Sedapatti Muthiah vs State of Tamilnadu

Janarthanam, J.—The present action is one, resorted to by the petitioner under S. 438, Code of Criminal Procedure, seeking grant of

anticipatory bail in connection with the case registered as Cr. No. C6/AC/96 Head Quarters, Madras on the file of Vigilance and Anti Corruption,

Head-quarters, Madras-6, for an alleged offence under S.13(2) read with S.13(1)(e) of Prevention of Corruption Act, 1988 (Act 49 of 1988)

(for short P.C. Act 1988) said to have been committed by him while holding the office of a ''Public Servant'' in the sense that he, or any other

person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which he cannot satisfactorily

account, of pecuniary resources or property, disproportionate to his known sources of income.

The accusations, which levelled against the petitioner in an F.I.R. lodged on 20.8.1996 by the Superintendent of Police, Western Range,

Vigilance and Anticorruption, Madras-6, culminated in the registration of a case, as stated above, run as under:

The accused was Speaker of Tamilnadu Legislative Assembly from 1991 till May, 1996, Earlier, he was a Member of Parliament for one term,

and a Member of the Legislative Assembly for two terms. He was a Public Servant within the meaning of S.2(c) of the Prevention of Corruption

Act, 1988. The accused is native of Muthappan Patti, Peraiyur Taluk, Madurai District and belonging to a middle class family.

There is reliable information that, during this tenure as the Speaker of Tamil Nadu Legislative Assembly, the accused had been wielding enormous

influence with the Ministers, including the Chief Minister, bureaucrats and other officials, and that by misusing his position and by indulging in acts of

corruption, had acquired assets far beyond his known sources of income. Discreet preliminary verification of the information has disclosed that he

had purchased immovable properties to an extent of about 63 acres at Malayagoundanpetti, Nilakottai Taluk, in the names of his father Dr.

Ramasamy Thevar, mother Tmt. Seethaiammal, wife Tmt. Sakuntala and children Malarvizhi (Daughter), Tamil Selvi (daughter) - Arivazhagan and

Manimaran (sons) for a total value of about Rs. 16 lakhs. It is also learnt that a sum of about Rs. 25,000/- was spent by him as hire charges for

bulldozer for levelling the land purchased.

The following other assets acquired by him have also come to notice:

(i) A two-storey building with 12 blocks, constructed during 1992-93 on a house plot 5085 sq.ft. in Maravankulam, Thirumangalam purchased in

the name of his wife during February, 1987, costing more than Rs. 15 lakhs (Built up area is about 9700 sq.ft.)

(ii) TATA SUMO Jeep

(iii) Two Omni Buses said to be plying between Madras and Madurai in the name of his brother Tr. Kasi.

It is reliably learnt that prior to 1991 when he became Speaker he did not possess much pecuniary resources which would have enabled him to

acquire properties to the above extent. His income from agricultural lands was only marginal.

The above information discloses that the accused is in possession of properties and pecuniary resources which are far beyond his known sources

of income, and for which, he has to satisfactorily account. The offence u/s 13(2) read with 13(i)(e) of Prevention of Corruption Act, 1988 is

disclosed against him. The information requires a detailed probe.

I am therefore registering a case in Cr. No. 6/AC/96/HQ against the accused for the purpose of taking up investigation.

On the date of registration of the case, that is to say on 20.8.1996 itself, the Inspector of Police, Vigilance and Ani-Corruption, Madurai, filed a

petition under S.93 of the Code of Criminal Procedure, 1973, before the Principal Sessions and Special Judge, Madras, praying for the issuance

of warrants for inspecting and searching the premises and seize the incriminating documents/other things found therein stating that he has reasonable

belief that incriminating documents and other materials relating to the commission of an alleged offence under S.13(2) read with S.13(1)(e) of

''P.C. Act 1988, for which a case has been registered, such as registered documents relating to transactions in immovable properties, bank

records, account books, diary entries, liquid cash and other papers and costly and luxurious items of movable properties, which have relevance to

the case and required for the purpose of investigation, are kept by the accused in the premises, which are in his custody or in the custody of others.

