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Judgment
Janarthanam, J.—The jurisdictional or foundational facts giving rise to these petitions, as culled out from the materials available on record,
may succinctly be stated to resolve in the best of fashion possible, the moot and naughty questions arising for consideration.
S. Thirunavukarasu was the Hon''ble Minister for Housing, Government of Tamil Nadu, during the period 1986-87, in the cabinet headed by the
late lamented Dr. M.G. Ramachandran the then Hon''ble Chief Minister of Tamil Nadu. B. Bharathi was attached as his Personal Assistant. In
April 1989, the Government appeared to have received a spate of petitions from the public alleging that the then Minister for Housing, S.
Thirunavukarasu, had indulged in corrupt practices in the sanctioning of plans for the construction of buildings in the Madras Metropolitan area
either by flouting or relaxing the Development Control Rules without assigning any reasons. The Government directed the Inspector General of
Police, Crime Branch, C.I.D., Madras, to conduct a preliminary inquiry and find out whether any corrupt or other malpractices have been
committed in the sanction of planning permission during the relevant period. The Inspector General of Police, Crime Branch, was said to have
submitted a report in August, 1989 revealing that the preliminary inquiry conducted by him disclosed a prima facie case of receipt of illegal
gratification by S. Thirunavukarasu. The Inspector General of Police was stated to have taken up further inquiry in October 1989 and on his being
reminded, a detailed inquiry report had been forwarded to the Government in June 1992.
The enquiry report was stated to have revealed certain startling factors. S. Thirunavukarasu was stated to have passed exemption order in over
150 cases, out of which exemption orders in 29 particular cases were stated to have been issued between 24.12.1987, the date on which the then
Hon''ble Chief Minister passed away, and 31.12.1987, the date on which the new Government was formed. All these exemption orders have to
be construed as illegal and/or otherwise in abuse of his powers done for the pecuniary advantage of himself and his co-conspirators. The Inspector
General of Police would say that these materials would go to show the existence of prima facie case of criminal conspiracy, attracting the
provisions of S.120-B of the Indian Penal Code read with S.5(1)(a) and (d) of the Prevention of Corruption Act 2 of 1947, hereinafter referred to
as ''the old Act''. The Government, after a careful consideration, decided to accept the enquiry report and lodge a formal complaint. Accordingly,
the Secretary to Government, Housing and Urban Development Department, Madras-9, on 15.7.1992, lodged a complaint before the Inspector
General of Police, C.B., C.I.D., Madras. After a smooth sail through the Superintendent of Police, Crime Branch, the said complaint landed into
the hands of the Deputy Superintendent of Police, Crime Branch, on the same day. After scrutiny of the allegations in the complaint, the connected
documents and the annexures, a case was registered in Crime No. 16 of 1992 for the alleged offences under Sections 120-B I.P.C. read with
S.5(2) and S. 5(1)(d) and S.5(1)(a) of the old Act and Specific Offences u/s 5(2) read with 5(l)(a) and 5(2) read with 5(l)(d) of the old Act.
Further investigation was taken up by the said Deputy Superintendent of Police, Crime Branch.
On 16.7.1992 at about 6 a.m., the Deputy Superintendent of Police, Crime Branch, C.I.D. was said to have gone to the residence of S.
