitive, when we come across objectionable notings made by officers, sometimes out of inexperience, sometimes out of over-zealousness and sometimes, out of ignorance of the nuances of the question of law involved.

In Sirros v. Moore and Ors. ( (1974) 3 All ER 776), Lord Denning had an occasion to consider the immunity of the Court. The facts in the case show that Michael Sirros, an alien and a citizen of Turkey, sought to enter the country and was given leave to land on a condition that he only stayed a limited time. He broke the condition and he stayed too long. He was brought before the Magistrate at Clerkenwell on 13.12.1971 for breach of the Aliens Order 1953. The Magistrate fined him 50 pounds and made a recommendation that he be deported. The Magistrate did not himself make a deportation order as it was not for him to do so, but for the Home Secretary. The Magistrate directed that Sirros be not detained pending the decision of the Home Secretary. Sirros gave a notice of appeal against the sentence and against the recommendation for depuration .The appeal came up for hearing before the Crown Court consisted of Judge MacLeay, a Circuit Judge, and two Magistrates. The appeal was dismissed on the ground that the Judge had no jurisdiction to deal with it. After the case was over, the Judge saw Sirros leaving the Court and the Judge called out, "Stop him". The police officers hurried out but Sirros had gone. He went out of the Court building in St. Jame's Square and the other police officers caught and brought him back and he was put in the cells. In the meantime, the Judge had gone out for lunch and Sirros was produced before the Judge in the afternoon. The Judge, thereafter, made a formal order remanding Sirros in custody under an order made for recommendation for deportation. On 27.03.1972, Sirros brought an action against Michael Ernest Moore, a police officer, the Commissioner of Police for the Metropolis and the Judge Oswell Seawright Macleay, one of Her Majesty's Circuit Judges, claiming damages for assault and false imprisonment. Lord Denning observed as follows:

As a matter of principle, the judges of superior Courts have no greater claim to immunity than the judges of the lower Courts. Every judge of the Courts of this land from the highest to the lowest should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure that they may be free in thought and independent in judgment, it applies to every judge, whatever his rank.

Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: "If I do this, shall I be liable in damages?"

So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction in fact or in law but SO long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck

out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

(Emphasis supplied)

The principles enunciated by Lord Denning has universal application, in that each must act fearlessly. Therefore, A2 passed an order, Ex.P-53, in the note file, Ex.P-48, by giving his own reasons and merely because P.W. 15 recommended for rejection, he is not bound by such recommendation and as long as he honestly believed that his order is not wrong, he shall not be made criminally liable.

Section 77 IPC states that "Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law". Section 79 IPC states that ""Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it"". Therefore, as long as A2 is not seen to have acted with malice or corrupt motive, he cannot be made liable. Section 79 IPC makes it clear that if one, by reason of mistake of fact and not by reason of a mistake of law in good faith, believes that he is justified in committing an act (in this case, passing an order by A2), then it will not be an offence.

The Chief Justice of England Howell was asked to appear before the House of Lords to explain as to why he had given a judgment holding that the House of Lords did not adopt the procedure while it conferred peerage on a person. He appeared and answered as follows:

If Your Lordships report this to the House, I desire to know when you do so that I may then desire to be heard in point of law.

The judgment is questionable in a proper method; but, I am not to be questioned for my judgment.

I am not any way to be arraigned for what I do judicially; the judgment may be ar raigned in a proper method by writ of error.

(Emphasis supplied)

Therefore, even if an incorrect order, which is not legally sustainable, is passed, it cannot be said, in the absence of any evidence, that the said order was passed with dishonest intention. The order can be challenged and it can be even set aside; but, A2 cannot be held guilty for passing an order without any dishonest intention. An honest officer can pass an incorrect order and a dishonest officer can pass a correct order sustainable in law.

In Common Cause, A Registered Society Vs. Union of India and Others, the Supreme Court, while dealing with tortuous liability of the Minister in allocating petrol bunks, quoted with approval the passages in Administrative Law by Sir William Wade, 7th Edn., and observed as follows:

In Administrative Law by Sir William Wade, 7th Edn., "misfeasance in public office" had been defined as malicious abuse of power, deliberate maladministration and unlawful acts causing injury. It is further provided in the same book that "misfeasance in public office" is the name now given to the tort of deliberate abuse of power. After considering various decided cases, Prof. Wade proceeds to say:

This and other authorities, including the last-mentioned decision of the House of Lords, were held to establish that the tort of misfeasance in public office goes at least to the length of imposing liability on a public officer who does an act which to his knowledge amounts to an abuse of his office and which causes damage.

Prof. Wade further proceeds to say as under:

There are now clear indications that the Courts will not award damages against public authorities merely because they have made some order which turns out to be ultravires, unless there is malice or conscious abuse. Where an Australian local authority had passed resolutions restricting building on a particular site without giving notice and fair hearing to the land owner and also in conflict with the planning ordinance, the Privy Council rejected the owner's claim for damages for depreciation of his land in the interval before the resolutions were held to be invalid. The well established tort of misfeasance by a public officer, it was held, required as a necessary element either malice or knowledge by the council of the invalidity of its resolutions. In New Zealand also, a company failed in a claim for damages resulting from a Minister's refusal of permission for it to obtain finance from a Japanese concern. The Minister's refusal was quashed as ultravires, but it was held that this alone was not a cause of action.

Nor does it appear that claims of this kind can be strengthened by pleading breach of statutory duty.

The Court of Appeal reinforced these decisions in a case of importance, but since shown to be of doubtful authority, under European Community

Law. A ministerial revocation order had prohibited the import of turkey meat from France and was held unlawful by the European Court as being in breach of Article 30 of the Treaty of Rome, which is binding in British Law under the European Communities Act, 1972. French transfers who had suffered losses under the ban then sued the Ministry for damages. On preliminary issues it was held that they had no cause of action merely for breach of statutory duty, as already related. Likewise, there was no cause of action merely because the Minister's order was unlawful; it could be quashed or declared unlawful on judicial review, but there was no remedy in damages. There would be such a remedy, however, if it could be shown that the Minister had abused his power, well knowing that his order was a breach of Article 30 and would injure the Plaintiffs business. It was alleged that his conscious purpose was to protect English turkey producers rather than to prevent the spread of disease, and that he knew that this made his order unlawful. The element of bad faith, or malice as Judges have often called it seems now to be established as the decisive factor.

Thereafter, after discussing a number of authorities, Prof. Wade further says as under:

But the main principles of liability seem now to be emerging clearly. It can be said that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:

if it involves the commission of a recognised tort such as trespass, false imprisonment or negligence;

if it is actuated by malice, e.g. Personal spite or a desire to injure for improper reasons;

if the authority knows that it does not possess the power to take the action in question.

The decisions suggest that there is unlikely to be liability in the absence of all these elements, for example where a licensing authority cancels a license in good faith but invalidly, perhaps in breach of natural justice or for irrelevant reasons. Since loss of livelihood by cancellation of a license is just as serious an injury as many forms or trespass or other torts, it may seem illogical and unjust that it should not be equally actionable; and in obiter dicta in a dissenting judgment Denning, L.J. once suggested that it was. Some cases of this kind may involve breach of statutory duty, where there is the broad principle of liability discussed above. But where there is no such breach, it seems probable that public authorities and their officers will be held to be free from liability so long as they exercise their discretionary powers in good faith and with reasonable care. Losses caused by bonafide but mistaken acts of a Government may have to be suffered just as much when they are invalid as when they are valid.

Halsbury's Laws of England, Vol. I (I) 4th Edn., (Reissue), (para 203) provides as under:

Deliberate abuse of public office or authority: Bad faith on the part of a public officer or authority will result in civil liability where the act would constitute a tort but for the presence of statutory authorization, as Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. Proof of improper motive is necessary in respect of certain torts and may negative a defence of qualified privilege in respect of defamation, but this is not peculiar to public authorities. There exists an independent tort of misfeasance by a public officer or authority which consists in the infliction of loss by the deliberate abuse of a statutory power, or by the usurpation of a power which the officer or authority knows he does not possess, for example by procuring the making of a compulsory purchase order, or by refusing, or cancelling or procuring the cancellation or a license, from improper motives. However, where there lias been no misfeasance, the fact that a public officer or authority makes an ultra vires order or invalidly exercise statutory powers will not of itself found an action for damages.