Details of the premises to be searched for which search warrants were required, are as follows:-

Residence of Tr. R.M. Arivalagan, son of Tr. R. Muthiah at No. A-1, Pappa Apartments, Shanmugham Nagar, Madurai Road, Thirumangalam,

Madurai District

Residence of Tr. R. Muthiah at No. 6-2-18/A, Agraharam Street, T. Kallupatty, Thirumangalam Taluk, Madurai District.

Residence where the parents of Tr. R. Muthiah are residing at No. 2/105, Muththappan patty, Peraiyur Taluk, Madurai District.

Search warrants, as prayed for, had been issued by learned Principal Sessions and Special Judge, Madras.

Searches of the said premises were stated to have been made on 21.8.1996 by the personnel belonging to Vigilance and Anti-Corruption in

compliance with due procedural formalities required under law and inventory of articles and documents found in the respective premises searched,

was made.

The search of the residential premises of Tr. Arivalagan, who is none other than the son of the petitioner/accused revealed the following details:

(1) The petitioner''s son Arivalagan is the Managing Partner of a Knitting Company at Tiruppur, having its branch at Madurai.

(2) Recovery of slips showing deposits having been made in the Knit-wear works with Indian Bank, Madras.

(3) Documents, showing 12 housing flats at Thirumangalam, valued about Rs. 15 lakhs in the names of the following persons:

(i) Arivalagan - son of the petitioner

(ii) Malarvizhi and Tamil Selvi - daughters of the petitioner.

(4) Valuable house hold articles 18 in number such as Air Conditioning unit, Silver wares, etc.

The search of the residence of R. Muthiah revealed the following details:

(i) Documents showing election expenses to the tune of Rs. 6 lakhs;

(ii) Presence of 8 kg. of silver articles in respect of which an inventory had been taken; and

(iii) Seizure of receipts, vouchers, pass books etc. to verify the transactions covered by them.

The search of the residence, where the parents of the petitioner, had bene residing revealed the details as below:

Fixed deposit receipt to the tune of Rs. 2 lakhs.

Tractor and Trailer purchased in the year 1993 for Rs. 3,40,000/- ;

Three sale deeds for a total value of Rs. 1,08,000/- in the name of Ramasamy Thevar, the father of the petitioner.

Further investigation, it is said, is being made as to details of properties - landed and house properties- held in his name or in the name of others.

It is at that stage, the present action has been resorted to.

From the submissions of Mr. P.H. Pandian, learned Senior counsel appearing for the petitioner and Mr. R. Shanmugha Sundaram, learned

Public Prosecutor, representing the respondent, the points, as below, emerge for consideration.

(1) Whether, the petitioner/accused, while holding, the office of the Speaker of Tamilnadu Legislative Assembly, was to be construed as a ''Public

Servant'' in the eye of law for an investigation to be launched against him for the alleged commission of offences under S.13(2) read with S.13(1)

(e) of the P.C. Act, 1988 in the sense of acquiring in his name or in the name of others properties or other valuable securities, disproportionate to

the known sources of income?

(2) Whether in-built or intrinsic prima facie materials are available to make it appear that launching of prosecution against the petitioner/accused is

nothing but a political vendetta as alleged, in order to humiliate and put him to sham disgrace in the eyes of public to close his political career once

and for all? and

(3) Whether, it is, on the facts and in the circumstances of the case, desirable to grant anticipatory bail?

Point 1:- The moot question that arises for consideration herein is as to whether the petitioner R. Sedappatti Muthiah, former Speaker, Tamil

Nadu Legislative Assembly, while so functioning as Speaker could be construed as a ""Public Servant"" for offences, if any, alleged to have been

committed by him in such capacity under the relevant provisions of P.C. Act, 1988 so that a prosecution can be launched against him.

For answering, with ease and grace, the question so posed, one has to understand the concept of ""Public Servant"" from the point of view of

P.C. Act 1988"".

The preamble to this Act states:-

An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith.

Sections 30 and 31 thereof are also relevant for our purpose. They run as under:-

S.30:- Repeal and Saving:- (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952(46 of 1952),

are hereby repealed.

(2) Notwithstanding such repeal, but without prejudice to the application of S.6 of the General Clauses Act, 1897 (10 of 1897), anything done or

any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with

the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.