Thirunavukarasu, along with a team of police officers. S. Thirunavukarasu was stated to be asleep. At about 7 a.m. S. Thirunavukarasu met the
Deputy Superintendent of Police who explained to the former, the nature of accusations made against him. He was allowed to contact his counsel,
as requested. Thereafter, the Deputy Superintendent of Police arrested him, at 8 a.m. The counsel Mr. P.H. Pandian came at 8.30 a.m. and had
discussion with S. Thirunavukarasu. Thereafter, at about 10 a.m., he was brought to the office of the Deputy Superintendent of Police, Crime
Branch, situated in the Office of the I.G. of Police, Crimes, Madras-4. In the meanwhile, the residence of S. Thirunavukarasu was also searched in
accordance with law but no incriminating document was found. After completion of the necessary formalities S. Thirunavukarasu and B. Bharathi
were produced at 2.30 p.m. before the Court of Session (Special Judge), Madras, with the necessary papers and along with a requisition for
remanding them to judicial custody. Mr. P.H. Pandian, learned counsel for S. Thirunavukarasu and B. Bharathi, appeared before the Special Judge
and vehemently contended that the registration of the case on 15.7.1992 under the provisions of the Old Act for the acts said to have been
committed during the currency of the said enactment, is not permissible legally, inasmuch as no action had been taken under the provisions of the
said enactment therefor, before its repeal on 9.9.1988. He would stress that since no offence had been committed by these persons under the
present Act (Prevention of Corruption Act 49 of 1988) and by no stretch of imagination they can be construed to have committed any offence, the
Court should not order for remand. The said argument was countered by the learned Public Prosecutor who contended that the old Act had been
repealed and in its place a new enactment (Act 49 of 1988) had been passed with a saving provision u/s 30(2) according to which it is legally
permissible for the initiation of prosecution of any person accused of offences under the old Act, notwithstanding the fact that the case as respects
those offences had been registered subsequent to repeal and, in this view of the matter, there is no other go for the Court except to remand these
persons and allow further investigation to proceed according to law. Learned Special Judge, affixing his seal of approval to the projection of the
argument of Mr. P.H. Pandian, rejected the request for remand.
Aggrieved, the State represented by the Deputy Superintendent of Police, C.B., CID, Madras-4, has filed Crl.O.P. No.9283 of 1992,
impleading S. Thirunavukarasu and B. Bharathi as respondents, for setting aside the order. The same had been admitted and notice ordered on
21.7.1992. Both S. Thirunavukarasu and B. Bharathi entered appearance through a counsel of their choice. S. Thirunavukarasu filed an elaborate
counter, alleging, among other things, malafides against the prosecution agency and the present Chief Minister of Tamil Nadu. The Secretary to
Government, Housing and Urban Development Department, Madras-9, has filed a detailed affidavit denying malafides and stating, among other
things, that the only issue arising for consideration in Crl.O.P.9283 of 1992 is whether the refusal of learned Special Judge in rejecting the request
for remand is in accordance with law or not, and the question of malafides cannot at all be gone into. During the course of proceedings, realising
the fact that the arguments relating to want of jurisdiction on the part of the Investigating Agency to investigate the case, as a consequence of non-
disclosure of any cognizable offence by the avernments incorporated in the first information report, and the question of malafides, cannot at all be
pressed into service, S. Thirunavukarasu resorted to file two petitions in Crl.O.P. Nos.10860 of 1992 and 10904 of 1992; the former for quashing
of the first information report on the ground of non- disclosure of any cognizable offence, and the latter for quashing the investigation commenced
on the basis of the first information report mainly on the ground of malafides. When arguments were heard on these petitions on different dates and
orders were reserved on 4.9.1992, B. Bharathi filed Crl.O.P.No.11683 of 1992 on 7.9.1992 for quashing the first information report and the
further investigation in Crime No. 16 of 1992 as against him. Arguments of either side on this petition as well were heard.
The arguments-factual and legal-advanced in an elaborate fashion by either side to set aside the order of the learned Special Judge and to quash
the proceedings initiated, in pith and substance, will give rise to the following three moot questions for discussion and decision:
(i) Whether the impugned order of refusal to remand by the Special Judge is sustainable in taw in the facts and circumstances of the case?
(ii) Whether there is want of jurisdiction for the investigating agency to commence and continue investigation as a consequence of non-disclosure of
cognizable offences by the avernments incorporated in the first information report, even taking for granted that what is stated therein is reflecting the
truth and nothing but the truth?
(iii)Whether malice in law or on facts as alleged against police or civil personnel or the Hon''ble Chief Minister, even if proved, will go to the extent
of rendering void any criminal proceedings pending inquiry, investigation for trial?