De Smith in Judicial Review of Administrative Action, while speaking of tort of misfeasance in public office, says as under:

A public authority or person holding a public office may be liable for the tort of misfeasance in public office where:

(1) there is an exercise or non-exercise of public power, whether common law, statutory or from some other source;

(2) which is either (a) affected by malice towards the Plaintiff or (b) the decision maker knows is unlawful; and

(3) the Plaintiff is in consequence deprived of a benefit or suffers other loss.

De Smith further says as under:

A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Where misfeasance is alleged against a decision-making body, it is sufficient to show that a majority of its members present had made the decision with the object of damaging the Plaintiff. Often there may be ho direct evidence of the existence of malice, and in these circumstances the Court may make adverse inferences, e.g. from the fact that a decision was unreasonable, that it could only be explained by the presence of such a motive. A Court will not entertain allegation of bad faith or malice made against the repository of a power unless it has been expressly pleaded and properly particularised.

Reference may also be made to the decision of the High Court of Australia in Northern Territory v. Mengel ( (1995) 69 Aust LJR 527) in which it was observed as under:

A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortuous liability for an act or omission which is done or made invalid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss or even an intended loss but, if the exercise of the power is valid, the other's loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires.

With regard to the MENTAL ELEMENT, the High Court of Australia stated as under:

The further requirement relates to the state of mind of the public officer when the relevant act is done or the omission is made. An early case is Ashby v. White ( (1703) 2 Ld Raym 938) in which Ashby complained that the constables of the borough in which an election was held had refused to permit him to vote fraudulently and maliciously intending to damnify him''. Lord Holt, C.J., whose judgment ultimately prevailed in the House of Lords, held that malice was essential to the action Malice has been understood to mean an intention to injure. In this context, the "injury" intended must be something which the Plaintiff would not or might not have suffered if the power available to the public officer had been validly exercised. (It is in that sense that I use the term "injury" hereafter). In more recent times, the scope of the tort has not been limited to cases in which a public officer has acted maliciously. It has now been accepted that it a public officer engages in conduct in purported exercise of a power but with actual knowledge that there is no power to engage in that conduct, the conduct may amount to an abuse of office.

The High Court further observed as under

I respectfully agree that the mental element is satisfied either my malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury. In my opinion, there is no additional element which requires the identification of the Plaintiff as a member of a class to whom the public officer owes a particular duty though the position of the Plaintiff may be relevant to the validity of the public officer's conduct. For example, the officer's administrative act may be invalid because he or she did not treat the Plaintiff with procedural fairness. It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office....

The above passages quoted with approval by the Supreme Court were only for tortuous liability and for criminal liability and criminal misconduct, the proof required is much more stronger. The observations of the Australian High Court show that what is required for prosecution is more material. It could, therefore, be seen that it is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. In this case, in the background of the evidence of P.W. 40 that no illegal consideration passed between the parties, it cannot be said that A2 passed the order, Ex.P-53, with a corrupt motive.

Robert H. Jackson, Justice of the U.S. Supreme Court, Chief Counsel of the U.S., at the Nuremberg War Crimes Trials, in his speech on 13.04.1945, stated that""... if you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to Courts that are merely organised to convict"". He further stated in his speech that, ""... judges will have to inquire into the evidence and reach an independent decision that is the reason there must be trials, not political executions"". The above passages are relevant to the facts of this case.

The contention of the learned S.P.P. that the Minister has made a note which is contrary to all the earlier objections and therefore, A1 and A2 are liable for misconduct, cannot be accepted, in view of my earlier discussion. The further contention of the learned S.P.P. is that the file relating to the hotel went to the office of A2 on 25.08.1993 and was pending with him till 05.05.1994, on which date, A2 made the note, Ex.P-53, and that A1 also approved it on the same day. According to him, the speed in which the file went to the C.M.'s office and the conduct of A1 in approving the file on the same day, after being apprised of the objections made at various levels, would be an additional circumstance against A1.

The stand taken by the learned S.P.P. against A1 and A2 is contradictory. He finds fault with A2 for keeping the file for a long time without passing orders and therefore, according to him, A2 is guilty of misconduct and at the same breath, he finds fault with A1 for signing the file on the same day to say that A1 is also guilty of misconduct. The fact remains that the file, which was signed by A2 and A1 on 05.05.1994, was received at the department only on 12.05.1994, as could be seen from the evidence of P.W.13 and the entries made in Ex.P-49. The evidence also shows that the transfer proposal mooted by P.W. 30 on 06.05.1994, was approved by A1 on the same day and if a Minister is found quick in disposing of a file, he/she cannot be found fault with to hold that criminal misconduct is made out. If P.W. 15 found that the file contained factual errors, on which A2 and Signed, then he should have recirculated the file as per Clause 8(2) of the Secretariat Instructions. P.W. 15 admittedly did not do so and P.W. 17 actually carried out the job of issuance of the G.O. without recirculating the file, though according to the prosecution, he knew that Ex.P-68, the additional dissenting note, was put up by P.W. 15. P.W. 17 being a Joint Secretary is also bound by Clause 8(2) of the Secretariat Instructions, since according to the definition of "Secretary" as found in Rule 2(c) of the Tamil Nadu Government Business Rules, an Additional Secretary, a Joint Secretary and a Deputy Secretary is also a Secretary to the Government of the State.

In Bachhittar Singh Vs. The State of Punjab, the Supreme Court had an occasion to deal with the sanctity of the notings in the file and the effect of such notings. The facts in the above case are as follows:

The Appellant before the Supreme Court was appointed as a qanungo in the former State of Pepsu in the year 1950 and was appointed as Assistant Consolidation Officer in December, 1953. Certain complaints were received regarding tampering with official records and he was suspended pending enquiry against him by the Revenue Secretary of Pepsu Government. As a result of the enquiry, the Revenue Secretary dismissed the Appellant by an order dated 30.08.1956, on the ground that the Appellant was not above board and was not fit to be retained in service. The Appellant preferred an appeal before the State Government and submitted an advance copy of his appeal to the Revenue Minister of Pepsu, who called for the records of the case immediately. The Minister, who perused the records, wrote on the file that the charges against Appellant were serious and they were proved. He further observed that it was necessary to stop the evil with a strong hand. However, the Minister expressed an opinion that as the Appellant was a refugee and had a large family to support, his dismissal would be too hard and instead of dismissing him outright, he should be reverted to his original post of qanungo and warned that if he does not behave properly in future, he will be dealt with severely. On the next day, the State of Pepsu merged in the State of Punjab. After the merger of State of Pepsu with the State of Punjab, the file was put up to the Revenue Minister of Punjab. The Revenue Minister remarked on the file, "Serious charges have been proved by the Revenue Secretary and Shri Bachittar Singh (the Appellant) was dismissed. I would like the Secretary I/c to discuss the case personally on 5th December, 1956." On ""April 2.8.1957, the Minister noted on the file, "C.M. may kindly advise". With this remark, the file went up before the Chief Minister, Punjab, who, on April 16/18, 1957, passed an order, the concluding portion of which reads thus:

Having regard to the gravity of the charges proved against this official, I am definitely of the opinion that his dismissal from service is a correct punishment and no leniency should be shown to him merely on the ground of his being a displaced person or having a large family to support. In the circumstances, the order of dismissal should stand.

The order was communicated to the Appellant on May 1, 1957. He preferred a writ petition under Article 226 of the Constitution of India and the High Court of Punjab dismissed the same. The matter went to the Supreme Court and the Constitution Bench of the Supreme Court, while considering the question, held as follows:

The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him, the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.

The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities.

The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Minister is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage, a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the "order" of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection, we may quote the following from the judgment of this Court in the The State of Punjab Vs. Sodhi Sukhdev Singh,

Mr. Gopal Singh attempted to argue that before the final order was passed the council of ministers had decided to accept the Respondent's representation and to reinstate him and that, according to him, the Respondent seeks to prove by calling the two original orders. We are unable to understand this argument Even if the council of ministers had provisionally decided to reinstate the Respondent that would not prevent the council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the Respondent.

Thus, it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication, the order cannot be regarded as anything more than provisional in character.