S.31 : Omissions of certain Sections of Act 45 of 1860:- Ss.161 to 165-A (both inclusive) of the Indian Penal Code shall be omitted, and S.6 of

the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said Sections had been repealed by a Central Act

From what has been extracted above, it is made abundantly clear that the men existing law relating to prevention of corruption and matters

connected therewith had undergone a sea of change by the repeal of me men existing statutes and enactment of a new statute captioned an

Prevention of Corruption Act 1988 (Act 49 of 1988). The then existing Statutes, which were repealed are:-

(1) The Prevention of Corruption Act, 1947 (Act 2 of 1947) (for short P.C. Act 1947) and

(2) The Criminal Law Amendment Act, 1952 (Act 46 of 1952).

Notwithstanding the repeal of the enactments referred to above, anything done or any action taken or purported to have been done or taken

under or in pursuance of the Acts so repealed, shall, in so far as it is not inconsistent with the provisions of P.C. Act 1988, be deemed to have

been done or taken or in pursuance of the corresponding provisions of the P.C. Act, 1988. But this is without prejudice to the application of S.6 of

General Clauses Act, 1897 (Act 10 of 1897).

Ss.161 to 165-A (both inclusive) of I.P.C. shall be omitted. S.6 of the General Clauses Act 1897 shall apply to such omission as if the said

Sections had been repealed by the Central enactment.

The concept of ""Public Servant"" under P.C. Act, 1947 and P.C. Act, 1988 varies very widely and therefore decisions, if any, rendered by

courts of superior jurisdiction-Apex Court and High Courts under P.C. Act, 1947 are of no binding value.

P.C. Act, 1947 did not at all provide a specific definition of ""Public Servant"" and what had been done therein was that ""Public Servant"", as

defined in S.21 of the Indian Penal Code (Act 45 of 1860), was adopted for all purposes by way of ""means definition"" in S.2 thereof, which states:

For the purposes of this Act, ""Public Servant"" means a public servant as defined in S.21 of the Indian Penal Code (45 of 1860).

The Supreme Court traced me legislative history of S.21 of I.P.C. in the case of R.S. Nayak Vs. A.R. Antulay, with a view to find out whether

a Member of me Legislative Assembly is a ""Public Servant"" within the purview of any of me Clauses of S.21 I.P.C. and ultimately observed in

Paragraphs 57 and 58, which run as under:-

There thus a broad division of functions such as executive, legislative and judicial in our Constitution. The Legislature lays down the broad

policy and has the power of purse. The Executive executes the policy and spends from the consolidated Fund of the State what Legislature had

sanctioned. The Legislative Assembly enacted the Act enabling to pay to its members salary and allowances. And the members vote the grant and

pay themselves. In this background even if there is an officer to disburse this payment or that pay bill has to be drawn-up are not such actors being

decisive of the matter. That is merely a mode of payment, but the M.L.As. by a vote retained the fund earmarked for purposes of disbursal for pay

and allowances payable to them under the relevant statute. Therefore, even though M.L.A. receives pay and allowances, he is not in the pay of the

State Government because Legislature of a State cannot be comprehended in the expression ''State Government''.

This becomes further clear from the provision contained in Article 12 of the Constitution which provides that ''for purposes of Part III, unless

the context otherwise requires, ""the State"" includes, the Government and Parliament of India and the Government and the Legislature of each of the

States and all local or other authorities within the territory of India or other authorities within the territory of India or under the control of the

Government of India. The expression ''Government and Legislature'' two separate entities, are sought to be included in the expression ''State''

which would mean that otherwise they are distinct and separate entities. This conclusion is further reinforced by the fact that the Executive sets up

its own secretariat, while Art. 187 provides for a secretarial staff of the Legislature under the control of the Speaker, whose terms and conditions

of the service will be determined by the Legislature and not by the Executive. When all these aspects are placed together, the expression

''Government'' in S.21(12)(a) clearly denotes the Executive and not the Legislature. M.L.A. is certainly not in the pay of the Executive. Therefore,

the conclusion is incapable that even though M.L.A. receives pay and allowances, he cannot be said to be in the pay of the Government, i.e. the

Executive. This conclusion would govern also the third part of Clause (12)(a) i.e., ''remunerated by fees for performance of any public duty by the

Government''. In other words, M.L.A. is not remunerated by fees paid by the Government i.e., the Executive.