The question as to whether acts done constituting cognizable offences during the currency of a repealed enactment, that is the old Act, are
prosecutable subsequent to repeal by the registration of a case and consequent commencement of investigation for the collection of material in a
bid for the formation of opinion to be reflected in the report to be filed u/s 173(2), Code of Criminal Procedure, may fall for consideration in the
arena of discussion. It is not as if the old Act had been repealed once and for all, in the sense of there being no replacement by a new enactment.
The sordid fact is that in order to curb the social menace of ever-pervading corruption in all walks of life, the old Act had been repealed and in its
place a new Act had come into existence which contains rather suitable modifications and stringent provisions with a view to cleanse the public life,
free from the evils of corruption. In doing so, sufficient care, caution and circumspection had been taken by incorporating certain saving provision
in the new Act, as to what is to happen with regard to certain acts done or purported to be done during the currency of the old Act, subsequent to
repeal. The saving provision, about which I will have the occasion to deal in an elaborate fashion at a subsequent stage, enables institution of
prosecution for such acts under certain contingencies. There is no denial of the fact that the old Act had been repealed and in its place a new Act
had come into force on and from the date of such repeal, viz. 9.9.1988. Yet another fact about which there is no dispute is that as regards the
criminal acts alleged against S. Thirunavukarasu and B. Bharathi relatable to the period 1986-87, the period during which the old Act was in force,
no action had been taken before the repeal of the old Act. The plain fact is that action had been taken for such criminal misconduct by the
registration of a case on the basis of the first information report launched by the Secretary, Housing and Urban Development Department, on
15.7.1992, preceded by the holding of a preliminary enquiry which also happened subsequent to repeal. Such launching of a prosecution, as the
Special Judge would say, is rather incompetent an such expression of opinion is now under serious challenge by the mounting of a scathing attack
on the same by Mr. B. Sriramulu, learned Public Prosecutor. He would say that it is the fundamental canon of criminal jurisprudence that
prosecution cannot be launched for certain acts constituting offences as against persons accused of such offences when there is no enactment or
legislation constituting such acts as offences at the time when they were said to have been committed, nor was it permissible to subject such
persons to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This sort
of canon of criminal jurisprudence, according to him, had been given constitutional recognition by providing a clause therefore in sub-clause (1) of
Article 20 of the Constitution of India which prescribes,
No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence,
nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
The Parliament in enacting the new Act, taking cognizance of such a constitutional provision, incorporated a repeal and saving provision in S.30 of
the new Act which reads as under:
(1) The Prevention of Corruption Act, 1947 and the Criminal Law Amendment Act. 1952 are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 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 provisions of this Act.
Omission of certain sections of Act 45 of 1860 had been provided for in S. 31 of the Act and it is couched in the following terms:
Sections 161 to 165-A(both inclusive) of the Indian Penal Code shall be omitted, and S.6 of the General Clauses Act, 1897, shall apply to such
omission as if the said sections had been repealed by a Central Act.
It is necessary to refer at this juncture to the preamble of the new Act (Act No.49 of 1988) which reads:
An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith.
The combined effect of the provisions as engrafted in Ss. 30 and 31 and the preamble of the new Act makes it grossly clear that the intention
was to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. This clearly shows that the
Legislature was alive to the fact that the provisions under Chapter IX of the Indian Penal Code, 1860, Prevention of Corruption Act, 1947 and the
Criminal Law Amendment Act, 1952, are required to be enacted into one Act with modifications so as to make the provisions more effective in
combating corruption among public servants and it was to effectuate that intention that the Act was put on the statue book. Reference in this
context may also be made to the effect of repeal as had been provided under S. 6 of the General Clauses Act, 1897 which reads as under:
EFFECT OF REPEAL:-When this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment
hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not-
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any enactment so repealed or anything duly done or sufferred thereunder; or
(c)Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or Regulation had not been passed.