The above law laid down by the Supreme Court shows that no order of Minister becomes final on the day he passes it and until the order is communicated to the person affected by it, it is open to the Council of Ministers to consider the matter over and over again and in the present case, the order of A2, therefore, can only be considered as provisional in character. If P.Ws. 15 and 17 found that the order of the Minister (A2) is bad in law and was passed on certain factual errors, they should have recirculated the file, which was not done in this case. In fact, Clause 7 of the Secretariat Instructions states that where a Minister passes orders contrary to the orders suggested in the noting, further circulation shall invariably be interrupted and the file sent to the Chief Secretary or the Secretary of the department concerned, as the case may be. It is nobody's case that the file was sent to the Chief Secretary by P.W. 15 or by P.W. 17. The contention of the learned S.P.P. that the Minister ought to have sent the file to the Chief Secretary is without any substance in view of Clause 7 of the Secretariat Instructions as it is the duty of the Secretary of the department concerned to circulate the said file and not that of the Minister.

The learned S.P.P., relying on the statement of A1 given to the police officer during investigation and recorded u/s 161 Code of Criminal Procedure by the police officer, which is to be read as part and parcel of the statement of Al recorded u/s 313 Code of Criminal Procedure, as desired by her, contends that in view of Article 48A of the Constitution of India, A1 has a duty to prevent illegal large scale violations, as A2 has put up a note against the order of the Secretary and it is against the policy of the Government and against the recommendation of the Government, and that therefore, A1 is guilty of the offence. The said contention cannot be accepted, since even according to the alleged dissenting note, Ex.P- 68, there were several inaccuracies on facts in the note file and the said inaccuracies were not brought to the notice of A1. P.W. 15 has also stated in his evidence that when he met A2 on 7.5.1994, he requested A2 to call him for a discussion with A1 on the subject. The statement alleged to have been made by P.W. 15 in the dissenting note, Ex.P-68, and his evidence before the Court, therefore, show that A1 was not aware of the factual inaccuracies found in the note file and under the circumstances, the prosecution cannot find fault with her for affixing her signature in the file, Ex.P-48. P.W. 17 could have brought to the notice of A1 and A3 about the errors in the note of A2 and the alleged dissenting note, Ex.P-68, prepared by P.W. 15; but, he (P.W. 17) also did not do so.

The charge against A1 to A3 is that they committed criminal misconduct by granting approval to the revised plan of the hotel against the rules and norms governing the construction of the building and by corrupt or illegal means and by abusing the position as civil servants, obtained for the hotel pecuniary advantage or valuable thing without any public interest by issuing two G.Os., Exs.P-56 and P-66. It is to be noted that the prosecution did not produce any material to show that A2 received any illegal gratification and there is also no evidence that any gratification was paid to A2. At the risk of repetition, it is to be remembered at this stage that P.W. 40 has, in his evidence, stated that even though he was specifically asked to investigate and to find out whether any illegal gratification was made, his investigation did not reveal any such gratification passing between the parties. On the discussion made above, I am unable to hold that A2 passed the said order, Ex.P-53, in the note file, Ex.P-48, with corrupt motive.

Ex.P-92 is the judgment of a Division Bench Reported in 1995 Writ L.R. 737: 1995-2-L.W. 124 S.N. of this Court and it is dated

10.4.1995. W.P. No. 13231 of 1992 was filed challenging the construction of additional floors over and above two floors in the buildings of the

hotel. Thereafter, Ex.P-56, G.O. Ms. No. 126, was issued sanctioning the additional five floors and the said G.O. was challenged in W.P. No. 13104 of 1994. W.P. No. 20375 of 1994 was filed challenging G.O. Ms. No. 317. A common judgment in all the above writ petitions was passed under Ex.P-92. The Division Bench, on considering the contentions of the three writ petitions, held that though the appeal preferred by the hotel against the order of the Township Committee rejecting the revised plan, it was treated as an application for permission under the provisions of Chapter X-A of the Tamil Nadu District Municipalities Act, on the introduction of the said Chapter by Tamil Nadu Act 52 of 1994. When the file went to the Minister, he treated it as an application for exemption u/s 217Q of the said Act, since the order of the Minister commences with an observation that the hotel seeks necessary exemption of the rules for use of basement area, below the permitted building. The Division Bench, therefore, held that the observation proves total non-application of mind by the concerned authority to the records made available to him and if he had taken a look at the plans, he would have realised that the proposed building will be within a length of 40 metres and that it is evident from the Minister's order that he had neither applied his mind to the materials on record nor taken into consideration the relevant factors. The Division Bench further held that non-application of mind is also evident from the facts placed before it. The Division Bench found that A1 simply signed the file without entering any minute of remark and there is nothing to show that there was application of mind to the matters on record by A1 and therefore, there is total lack of application of mind on the part of the Government. The Division Bench ultimately held that the allegations regarding factual malafides are hardly sufficient to be considered by the Court and that the G.O., Ex.P-56, is, without doubt, illegal and invalid as it is arbitrary and based on irrelevant matters. The Division Bench, therefore, held that the materials are not sufficient to warrant an enquiry into the factual malafides and the G.O. is vitiated by legal malafides inasmuch as it is a result of total failure to consider relevant matters and consideration of irrelevant matters. The hotel as well as the Government filed appeals before the Supreme Court. The Government filed an appeal before the Supreme Court to expunge the remarks of the Division of this Court, finding non-application of mind on the part of A1 and A2 and that the actions of A1 and A2 amount to legal malafides.

The non-application of mind found by the Division Bench of this Court and approved by the Supreme Court Reported in 1995 Writ L.R. 764 (S.C.): 1995-2-L.W. 129 S.N. is a far cry from mens rea to say that the accused had acted deliberately with a view to confer pecuniary advantage or a valuable thing on A4 and A5. There cannot be any quarrel on the contention of the learned S.P.P. that non-application of mind in this case cannot be equated with the absence of mens rea and that mens rea is the guilty mind which is necessary in a criminal case whereas non-application of mind is the ground in the writ petition to quash the order. The order of A2 was struck out by the Division Bench not on the ground of factual malafides, but only on the ground of legal malafides. The contention of the learned S.P.P. That the Division Bench did not given a finding that there were no factual malafides and therefore, the accused are to be convicted on factual malafides, is to be stated only to be rejected, since there is no evidence to find A1 and A2 guilty of factual malafides.

The prosecution, by marking Ex.P-92, the judgment of the Division Bench, did not establish that there were factual malafides on the part of A1 and A2. Every Court must act independently except where it is bound by a binding judgment. Contradictory findings of the Courts of different jurisdictions are not barred by law and the settled law is that the findings of a civil or a writ Court do not bind a criminal Court and vice versa. In fact, the Division Bench also did not find any factual malafides on the part of A1 and A2. The question is whether A2 passed the order and whether the said order was on account of factual malafides. The Division Bench gave a finding that there were no factual malafides and the evidence on record in this case also does not show that A2 committed the offence.

I will now take up the case against A3. According to the prosecution, A3 was deliberately brought as Secretary, M.A. and W.S. Department, so that he will toe the line of A1 and A2. A3 was the Secretary of the said Department from 10.5.1994 till October, 1995. On 12.5.1994, the note file, Ex.P-48, with the note of A2, Ex.P-53, reached the hands of A3. On the same day, A3 made an endorsement, Ex.P-55. On 13.5.1994, P.W.17 made an endorsement, Ex.P-73, to the effect to issue orders. On 13.5.1994, a draft G.O. Was issued. On 4.11.1994, a meeting was convened at the residence of the Advocate General attended by A3, P.W. 31, Additional Secretary, Law Department, and Under Secretary, M.A. and W.S. Department. On 4.11.1994 itself, Ex.P-58, a note, was prepared by the Law Department and on the same day, Ex.P-102, a note of A3 suggesting retrospective for the amendments, was prepared. The draft Bill to amend Section 217Q was prepared and approved by the Advocate General on 5.11.1994. On 5.11.1994, A3 affixed his signature, Ex.P-61, in Ex.P-52 and on the same day, the note of circulation, Ex.P- 52, was sent to A2 and he affixed his signature, Ex.P-59, on the same day. On 8.11.1994, A1 affixed her signature, Ex.P-60, in Ex.P-52 giving approval to the amendment. On 9.11.1994, the Bill for amending the Act was introduced in the Assembly and on 10.11.1994, it was taken up for consideration and passed as Act 52 of 1994 by voice vote. Ex.P-64 is the original Act. Ex.P-65 is the amended Act. On 2.12.1994, P.W. 23, the Additional Government Pleader, sent a letter, Ex.P-50, to the Secretary to Government, M.A. and W.S. Department. On 5.12.1994, an office note, Ex.P-51, was prepared by M.A. and W.S. Department, on the basis of the letter, Ex.P-50, written by P.W.23. On 6.12.1994, Ex.P-66, G.O. Ms. No. 317, was issued. The evidence of P.W. 15 shows that he prepared the additional dissenting note, Ex.P-68, since he felt that if the orders of A1 and A2 are implemented, that may amount to gross violation of relevant rules and it may go against the Government policy of protecting the fragile environment of the hill area. If that was the intention of P.W. 15, he would have certainly mentioned to A3 about Ex.P-68.