S.2 of the P.C. Act, 1988 contains specific provisions relatable to ""public duty"" and ""public servant.

Clause(b) thereof, defining ""public duty"" reads as under:-

(b) ""Public duty"" means a duty in the discharge of which the State, the public or the community at large has an interest

Explanation:- In this clause ""State"" includes a Corporation established by or under a Central, Provincial or State Act, or an authority or a body

owned or controlled or aided by the Government or a Government Company as defined in S.617 of the Companies Act, 1956 (1 of 1956);

S.2(c) defines ""public servants"" as under:-

(c) ""public servant"" means -

(i) any person in the service or pay of the Government or remunerated by the Government by fees or ..(sic) for the performance of any public duty;

(ii) any person in the service or, pay of a local authority;

(iii) any person in the service or pay of corporation established or under a Central, Provincial or State Act, or an authority or a body owned or

controlled or aided by the Government or a Government company as defined in S.617 of the Companies Act, 1956 (1 of 1956);

(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of anybody of persons, any adjudicatory

functions;

(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver

or commissioner appointed by such court;

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent

public authority;

(xvii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or the conduct an

election or part of an election;

(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

(ix) any person who is the President, Secretary, or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade

or banking, receiving or having received any financial aid from the Central Government or a State Government or from any Corporation

established by or under a Central, Provincial or State Act, or any authority or body owned or centralised or aided by the Government or a

Government company as defined in S.617 of the Companies Act, 1956 (1 of 1956):

(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or member of any

selection Committee and intend by such commission or Board for the conduct of any examination remaking any selection on behalf of such

Commission or Beard;

(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by

whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in

connection with holding or conducting examination;

(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner

established receiving or having received any financial assistance from the Central Government or any State Government, or local or other public

authority.

Explanation 1:- Persons failing under any of the above sub-clauses are public servants, whether appointed by the Government or not.

Explanation 2:- Wherever the words ""public servant"" occur, they shall be understood of every person who is in actual possession of the situation of

a public servant, whatever legal defect there may be in his right to hold that situation.

From the definition of ""Public Servant"", extracted as above, sub clauses (iv) and (viii) of S.2(c) are relevant for our present purpose.

According to sub clause (iv) of S.2(c), any Judge, including any person empowered by law to discharge, whether by himself or as a Member of

any body of persons, any adjudicatory function is a ""public servant."" If the Speaker of the assembly has any adjudicatory function, it goes without

saying that he has to be construed as a ""Public Servant"" within the meaning of sub-clause (iv) of Section 2(c). The question is whether the Speaker

of a Legislative Assembly performs any adjudicatory function so as to bring him within the definition of ""Public Servant"" under sub clause (iv) of

Section 2(c).

Tenth Schedule to the Constitution of India has been inserted by S.6 of the Constitution (Fifty-second Amendment) Act, 1985 with effect from

1.3.1985. This schedule had been so inserted to make provisions as to disqualification on the ground of defection.

Paragraph 6 thereof dealing with decision on question as to disqualification on ground of defection runs as under: -

(1) If any question arises as to whether a member of a House has became subject to disqualification under this Schedule, the question shall be

referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall to final:

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such

disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision

shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this

Schedule shall be deemed to be proceedings in Parliament within the meaning of Art.122, or, as the case may be, proceedings in the legislature of

a State within the meaning of Art.212.

Paragraph 7 thereof dealing with Bar of jurisdiction of Courts reads as under:

Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a

member of a House under this Schedule.

From what has been extracted above, jurisdiction of Courts in respect of any matter connected with disqualification of a Member of a House

under the schedule has been ousted and such adjudicatory function has been vested with either the Chairman or the Speaker of the House as the

case may be and his decision is final. Such being the case, it cannot at all be stated that the petitioner, R. Sedappatti Muthiah, whilst functioning as

Speaker of the Tamil Nadu Legislative Assembly, was not a ""Public Servant"" within the meaning of clause (iv) of S.2(c) thereof.