In order to highlight the consequences flowing from the effect of repeal of an enactment under various contingencies, Mr. B. Sriramulu, learned
Public Prosecutor, drew my attention to certain decisions emerging from superior Courts of Jurisdiction in India as well as in England, where
existed analagous provisions as in the Indian scene. Even though the decisions of English Courts are not binding, they are of some weight specially
because the question as to whether a piece of legislation provides merely for a matter of procedure or it gives vested rights is obviously a question
of general principle in regard to which the law cannot possibly be different in England and in India. Viewed from this angle, profitable reference
may be made to the case in R. v. Fisher (1969) 1 All E.R. 100 . The facts of that case may succinctly be stated to grasp the principle involved
therein. On 28.10.1967, the appellant was arrested and was later charged with being an accessory after the fact to larcency under the provisions
of the Accessories and Abettors Act, 1861 and the Larcency Law Act, 1861: The enactments were repealed by the Criminal Law Act, 1967
which came into force on 1.1.1968. On 2.1.1968 the indictment was signed and the appellant was arraigned on 5.3.1968. On the question
whether the Criminal Law Act, 1967 showed a contrary intention for purposes of negating the effect of section 38(2) of the Interpretation Act,
1889, it was held:
S.12 of the Criminal Law Act 1967, which contained the transitional procedure provisions, showed no contrary intention and accordingly, since
the offence existed at the time to which the proceedings related, the statutory provisions for its indictment and punishment remained in force.
In State of Punjab v. Mohar Singh AIR 1955 S.C. 84 S.6 of the General Clauses Act was dealt with and the Supreme Court, referring to the
consequences flowing as a result of the repeal of an enactment, strikingly said thus:
Whenever there is a repeal of an enactment, the consequences laid down in S.6 of the General Clauses Act will follow unless, as the section itself
says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the
repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for
the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive
old rights and liabilities, but whether it manifests an intention to destroy them. The Court cannot therefore subscribe to the broad proposition that
S.6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. S.6 would be applicable in such
cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility
would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of saving clause is by itself
not material. The provisions of S.6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a
contrary intention can be gathered from the new enactment. Of course, the consequences laid down in in S.6 of the Act will apply only when a
statute or regulation having the force of a statute is actually repealed.
In T.S. Baliah Vs. T.S. Rengachari, , one of the questions that fell for consideration was whether by reason of the repeal of the income tax Act,
1922 by the 1961 Act, the prosecutions in respect of prior proceedings under the 1922 Act were not saved, and whether prosecution under S.52
of the 1922 Act was not sustainable. Their Lordships of the Supreme Court while dealing with this question expressed:
S.297(1) of the 1961 Act expressly repeals the 1922, Act. Clause (2) of S. 297 provides that the matters expressly referred to in Clauses (a) to
(m) are saved notwithstanding the repeal of the 1922 Act. It was contended on behalf of the appellant that under Cls. (2)(a) to (m) of S. 297 of
the 1961 Act the prosecution in respect of proceedings pending at the commencement of the 1961 Act was not expressly saved and therefore it
must be presumed that Parliament had not intended to save prosecutions in respect of proceedings pending at the commencement of the 1961 Act.
In our opinion, there is no justification for this argument. S.6 of the General Clauses Act reads as follows:
The principle of this section is that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in
respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of
an enactment the consequences laid down in S.6 of the General Clauses Act will follow unless, as the section itself says a different intention
appears in the repealing statute. In the case of a simple repeal there is scarcely any room, for expression of a contrary opinion. But when the repeal
is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the
purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and
liabilities but whether it manifests an intention to destroy them. S. 6 of the General Clauses Act therefore will be applicable unless the new
legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained
from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. In other
words, the provisions of S. 6 of the General Clauses Act will apply to a case of repeal even if there is a simultaneous re-enactment unless a
contrary intention can be gathered from the new statute. Having examined the provisions of Clause (2) of S. 297 of the 1961 Act we are of the
opinion that it is not the intention of Parliament to take away the right of instituting prosecution in respect of proceedings which are pending at the
commencement of the Act. It is true that there is no express sub-clause in S.297(2) of the 1961 Act which provides for the continuation of such
proceedings but our concluded opinion is that Parliament did not intend S. 297(2) of the 1961 Act to be completely exhaustive and in regard to
such matters as are not expressly saved by S.297(2) of the 1961 Act the provisions of S.6(e) of the General Clauses Act will apply. It follows
therefore in the present case that under S. 6 of the General Clauses Act a legal proceeding in respect of an offence committed under the 1922 Act
may be instituted even after the repeal of the 1922 Act by the 1961 Act and punishment maybe imposed as if the repealing Act had not been
passed.