P.W. 15''s evidence does not disclose that he told A3 about his dissenting note, Ex.P-68, though he has stated that he briefed A3 on the file. He did not even whisper a word about his making a dissenting note to A3. If P.W. 15 had the intention to dissent with A2 and therefore, wanted to make an additional note, then he could have and should have made such a note even in the note file, Ex.P-48, as the last page in the file was blank on 6.5.1994. I have already considered the explanation given by P.W. 15 for putting the additional note in loose sheets and therefore, I find it unnecessary to repeat the same, except to say that the explanation is unbelievable and artificial. P.W. 15 has admitted in cross-examination that the file does not indicate that he prepared an additional note. He has also stated in his evidence that he is convinced that the Minister will not follow his advice. If so, he would have made the note in the file, instead of claiming that he prepared a separate note. The more curious and suspicious act is his prevaricating stance by saying that the xerox copy of the additional note retained by him, was misplaced and was not traceable and by also saying that he destroyed it. The officer, who claims that he had taken two xerox copies, probably suspecting a foul play, could not have misplaced his copy in a careless fashion and certainly could not have destroyed it, as stated by him in cross-examination. The note prepared by A3, Ex.P- 102, suggesting retrospective effect to the amendment of the Act, was not made by him independently, but only on the advice of the Advocate General on 4.11.1994 at the meeting convened by the Advocate General. The evidence shows that giving retrospective effect to the amended Act is not to save the order of A2 alone, but also to give relief to other persons whose appeal were pending with the Government during the relevant period. P.W. 31, Additional Secretary, Law Department, has also admitted in his evidence that the procedure normally followed for bringing an amendment to any Act, was followed in this matter also.

P.W. 30 is the Chief Secretary and chaired the AAA Committee meeting on 29.7.1993 and the minutes of the said meeting is Ex.P-29. Ex.P- 26 shows that the AAA Committee has decided to reject the appeal of the hotel. P.W. 30 having chaired the AAA Committee meeting on 29.7.1993 and having been a party to the decision of the AAA Committee to reject the appeal of the hotel, could not have been a willing tool for the proposal transferring P.W. 15 without raising any objection with a view to bring in A3, who, according to the prosecution, was brought to toe the line of A2. It is not the case of the prosecution that P.W. 30, the Chief Secretary, acted with a malafide intention when he proposed the transfer of P.W. 15. Therefore, A3 cannot be found fault with for allowing the advice given by the Advocate General and putting his note to P.W.

17 to issue the G.O.

The prosecution examined a retired Chief Engineer of Central Public Works Department as P.W. 39. In his evidence, P.W. 39 has claimed that after his retirement, he was appointed as Technical Director by the Government of Tamil Nadu for five years and that A3 is his friend. He has further claimed that A3 is a permanent invitee to the meetings. According to P.W. 39, he met A3 on a day in his office at the Secretariat. He has deposed that A3 handed over a plan relating to the construction of a hotel in Kodaikanal and asked his opinion and that he told A3 that sanction cannot be given for such a construction. He has also stated that A3 told him that the Minister is interested and is directing him to pass an order granting permission to the hotel to put up a construction. According to him, while they were discussing, a North Indian was present and he was introduced by A3, as the Executive Director of the hotel, thereby meaning A4 in the case. P.W. 39 has also stated in his evidence that A4 told him in Hindi that A2 has decided to grant permission for putting up the construction. When P.W. 39 was cross-examined, he admitted that he met A3, after A3 returned from his training from Pune. This evidence of P.W. 39 stands completely destroyed by the evidence of D.W. 1. Ex.D-1 was marked through D.W. 1. A perusal of the evidence of D.W. 1 and Ex.D-1 shows that the training at Pune was conducted between 19.12.1994 and 23.12.1994 and that A3 attended this training during that period. If so, A3 could not have asked the opinion of P.W. 39 after 23.12.1994 since the orders were already issued by A3 on 12.5.1994. The evidence of P.W.39, therefore, cannot be accepted as true. In fact, the learned S.P.P. in the course of his arguments, conceded that he is not relying on the evidence of P.W. 39. P.W. 40 has also admitted, as stated earlier, that no illegal gratification passed between the parties and as the prosecution also did not succeed in establishing that A3 was deliberately brought in to help A2, the entire theory of conspiracy has to fail and accordingly fails.

The learned trail Judge has committed an error in holding that A3 was aware of the additional note, Ex.P-68, made by P.W. 15, as there is no evidence to that effect. The learned trial Judge held that A3 did not return the file to A2 as there were factual errors, since he was willing to execute the orders of A2. A3 cannot be found fault with for not returning the file to A2 as per Clause 8(2) of the Secretariat Instructions, as there is no material to show that A3 noticed factual errors in the Minister's note; but, on the contrary, it was P.W. 15, who, in his alleged note, Ex.P-68, stated that factual errors were found in the note and they were to be brought to the notice of A1 and A2. If so, P.W. 15 ought to have circulated the file and A3 cannot be blamed for what P.W. 15 did not do. The findings of the learned trial Judge that Ex.P-66, G.O. Ms. No. 317 dated 6.12.1994 and the notification u/s 113 of the Tamil Nadu Country Planning Act were issued without consulting the Advocate General and the Law Department, are also not correct, since Ex.P-50, the letter of the Additional Government Pleader, P.W.23, and Ex.P-51, the note of P.W. 13, Section Officer, M.A. and W.S. Department, show that the said G.O. was issued on the advice of the Advocate General. On the discussion made above, there is no material against A3 to find him guilty of the offences.

Now, I will consider the case of A4, who was the Executive Director of the hotel between January 1991 and February 1992. The lands of the hotel comprise in survey numbers which are mentioned in Ex.P-70, the Master Plan, and they are categorised as the lands which are to be used for commercial purposes. The dates and the sequence of events show that the revised plan was rejected on 7.12.1992 and A4 preferred an appeal, Ex.P-6. The said ap peal was addressed to the Secretary to the Government, Housing and Urban Development Department, though the Executive Officer of Kodaikanal Township and to the Director of Town and Country Planning. ""The filing of an appeal by itself cannot be taken as a ground for existence of a criminal conspiracy. The appeal was filed before the Secretary, Housing and Urban Development Department, since it deals with the matters relating to the Tamil Nadu Town and Country Planning Act, 1971 and it does not deal with the matters which fall within the Tamil Nadu District Municipalities Act. As the appeal filed by A4 was not forwarded to the Government by the Township even after the lapse of four months, A4 wrote Ex.P-39 dated 24.6.1992, to the Executive Officer of the Township requesting him to forward the appeal to the Government. A copy each of the letter, Ex.P-39, was also marked to the Director of Town and Country Planning and to the Secretary, Housing and Urban Development Department. P.W. 10 has, in his evidence, stated that on the basis of the copy of the letter, Ex.P-39, a file was opened by him in the Town and Country Planning Department. On 10.9.1992, A4 wrote a letter, Ex.P-10, to the Township since, despite the earlier letter, Ex.P-39, the Township did not forward the appeal to the Government. On 15.9.1992, the Township communicated to the Secretary, Housing and Urban Development Department, through the Director of Town and Country Planning, by stating that the Township has resolved not to recommend the plan on the ground that it is likely to lead to re-classification of the zone. This statement is not correct since the hotel was in a commercial zone. The learned trial Judge was also not justified in holding that A2 did not accept the recommendation to reject, as the recommendation to reject is on an erroneous ground. Ex.P-17 is dated 1.10.1992 and it is the letter of Director of Town and Country Planning addressed to the Secretary, M.A and W.S. Department. In the said letter, it is stated that there are two violations and they are, (1) violation of floor space index, and (2) space left on the eastern side of the building is 1.88 meters though a space of 3 meters is required to be left out. The materials show that on the other sides, more space than required under the Rules have been left out. The Director of Town and Country Planning concluded by stating that exemption can be refused, though Ex.P-6 was filed as an appeal seeking approval of the plan and not for exemption. On 9.12.1992, Chapter X-A was introduced in the Tamil Nadu District Municipalities Act and Ex.P-70, the Master Plan, was gazetted on 6.3.1993. The Special Building Rules framed under Chapter X-A of the said Act, were notified on 3.6.1993, and thereafter, in terms of the Rules, tine AAA Committee was constituted.