According to clause (viii) of S.2(c) thereof, any person who holds an office by virtue of which he is authorised or required to perform any

public duty is a ""public servant"". ''Public duty'' as defined under S.2(b) is a ""means definition"" and ""public duty"" according to the said provision

means a duty in the discharge of which the State, the public or the community at large has an interest.

Speaker of a house is primarily a Member of the House in the sense that one cannot get elected as a Speaker of the House without his being a

member of the House.

VII (B) of Third Schedule to the Constitution prescribing the form of oath or affirmation to be made by a member of the Legislative Assembly

runs as under:-

Form of oath or affirmation to be made by a member of the Legislature of a State:-

Ins. by the Constitution (Sixteenth Amendment) Act, 1963, S.5.

Subs, by the Constitution (Sixteenth Amendment) Act, 1963, S.5, for Form VII.

A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly

affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of

India and that I will faithfully discharge duty upon which I am about to enter.

Appropriate at this juncture to refer to the observation of the Supreme Court in the case of "" R.S. Nayak Vs. A.R. Antulay, as contained in

paragraph 59 (page 713) which runs as under:

It was also contended that M.L.A. is not performing any public duty. It is not necessary to examine this aspect because it would be rather difficult

to accept an unduly wide submission that M.L.A. is not performing any public duty. However it is unquestionable that he is no performing any

public duty either directed by the Government or for the Government. He no doubt performs public duties cast on him by the Constitution and his

electorate. He thus discharges constitutional functions for which he is remunerated by fees under the Constitution and not by the Executive.

A useful reference may also be made at this juncture to the precedent emerging from Orissa High Court in the case of Habibulla Khan Vs.

State of Orissa and Another, in which their Lordships S.L. Hansaria, C.J., and D.M. Patnaik, J., happened to consider for the first time as to

whether a Member of a Legislative Assembly is a ""Public Servant"" within the definition of S.2(c) of the P.C. Act, 1988 and whether he is such a

Public Servant"", for whose prosecution under the said Act, previous sanction as required by S.19 is necessary. The summary of the discussion

relatable to those two questions, as available in the head note, runs as under:-

An M.L.A. does hold an ""Office"" and performs ""Public duty"" by virtue of holding that office as would appear from Chapter III of Part VI of the

Constitution. Therefore, though an M.L.A. would come within the fold of the definition of ""Public servant"", as given in S.2(c) of the Act, he is not

the type of ""Public Servant"" for whose prosecution under the Act, previous sanction, as required by S.19, is necessary.

The Government is not the competent authority to remove an M.L.A. and indeed, there is no authority competent to do so. So, there is no

authority who can grant previous sanction as contemplated by S.19. If those is none to give sanction in case of an M.L.A., it cannot be urged that

sanction is none-the-less necessary, merely because an M.L.A. is a public servant.

It cannot be said that because the Governor is a person who (1) creates the office of M.L.A., (2) abolishes the office, though temporarily, he is the

authority competent to remove an M.L.A., He does not owe his appointment to the State. When the Governor dissolves the House it does not

mean removal of M.L.A. The power of disqualification conferred on the Governor cannot be treated as a power conferred on him to remove the

M.L.A., because it will give rise to a very anomalous situation, namely, there would be four constitutional functionaries competent to remove an

M.L.A., they being the President, the Governor, the Speaker and the Election Commission.

The omission to mention an M.L.A. specifically in any of the clauses of the definition may even indicate that it was not contemplated to make him

such a public servant to prosecute whom previous sanction is necessary. If the intention of the Parliament would have been that for prosecution of

an M.L.A., sanction is necessary, nothing would having been easier to do so than to specifically mention an M.L.A. in the definition clause; mere

so, when many other office holders have been so named.

The Government has no express power of removal of an M.L.A., and the same cannot be conceded by necessary implication. The Act would be

fully workable even if previous sanction for prosecution is not required in any particular case or, for that matter, in any case.

The doctrine of implied power is invoked where without the said power the material provisions of an enactment become impossible of

enforcement. To put it differently, this doctrine is pressed into service where, to make the statute workable, power is read by necessary

implication. Power which is inconsistent with the one expressly given cannot be implied, and that power alone can be implied which is necessary to

make the power exacessly conferred enforcebale.

I respectfully agree with the view of the Orissa High Court as above.

On the face of the decision in the case of ""Habibulla Khan"" supra and the observations made in paragraph 59 by the Supreme Court in the

case of ""R.S. Nayak"" supra which has persuvasing value it goes without saying, that the Speaker of a Legislative Assembly is a ""public Servant

within the meaning of Clause (viii) of S.2(c) of the P.C. Act, 1988. In view of this, the petitioner, R. Sadappatti Muthiah, whilst functioning as

Speaker of the Tamil Nadu Legislative Assembly, has to be necessarily construed as a ""Public Servant"" under the P.C. Act, 1988.

Looking at either from the angle of Clause (iv) or from the angle of Clause (viii) of S.2(c) of the P.C. Act, 1988, I am of the view that the

petitioner, Sedapatti Muthiah, while functioning as Speaker of the Tamil Nadu Legislative Assembly, was certainly a ""Public Servant"" and for the

violations or refractions of the provisions, if any, of the said Act he is liable to be prosecuted. This point is answered accordingly.

Point 2:- To the vociferous argument made in a flamboyant style that the launching of prosecution against the petitioner/accused is nothing but a

political vendetta in order to humiliate and put him to shame and disgrace in the eyes of the public to close his political career once and for all, I am

not in a position to affix my seal of approval on the facts and in the circumstances of the case. It is not as if the Vigilance and Anticorruption Cell

has registered a case under S.13(2) read with 13(1)(e) of the P.C. Act, 1988 for his owning or possessing assets or valuable securities either in his

name of in the name of others disproportionate to the known sources of his income without making any preliminary investigation but me sordid fact

is that the fact that such an investigation before the registration of the case had been made, had been stated in an explicit fashion by way of specific

averment in the First Information Report lodged. This apart, within a day or two of me registration of the case, as had been stated earlier, it has

come to light that the petitioner had acquired during his tenure of office as Speaker of the Tamil Nadu Legislative Assembly assets, properties,

movable or immovable securities etc., either in his name or in the names of his close relatives so as to make it appear prima facie that the

acquisition of such assets and properties etc., are reasonably believed to have been acquired by means disproportionate to the known sources of

his income in unlawful manner. Further investigation, it is said, is being continued in that regard and the probability of some more light to be thrown,

relatable to acquisition of properties, not in a lawful manner cannot be ruled out of consideration as in the nature of events reported to have

happened day in and day out. Further, even assuming for argument''s sake that there is existence of political vendetta or animosity as against him

from invisible quarters in power, that cannot be a ground for not launching a prosecution for an alleged ""public looting"" by a public servant like the

petitioner on the face of the existence of prima facie materials in that regard. When I say this, I should not be mistaken, I am arising the views,

which could be expressed at the time of final disposal of the case. I have to pen down such a view, in view of the arguments advanced in that

regard. If I have not expressed anything with regard to the points so urged, it may be said that I have not given due consideration therefor and only

in that view of the matter, I was rather impelled or compelled to air my views relatable to launching of prosecution as against the petitioner under

the P.C. Act 1988 due to political vendetta as alleged, even though no materials exist to prove the same, except the fact that the petitioner belongs

to a different political party from the party now in power.

I may again reiterate and state that this point as urged has to necessarily face dismal failure. This point is answered accordingly.

Point 3:- The parameters for the grant or otherwise of anticipatory bail to a person accused of offence/offences of a non bailsole character

have been stated in a a lucid fashion at paragraph 31 of the Constitution Bench decision of the Supreme Court in the case of ""Gurbaksh Singh

Sibbia v. State of Punjab"" (1988) 2 S.C.C. 565) and it reads as under: -

In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some

ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the appellant on bail i the

event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking

advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not

necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed occupation

appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There

are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting

anticipatory, bail. The nature and seriousness of the proposed charges, the context of the events likely to lead Xo the making of the charges, a

reasonable possibility of the applicant''s presence not being secured at the trial, reasonable apprehension that witnesses will be tampered with and

the larger interests of the public or the State"" are some of the considerations which the court has to keep in mind while deciding an application for

anticipatory bail.