The AAA Committee held its meeting on 29.7.1993 and the minutes of the meeting is Ex.P-26. In paragraph No. 4 of the said minutes, it is found noted that it being the first meeting of the AAA Committee, the particulars are not adequate for any decision to be taken and P.W. 30 told the members of the AAA Committee that the applications received were only under the old rules and therefore, there is inadequacy of information.

Item No. 27 in the said minutes, shows that the decision of the AAA Committee to reject the appeal of A4 was on the only ground that there is large scale violation of building rules. What was noted as a violation was only not leaving enough space on the eastern side of the building. P.W. 11 was the Director of Town and Country Planning and a member of the AAA Committee and as per the Rules, he was the convener of the AAA Committee meetings. He has admitted, in cross-examination that the Committee did not go through each and every page of the file and that the appeal letter of A4 was not even placed before the Committee. In the absence of the appeal letter of A4 and without inspecting the hotel and without adequate materials before it as required under the Special Building Rules, which came into force on 3.6.1993, the AAA Committee even in its first meeting, rejected the appeal and accordingly, recommended to the Government for rejection. This shows that the AAA Committee did not apply its mind to the issue before it and rejected the appeal. Ex.P-47 is the letter written by P.W. 11 to P.W.15 and it is dated 11.8.1993, intimating the Government the decision of the AAA Committee to recommend the rejection of A4""s request and the letter shows that the file containing 40 pages was enclosed along with the letter. It is for the first time, the file of A4''s appeal is seen referred and P.W. 15, in the note file, Ex.P-48, simply endorsed the recommendation of the AAA Committee by noting that in view of gross violations, the request may be rejected and this was on 24.8.1993. The file was, thereafter, seen by the Minister on 5.5.1994. A4 had no role to play in the offence of conspiracy; but, he had only appealed against the order of the Township before the Government to grant permission for putting up a construction and it was rejected at various stages without even considering the relevant factors and the file. Between 6.4.1991, the date on which A4 made his first application for constructing a building, and 25.8.1993, the date on which the Minister's office received the file, and between 25.8.1993 and 13.5.1994, the date on which Ex.P-66, G.O. Ms. No. 126, was issued, and between 13.05.1994 and 06.12.1994, the date on which Ex.P-66, G.O. Ms. No. 317 was issued, there is no evidence to show that A4 played any role in furthering conspiracy. Regarding the first period, other than the application, Ex.P-2, the revised plan, Ex.P-5, and the appeal, Ex.P-6, and the two reminder letters to the Township, Exs.P-39 find P-10, requesting the Township to forward his appeal to the Government, there is no other material or circumstances against A4 to show that he is a member of conspiracy. The above acts are not illegal.

The prosecution relies on Ex. P-107, the letter written by A4 to Indian Bank, Kodaikanal, and Exs.P-110 to P-112, the letters written by A5 to the above bank, and Ex.P-113, the affidavit filed before the bank by A4, for obtaining loan. They only go to show the efforts taken by A4 and A.5 in getting the loan from the bank. Ex.P-109 is the letter from the Indian Bank, Zonal Office, Trichy, to Indian Bank, Kodaikanal Branch, stipulating that the loan amount of Rs. 75 lakhs will be sanctioned only if the hotel gets necessary approval from the authorities for the construction of 2 + 5 floors. The reply of the hotel is Ex.P-110 and it is dated 2.7.1993. In Ex.P-110. A5 has stated that the hotel will get the approval of the Government. The file reached the Minister only on 25.8.1993 and therefore, on 2.7.1993 when Ex.P-110 was written, all the endorsements in the file were only to the effect that it has to be rejected. A2 touched the file on 5.5.1994 and from the above fact, it could only be inferred that it is only a blatant attempt of a borrower for borrowing a loan by making incorrect statements. In Ex.P-111, A5 has claimed that the Township authorities and the Collector inspected the building and did not raise any objection and that the Township is with the hotel. This is also not a correct statement of fact and had been given only with a view to get the loan from the bank. Ex.P-7 dated 22.4.1992 is the notice issued by the Executive Officer of the Township directing the demolition of the building constructed without permission. This shows that the Township was not with the hotel on the date (3.7.1993) when Ex.P-111 was written making a claim that the Township was with the hotel, as it is a false statement made by A5 with a view to get the loan from the bank. In fact on 22.4.1992, the Township authorities have ordered for demolition. A perusal of Ex.P-25 also shows that the Collector even on 16.9.1992 directed that the Court order should be implemented strictly, and therefore, the claim of A5 in writing Ex.P-110 can only be treated as the statement made by a person for getting a loan from the bank. The said Exs.P-110 to P-112 dated 2.7.1993, 3.7.1993 and 4.7.1993 respectively written by A5 to the bank are only letters and a perusal of them shows that tall claims have been made by the borrower to the bank even before the AAA Committee took up the matter and that the said letters contained inaccurate statements.

Ex.P-113 is an affidavit dated 17.7.1993 filed by A4 with the bank, wherein he has only stated that he will submit the approval for the revised plan from the competent authority and that he will complete the construction within three months of the disbursement of the loan and nowhere, he has stated that he will get the revised plan approved within three months, as observed by the learned trial Judge. The contention of the learned S.P.P. that the letters written by A5, Exs.p-110 to P-112, to the bank, show the confidence of the hotel in getting the loan approved by the Government, is not supported by any material. A4 has stated in the affidavit that he will complete the construction within three months from the date of disbursement of the loan and not that he will get the plan approved within three months. This affidavit, Ex.P-113, of A4 can, by no stretch of imagination, be considered as a circumstance to hold that A4 is guilty of conspiracy, especially when the file was lying in the Department of M.A and W.S. On the relevant dates. In fact, on 24.8.1993, P.W.15 made an endorsement stating that the request of A4 may be rejected. Between 24.8.1993 and 13.5.1994 on which date, Ex.P-56 was issued there is not even a whisper about the part played by A4, by any of the witnesses.

To speak about the part played by A4 between 13.5.1994 and 6.12.1994 on which date, Ex.P-66 was issued, the only witness put against A4 is P.W. 39, whose evidence I have already considered and rejected and the learned S.P.P. also conceded that he is not relying on the evidence of P.W. 39. P.W. 40 has admitted that he did not investigate and peruse the visitors'' book maintained at the Secretariat to find out whether A4 visited A3 at the Secretariat and in the absence of any materials, it is difficult to hold that A4 participated in the conspiracy....

I will now consider whether the prosecution has succeeded in establishing that the accused have committed an offence u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. I have already stated that P.W. 40 had given evidence to the effect that his investigation did not reveal that any illegal consideration passed between the parties.

Section 5(1)(d) of the Prevention of Corruption Act, 1947, reads as follows:

A public servant is said to commit the offence of criminal misconduct in the discharge of his duty, if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

Section 13(1)(d) of the Prevention of Corruption Act, 1988, reads as follows:

A public servant is said to commit the offence of criminal misconduct, if he, -

i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

If the word "otherwise" found in Section 5(1)(d) of the old Act is taken out, it is clear that Section 5(1)(d) of the old Act is a composite of Section 13(1)(d) of the present Act and therefore, in Section 13(1)(d) of the present Act, the word "otherwise" has been removed and Sub-section (iii) has been added in Section 13(1)(d) of the present Act and any act u/s 13(1)(d) of the present Act must be dishonest and it takes its colour from Sub-sections (i) and (ii) of Section 13(1)(d) of the present Act, which means there must be an element of dishonesty in the act and in the absence of dishonesty, Section 13(1)(d)(iii) cannot be made out.

The Supreme Court had an occasion in M. Narayanan Nambiar v. State of Kerala ( AIR 1963 SC 116 ), to consider Section 5(1)(d) of the old Act. It was contended before the Supreme Court that Clause (d) being a penal provision, shall be strictly construed; and that if so construed, it would only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and does not cover a case of a wrongful loss caused to the Government by abuse of his power. The Supreme Court held as follows:

First taking the phraseology used in the clause, the case of a public servant causing wrongful loss to the Government by benefiting a third party squarely falls within it. Let us look at the clause ""by otherwise abusing the position of a public servant,"" for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position.