A useful reference may be made to the 41st report dated September 24, 1969 of the Law Commission of India, which pointed out the

necessity for introducing a provision in the Code of Criminal Procedure enabling the High Court and the Courts of Session to grant anticipatory

bail. The Law Commission of India observed in paragraph 39.9 of its report (Volume I) thus:

The suggestion for directing the release of a person on bail prior to his arrest (commonly known as ""anticipatory bail"") was carefully considered by

us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such

power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try

to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In

recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increases. Apart from false cases, where there are

reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there

seems to justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of suggestion. We are further of the view that this special power should be conferred only on the High Court and

the Court of Session, and that the order should take effect at the time of arrest or thereafter.

In the back drop of the parameters prescribed by the Apex Court for the grant or otherwise of anticipatory bail and also observation made by

the Law Commission relatable to the necessity of the introduction of such a provision in the Code of Criminal Procedure. I may delve deep into the

facts and circumstances of the case to find out as to whether it is desirable at this stage to grant anticipatory bail to the petitioner.

No doubt, the petitioner occupied respectable positions for considerable period, by being an M.L.A., for two terms, M.P. for one term and

Speaker for one term. Persons respectable or otherwise, accused of commission of grave crimes, in regard to matters of bail stand on the same

footing and cannot at all be differentiated.

One of the relevant questions that may arise for consideration as had been stated in the case of ""Gurbaksh Singh Sibbia"" supra, whether the

person accused of an offence, if granted bail will be available for trial. It may be stated that in the instant case, the petitioner being a politician,

cannot normally be expected to run away from the country in order to avoid facing prosecution and he has to swim ashore or sink in ocean of

politics in the soil of Tamil Nadu. Therefore, it may be safely taken for granted that he will be available for trial and there are no prospects of

becoming scarce by fleeing away from the country. Even otherwise, for his availability during the course of trial, certain severe conditions of bail

may be imposed and thereby his fleeing from the country can effectively be prevented.

The other important question that may arise for consideration is as to whether the possibility of witnesses acquainted with the facts and the

circumstances of the case getting tampered can/cannot be ruled out of consideration. If the witnesses are getting tampered, the prosecution will

become a fiasCompany In the case on hand, investigation is to revolve on the gathering of materials in a large measure by examination of

innumerable number of witnesses as to the acquisition of assets, properties etc., by the petitioner either in his name or in the name of others by

means disproportionate to the known sources of his income. The petitioner having been in position of power and admittedly a powerful, party

emissary in the party to which he belongs, it cannot at all be stated that there is no prospect or possibility of witnesses getting tampered with. To

put it possibility, it may be stated that his being allowed as free person to move about, he is likely to spell out disastrous consequences in the

process of collection and gathering of vital materials relatable to the accusation levelled against him.

The case of the petitioner is a shining example of the principle ""corruption percolates down"" and such being the case, ""public interest"" and the

interest of the state as well, will not be best served in granting anticipatory bail to him.

Further the seriousness of the proposed charges levelled against him cannot at all be left out of consideration in the matter of granting

anticipatory bail to him.

For the reasons as above, this point is also liable to be rejected as of no merits and consequently the same is answered accordingly.

Thus, taking into consideration the factors, viz.,

The fact that he was a ''Public Servant whilst functioning as a Speaker of the Tamil Nadu Legislative Assembly;

The non-existence of prima-facie materials pointing out existence of any vendetta against him from invisible quarters in power and even

otherwise, launching of prosecution against him cannot at all be prevented, on the face of existence of prima facie materials pointing out the

commission of grave crime of acquisition of assets and properties either in his name or in the names of his close relatives by means disproportionate

to the known sources of his income;

The nature and seriousness of the proposed charges levelled against him;

The context of events likely to lead to the making of the charges;

A reasonable apprehension that witnesses will be tampered with and

The larger interest of the public and in the interest of the state;

I am of the view that the grant of anticipatory bail to the petitioner, R. Sedappatti Muthiah, former Speaker of the Tamil Nadu Legislative

Assembly at this stage, is not at all desirable.

In this view of the matter, it goes without saying that this Criminal Original Petition deserves to be dismissed and the same is, accordingly,

dismissed.