The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse, i.e. Using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word "otherwise" has wide connotation and if no limitation is placed on it, the words, "corrupt", "illegal", and "otherwise" mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So, some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say, something savoring of dishonest act on his part. The contention of the learned Counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But, in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word "otherwise" with the words "corrupt or illegal means", and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word ''obtains'' be sought in aid to limit the express words of the section.

The above judgment of the Apex Court was quoted with approval by the same Court in Major S.K. KALE Vs. State of Maharashtra,

The findings of the Division Bench of this Court in the writ petitions that there was non-application of mind on the part of A1 and A2, were given after perusing the original file and such findings were approved by the Supreme Court and the said findings do not establish dishonesty. Mere passing of an order, which may be even against public interest, cannot be held culpable, as unless dishonesty is seen in the action of a public servant in getting a valuable thing to another person without any public interest, then every order of a public servant, which is found to be made without application of mind and therefore, not correct, will lead to a prosecution. This could have never been the intention of the legislature or otherwise, every public servant, who passes an incorrect order without any public interest, can be hauled before a criminal Court and it will lead to disastrous consequences.

The learned S.P.P. relies on notes on clauses to Section 13 of the Prevention of Corruption Act, 1988, which are as follows:

This section deals with criminal misconduct by a public servant and corresponds to existing Sub-sections (1) and (2) of Section 5 of the Prevention of Corruption Act, 1947. Section 5(1)(d) of the Prevention of Corruption Act, 1947 relates to misconduct by a public servant by corrupt or illegal means or otherwise and obtaining pecuniary advantage for himself or for others. The effectiveness of this provision has been somewhat blunted by judicial pronouncements. In order to make the original intention of the Legislature more clear, Section 13(1)(d) has been split into three parts.

Further, a definition of the expression "known sources of income" has been added to remove any ambiguity.

According to the learned S.P.P., dishonest intention is not the mention state required for Section 13(1)(d)(ii) and (iii) and at the same breath, he submits that the prosecution is not suggesting that no mens rea is required to the above two offences. According to the learned S.P.P., mens rea differs from offence to offence and it may be either "voluntarily", "dishonestly", "knowingly" or "having reason to believe". He also submits that dishonestly"" has been excluded by the statute itself by necessary implication, for the statute, which made "dishonestly" to be in mental state in Section 13(1)(c), deliberately omitted to use "dishonestly" in Section 13(1)(d) of the said Act and therefore, the mental state applicable to the offence is "knowingly". This argument is against the findings of the Division Bench of this Court. The Division Bench gave its findings that there was no factual mala fides and therefore, the learned S.P.P. cannot contend that the accused knowingly committed the act. If the argument of the learned S.P.P. that "dishonestly" has been excluded in Clause (iii) of Section 13(1)(d), then it is to be seen that the said word is also omitted in Clause (i) and (ii) of Section 13(1)(d) and it will lead only to an absurd situation where Section 13(1)(d)(i) and (ii) also do not make out offences. Notes on clauses to Section 13 of the said Act, are not objects and reasons for enacting the Prevention of Corruption Act, 1988, and the objects and reasons are to make the then existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions. Offences u/s 161 to 165A IPC have also been incorporated in the Prevention of Corruption Act, 1988, with an enhanced punishment, as it was thought not necessary to retain those Sections in the Penal Code.

In Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, the Supreme Court stated that it must be remembered that the statement of objects and reasons seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But, those objects and reasons may not correspond to the objective which the majority of members had in view when they passed it into law and the Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted upon by the members. Therefore, the Supreme Court was of the view that the Statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of a statute.

It is also to be remembered that the notes on clauses to Section 13 of the Act, state that in order to make the original intention of the Legislature more clear, Section 13(1)(d) has been split into three parts. This statement in the notes on clauses to Section 13 of the said Act, is without any basis, since it is to be remembered that the Act of 1988 is a new Act, which has repealed the Prevention of Corruption Act, 1947.

In Hindustan Steel Ltd. Vs. State of Orissa, the Supreme Court, while considering Sections 9(1) and 25(1)(a) of the Orissa Sales Tax Act dealing with penalty to be imposed for failure to register as a dealer, held that the liability to pay penalty does not arise merely upon proof of default in registering as a dealer and an order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. So, even for quashing penalty proceedings, the Supreme Court was of the view that dishonesty is required before penalty is imposed and hence, it cannot be said that dishonest is not required for a criminal offence. When the statute is clear, it is unsafe to rely on notes on clauses to say that dishonesty is not required. In the absence of any materials, which are extraneous for putting up a note and affixing the signature, neither A1 nor A2 can be held guilty. There is no evidence that consideration passed between the parties and in the absence of any evidence that there was extraneous interference and in the absence of any materials that A1 to A3 received illegal gratification, the accused cannot be held guilty for performing their official functions. Men are fallible and therefore, if the order is contrary to the rules and hence, incorrect, no prosecution can be launched. The contention of the prosecution that mere exercise of power to confer pecuniary advantage to another person even without any dishonesty, can attract the penal provisions of the Prevention of Corruption Act, cannot be accepted, since if such a contention is accepted, any order passed by a public servant, which confers pecuniary advantage, can be prosecuted under the said Act. Section 13(1)(d) of the Prevention of Corruption Act, 1988 relates to the offence of criminal misconduct, whether it is under Clause (i) or (ii) or (iii) and therefore, the offence recognised under all the three clauses is only an offence of criminal misconduct. In my view, all clauses in Section 13(1)(d) of the Act require mens rea and it is an essential ingredient for the offence. The judgment of the Supreme Court in M.

Narayanan Nambiar v. State of Kerala (AIR 1963 SC 116), which was quoted with approval by the Apex Court in Major S.K. KALE Vs. State of Maharashtra, shows that in order to come within the mischief of the Section, the abuse of position must necessarily be dishonest on the part of the accused. If the words "corrupt, illegal means or abuse" are not read into Section 13(1)(d)(iii) of the said Act, innocent persons will be harassed in the course of performance of their official duties.

In Re Ralph George Carlton and Re The Naturalization Act, 1870 (1945 (1) All ER 559 ), while considering the meaning of the word "child" determined by context in section and by cross-heading preceding the section in the Naturalization Act, 1870, the Court quoted with approval the judgment of the Privy Council by Lord Collins in Toronto Corporation v. Toronto Railway that a heading is to be regarded as giving the key to the interpretation of the clauses ranged under it, unless the wording is inconsistent with such interpretation.

In Uttam Das Chela Sunder Das Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar, the Supreme Court held that the marginal notes or captions are, undoubtedly, part and parcel of legislative exercise and the language employed therein provides the key to the legislative intent and the words so employed are not mere surplusage. Similar view was taken by the Supreme Court in S. Raghbir Singh Gill v. S. Guarcharan Singh Tohra and Ors. ( 1980 Supp SCC 53 ), wherein it was held that it is legitimate and indeed proper to have recourse to heading and sub-heading given to a group of sections in an Act of Parliament to find guidance for the construction of the words in statute and coupled with this, one can advantageously refer to a known canon of construction that every section of a statute is to be construed with reference to the context and other sections of the Act, so as, as far as possible, to make a consistent enactment of the whole statute.

The judgments referred to above show that what is sought to be punished u/s 13(1)(d) of the Prevention of Corruption Act, 1988, is not mere misconduct but criminal misconduct and for criminal misconduct, the element of mens rea is essential and if there is no mens rea, the act does not by itself become punishable, except in certain cases, like Section 304A IPC as it provides punishment for rash and negligent act committed without mens rea.

I have already extracted Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, and in that, the words, ""without any public interest (emphasis supplied) are found. The words, "without any public interest" used in the said Section show that for the offence u/s 13(1)(d)(iii), the prosecution must establish that the interest shown for obtaining pecuniary advantage or valuable thing, was private interest and even if the act serves one public interest and if the said one public interest is against another public interest, a person cannot be prosecuted, since the Section states emphatically that the act shall be done without any public interest. The word "any" is therefore to be understood that there should be a zero public interest. The word "any" is defined in Judicial Dictionary of words and Phrases (Fifth Edition by John S. James) as a word which excludes limitation or qualification. Therefore, the word "any" used in Section 13(1)(d)(iii) is absolute. The trial Judge has also conceded in his judgment that tourism involves public interest, but went on to hold that it cannot override another public interest, i.e. Ecological system. Therefore, it is not a case where we can fit in the words "without any public interest". To make out an offence of criminal misconduct, two requirements are necessary and they are, (1) the absence of any public interest whatsoever, and (2) the knowledge of the accused that his act is without any public interest. The first requirement is the objective absence, as a fact, of any public interest and the second requirement flows from the legal maxim regarding mens

rea. If the accused acted bona fide without any public interest, believing that he is acting in the public interest, he is not guilty of the offence of criminal misconduct.

In R.V. Sussex Confirming Authority, Ex parte Tamplin $ Sons Brewery (Bringhton), Ltd. ( 1937 (4) All ER 106 ), the King's Bench Division had an occasion to consider a provision found in Licensing (Consolidation) Act, 1910. In the said case, the licensing justices confirmed the grant of a licence for the sale by retail of any intoxicating liquor which might be sold under a spirit retailer's (or publican's) licence for consumption either on or off the premises, subject to certain conditions, one of which was in the following terms: ""There shall be no sale on the premises to any person other than travellers who hold current tickets issued by Southdown Motor Services, Ltd.,"" who were the owners of the premises in respect of which the licence was granted. Objection was taken, on the ground that a condition could not be attached to a justices'' licence whereby the licensee was prohibited from serving intoxicating liquor to any but members of a limited class, and that, therefore, in imposing such a condition, the confirming authority was acting without jurisdiction. Du Parcq, J., speaking for the Bench, observed as follows:

There is only one restriction upon the right of the justices to impose a condition. It must be a condition which they think proper in the interests of the public. It is the function of the justices to decide whether the condition is proper in the interests of the public, and that is a function which we ought not to usurp even if we would. It is not for us to decide, or even to consider, whether, in all the circum stances, the condition which the justices thought fit to impose was in the interests of the public. Indeed, on the information at out disposal, there is here no ground for saying that it was not. I agree, however, with Mr. Maurice Healy, that, if the justices were to impose a condition which, in the view of this Court, no reasonable person could honestly say was in the interest of the public, it would be a condition which the justices had no right to impose. I think it is plainly impossible to say that that has occurred here. It is fallacious to say that a condition is not in the public interest, or may not be in the public interest, if it is the case that a great many of those persons who constitute the public are not directly affected by it; and it is equally fallacious to say that a condition cannot be in the public interest if a great many members of the public neither know nor care anything about it.

From the above judgment, two propositions emerge and they are, (1) It is within the power of the functionary to decide a matter whether the said matter involves public interest or not, and (2) no reasonable man shall view that act as an act done not in public interest. Therefore, when A2 granted permission taking into consideration the development of tourism, no reasonable man can say that it is not in the public interest. In this background, Ex.P-70, the Master Plan, has to be considered. Para 0.05 of the Master Plan states that a large number of tourists visit Kodaikanal and para 6.01 indicates that the development of kodaikanal with increased facilities to attract more tourists will not only help the local population but also earn valuable foreign exchange. Para 11 of Chapter VI of the Master Plan gives the details regarding tourists flow and the demand of bed strength. It shows that in the year 1984, the total arrival of tourists is 4,93,195 which includes domestic and foreign tourists. The total number of tourists, who stayed in the said year is 91,235. In 1984, only 375 beds were available thought the demand is any given day for the beds is 1,825.

The bed strength remained static till the year 1990 thought the demand for beds increased every year and in the year 1991, the beds available were 1,200 as against the demand of 2,120 beds. Though the demand for beds started increasing by each year, the available bed strength remained only as 1,200 even in the year 1995. Chapter VII, which deals with the development policy, states in sub-para 6 of para 7.01 that tourism through the provision of lodging and boarding facilities particularly for lower and middle income groups, recreational facilities, adequate roads, and local transport facilities, shall be within the carrying capacity of the hill and para 7.02 of the above Chapter states the measures that are to be taken. So, the Master Plan, Ex.P-70, envisages the future plans for developing the facilities to the tourists and if A2 passed an order, Ex.P- 53, granting permission taking into consideration the fact that the site is to be used to its optimum level, he cannot be accused of any criminality, especially in the background of the positive evidence of P.W. 40 that there is no illegal gratification passed between the accused. The contention of the learned S.P.P. that in the note, Ex.P-53, the Minister did not specifically state that in the interest of tourism, he is passing the orders, is no ground to hold that A2 did not take into consideration the tourism aspect, since in his note, he has stated that the use of site to its optimum level is also need to be considered and accepted. Ex.p-70 being the Master Plan for the hill station of Kodaikanal and the Hill Station Building Rules being generally applicable to all hill stations, the special rules, Ex.P-70, ought to prevail. It is, therefore, to be inferred that A2 passed the order in terms of Ex.P-70. It is to be remembered that no single witness gave evidence that the permission was not in public interest and A2 was not questioned u/s 313 Code of Criminal Procedure that the permission is not in public interest. A2 has, in his written statement filed u/s 313 Code of Criminal Procedure, stated that sanction was given to them hotel since he believed that the facilities available for the tourists to stay in Kodaikanal, were inadequate. Therefore, in the absence of any evidence to the effect that the permission was not in public interest and in view of the categorical statement of A2 u/s 313 Code of Criminal Procedure. Which is supported by Ex.-70, the Master Plan, it is difficult to say that A2 acted with factual malafides. The learned trial Judge was not justified in holding that no public interest was involved in granting exemption, in view of the evidence of P.W. 11, who has admitted that there were number of appeals pending awaiting the amendment to the Act and the Rules, seeking exemption. A2 had before him two competing public interests, one being environment and the other being the scenic beauty of the hill station and that of tourism. After considering both, regarding the first mentioned public interest, he noted the pollution clearances and imposed conditions as to the height of the building and the slope of the roof and after taking into consideration the second public interest, he allowed for putting up a construction of additional floors and even if he had chosen between the two competing interests, the act committed by him does not become one without any public interest.

The allegation in Charge No. 3 framed against A1 to A3 u/s 13(2) r/w 13(1)(d) is that they being the public servants by corrupt or illegal means and by abusing their positions as public servants, obtained for M/s. Pleasant Stay (Kodai) Hotels Private Limited, pecuniary advantage or valuable thing without any public interest, by issuing G.O. Ms. No. 126 M.A. and W.S. Department dated 13.5.1994 and G.O. Ms. No. 317 M.A. and W.S. Department dated 6.12.1994, granting exemptions and relaxations from various rules and statutory norms for the construction of seven storey structure at Kodaikanal. The learned trial Judge did not consider and appreciate the effect of the Amendment Act 52 of 1994. The Amendment Act gives retrospective effect validating all acts done, proceedings taken and orders issued by the State Government and therefore, the order passed by A2 and G.O. Ms. No. 126 and G.O. Ms. No. 317 issued by the State Government are deemed to have been validly passed and issued. The real effect of the retrospective amendment and validation is that the power to relax the rules always existed on the date the orders were passed and issued. It is also to be remembered that Section 217Q was introduced in the Tamil Nadu District Municipalities Act. Under the Amendment Act, which was to operate retrospectively from 9.12.1992, the amendment validated all the acts done. The effect of a deeming clause is well-settled. In East End Dwellings Co. Ltd. v. Finsbury Borough Council ( 1951 (2) All ER 587 ), Lord Asquish held as follows:

If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

The said view of Lord Asquith in the above judgment was quoted with approval by the Supreme Court in The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others,

In Vijay Mills Company Limited etc., etc. Vs. State of Gujarat and others, the Supreme Court quoted with approval its findings given in Raj Kumar Vs. Union of India (UOI) and Others, wherein the Apex Court held that once a law is given retrospective effect as from a particular date, all actions taken under the Act even before the amendment was made, would be deemed to have been taken under the Act as amended and there is no question of having to validate any action already taken provided it is subsequent to the date from which the amendment is given retrospective effect. The Supreme Court in Vijay Mills Company Limited etc., etc. Vs. State of Gujarat and others, held that if the contention mat the validating Act cannot validate rules made or acts done prior to the date it was enacted, is accepted, it will strike at the very root of the concept of retrospective validation and that law is an instrument which is forged to regulate the affairs of the society. Similar view was taken by the Supreme Court in Polaki Motors and Others Vs. State of Orissa and Others, , wherein it was held that the effect of retrospectively amending the provisions is, for all legal purposes, is that the amended provisions shall be deemed to have been included in the original Act and all consequences and incidences have to be carried to their logical conclusion.

The Supreme Court in Indira Nehru Gandhi v. Raj Narain ( 1975 (Supp.) SCC 1), had an occasion to consider the matter of retrospective effect brought in to the Representation of the People Act, when the election of Indira Nehru Gandhi was challenged by the unsuccessful candidate on five grounds which were upheld by the High Court and her election to the Parliament was set aside. To include the expenditure incurred by the party of the successful candidate in the expenditure incurred by her, the defeated candidate relied, before the trial Court, on the decision of the Supreme Court in Shri Kanwar Lal Gupta Vs. Amar Nath Chawla and Others, . The effect of that decision, however, stood nullified by the Representation of the People (Amendment) Ordinance, 1974, which was later replaced by Act 58 of 1974 and it added an Explanation to Section 77(1) of the said Act. The Supreme Court held that the finding of the High Court that the Appellant committed corrupt practice in breach of Section 123(7) of the above Act, is also repelled by the legislative changes. It was further held that if powers are exercised in a malafide manner, it is the particular exercise of power that can be questioned and struck down and the provision does not become invalid merely because it could be abused as practically any provision of law can be by those who may want to do so.

The law on the subject is, therefore, clear and when A2 passed an order, which was subsequently validated by an amendment Act, he cannot be prosecuted on a charge that the said order,Ex.P-53"" which resulted in the issuance of two G.O.s., Exs P-56 and P-66, is against various rules and statutes. In view of the deeming provision giving retrospective effect, it is to be held that A2 had the power even on 5.5.1994 when he passed the said order. On the discussion made above, I hold that the prosecution did not establish the charge framed u/s 13(2)r/w 13(1)(d) of the Prevention of Corruption Act, 1988, against the accused.

Now, let me take up the charge framed u/s 477A IPC, which is the subject of Charge No. 2 and the said charge was framed against A1 and A2. A1 was acquitted of the said charge and A2 was convicted. The said Section was introduced into the Penal Code by Act 8 of 1895 passed by the British Parliament and is identical to Section 1 of the Falsification of Accounts Act, 1875, of the United Kingdom. The heading of the Section is Falsification of accounts and therefore it deals with plurality of falsification. It deals with falsification of book, paper, writing, valuable security or account. The word "or" is to be read in conjunction and not in disjunction, since what is sought to be punished u/s 477A IPC is not the mere falsification of a book, but an account book. Similarly, the mere falsification of a paper, writing or a valuable security, will not be an offence under the Section, unless such falsification is related to "accounts". The body of Section refers to "ac count" in singular, but the heading is in plural form by using the term ''accounts'' and therefore, what is punishable u/s 477A IPC is falsification of a paper, writing, etc. in relation to accounts.

In the King-Emperor v. Bibhudananda Chakravarti (Vol. XXIII The Calcutta Weekly Notes 935), the accused was prosecuted for the offence u/s 477A IPC. The facts of the case are that the accused was a clerk in the Certificate Department of Burdwan and was in-charge of the section which dealt with requisitions under the Public Demands Recovery Act made on behalf of estates under the management of the Court of

Wards. In April 1917, several requisitions were filed by a pleader on behalf of the Manager of Karotiya Estate. Each requisition bore a Court-fee Stamp and was accompanied by a stamped vakalatnama. In the letter part of 1918, irregularities were suspected in the office and an enquiry was made and in the course of that enquiry, it was discovered that the requisitions and vakalatnamas just mentioned had been tampered with. The Court-fee upon them appeared to have been taken from other papers and attached to the requisitions and vakalatnamas in lieu of the Court-fee stamps which they originally bore. A contention as raised before the Court that on the allegation, no offence u/s 477A IPC was made out. It was pointed out that the marginal note describes the offence as falsification of accounts and that the explanation to the section imports the same idea, namely, that the section refers to something in the way of book-keeping or written accounts. It was also pointed out that no registers were said to have been tampered with so as to bring the entries in the registers into conformity with the papers as they were after the substitution of used stamps for new stamps. The Court, after referring the cases cited by Russell on Crimes in the Chapter dealing with Falsification of Accounts Act, 1875, of the United Kingdom, held that on plain reading of Section 477A IPC, the acts alleged against the accused cannot be brought within its scope without straining the words of the section. In the present case, the removal of the alleged dissenting note, therefore, will not attract Section 477A IPC against A2. In any event, I have already held that Ex.P-68 could not have been prepared by P.W. 15 on 6.5.1994 and that it could not have been given to A2 along with the note file, Ex.P-48, and therefore, there is no question of A2 removing a non-existing dissenting note. In that view of the matter also, Section 477A is not made out against A2.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Supreme Court, after considering the principles in the law and the subject, held that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, ) where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) The circumstances should be of a conclusive nature and tendency,

(4) They should exclude every possible hypothesis except the one to be proved, and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The Supreme Court observed that the above principles constitute the Punchsheel of the proof of a case based on circumstantial evidence.

In Hanumant Vs. The State of Madhya Pradesh, the judgment of which was quoted with approval by the Supreme Court in Sharad v. State of Maharashtra ( 1984 SC 1622), the Apex Court held as follows:

In dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg v. Hidge ( (1838) 2 Lew 227), where he said:

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

A perusal of the judgment of the learned trial Judge shows that he has misdirected himself on question of fact and therefore, found the accused guilty. For instance, the learned trial Judge held that A1 was unwilling to reconsider the order, which is no based on facts, since, even according to the prosecution, Ex.P-68, the additional dissenting note of P.W. 15, was not seen by A1 and she was not even apprised either by P.W. 15 or by P.W. 17 about the additional note of P.W. 15. The learned trial Judge also misdirected himself on a question of fact when he stated that retrospective effect was given to Section 217Q of the Tamil Nadu District Municipalities Act from 13.5.1994, the date on which G.O. Ms. No. 126, Ex.P.-56, was issued, whereas the retrospective effect was from 9.12.1992, the date on which Chapter X-A came into force. The learned trial Judge also exceeded his jurisdiction when he stated that the collective wisdom of the legislature in passing the Amendment Act, cannot be treated in public interest, as the Court cannot question the collective wisdom of the legislature. Similarly, the finding of the learned trial Judge that A1 was instrumental in transferring P.W. 15, is not based on evidence, since the evidence of P.W. 30 shows that the transfer of P.W. 15 was proposed by P.W. 30 and the prosecution has no evidence that A1 or A2 has ever made any suggestion for the transfer of P.W. 15. The learned trial Judge was also not justified in holding that A1 and A2 ignored the orders of the High Court when they granted their approval granting exemption, since the High Court, by its interim orders not on one occasion but on two occasions, stated that the party can approach and get approval from the Government. The trial Judge was not justified in holding that the Government ought to have accepted the suggestion of the AAA Committee. Section 217C of the Tamil Nadu District Municipalities Act deals with the procedure as to how an application for licence should be submitted. Sub-Section 3(a) of the said Section states that the State Government may constitute a committee called the Committee for Architectural and Aesthetic Aspects for all the hill stations in the State of Tamil Nadu and Sub-Section 5 of Section 217C deals with matters which should be taken into consideration by the AAA Committee. u/s 217C, rules have been framed. Rule 27 of the Tamil Nadu District Municipalities (Hill Stations) Building Rules, 1993, framed u/s 217C of the Act, states that the Government on receipt of the recommendations of the Architectural and Aesthetic Aspects Committee, may either approve the proposal with or without such modifications as it deems fit or reject the proposal. This shows that the Government is the ultimate authority and is not bound by the recommendation of the AAA Committee and therefore, the trial Judge was not justified in saying that the Government has committed an error in not accepting the recommendation of the AAA Committee for rejecting of the proposal.

On considering the entire evidence placed before me, I am of the view that the prosecution has not succeeded in establishing the charges against all the accused/Appellants and therefore, they are entitled to an acquittal and accordingly, they are acquitted.

In the result, Criminal Appeal Nos. 147, 185, 191 and 197 of 2000 are allowed and Criminal Appeal No. 184 of 2000 abates. It is reported that the accused are on bail. Hence, the bail bonds, if any, executed by them shall stand cancelled and the fine amount, if any, paid by them shall be refunded.