In Tiwari Kanhaiyalal and Others Vs. The Commissioner of Income Tax, Delhi, , the question falling for consideration was whether institution
of the prosecution under the income tax Act against the appellant for the alleged commission of offences by him under either the 1961 or the 1922
Act was bad in law as being violative of section 28(4) of the 1922 Act or Article 20(1). The Supreme Court, on an elaborate consideration,
answered the question thus:
S.297(1)of the 1961 Act repealed the 1922 Act. Certain savings were provided in sub-section (2) some of which even without those express
provisions could have been covered by S. 6 of the General Clauses Act, 1897. But for the sake of precision and certainly hose provisions were
made. Some of the clauses (a) to (m) in sub-section (2) of S. 297 are such that a different intention appears from them and they override or
supplement the provisions contained in S.6 of the General Clauses Act. S.297(2) provides:
Notwithstanding the repeal of the Indian income tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act)-
(f)any proceeding for the imposition of a penalty in respect of any assessment completed before the 1st of April, 1962, may be initiated and any
such penalty may be imposed as if this Act had not been passed;
(g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier
year, which is completed on or after the 1st day of April 1962, may be initiated and any such penalty may be imposed under this Act.
All the 12 assessments although they related to the years earlier than the year ending on the 31st day of March, 1962 were completed after coming
into force of the 1961 Act. Hence a proceeding for the imposition of penalty in respect of any one of those years had to be and was initiated under
the 1961 Act in accordance with clause (g). Clause (f) did not come into play and no penalty was imposed under S. 28 of the 1992 Act. That
being so, as rightly pointed out by the High Court, S.28(4) was not a bar to the launching of the prosecution as no such provision is to be found
either in section 271 or in any other section of the 1961 Act. S.28(4) says ''No prosecution for an offence against this Act shall be instituted in
respect of the same facts on which a penalty has been imposed under this section.'' The said provision is not available to the appellant to bar the
institution of the prosecution for an offence against either of the two Acts when a penalty has been imposed not under S.28(1) of the 1922 Act but
under S.271(1) of the 1961 Act.
Grover, J. delivering the judgment on behalf of the Constitution Bench of this Court in the case of Jain Bros. and Others Vs. The Union of India
(UOI) and Others, has pointed out at p.263(of SCR) - (at pp.784, 785 of AIR):
It is obvious that for the imposition of penalty it is not the assessment year or the date of the filing of the return which is important but it is the
satisfaction of the income tax authorities that a default has been committed by the assessee which would attract the provisions relating to penalty.
Whatever the stage at which the satisfaction is reached the scheme of Ss. 274(1) and 275 of the Act of 1961 is that the order imposing penalty
must be made after the completion of the assessment. The crucial date therefore, for purposes of penalty is the date of such completion.
Even clause (1) of Article 20 of the Constitution does not help the appellant. It is not a post facto legislation which is being pressed into service
against him. As pointed out by a Constitution Bench of this Court in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, :
This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such
prohibition has been elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well-known case of Phillips v. Eyre,
(1870) 6 QB1 at pp. 23 and 25 also by the Supreme Court of U.S.A. in Colder v. Bull, (1780) 3 Dalles 386 - (1 Law Ed 648 at p. 649). In the
English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt
as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as
being highly inequitable and unjust.
Article 20(1) also prohibits the subjecting of any person to a penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence. On the facts alleged against the appellant, if found to be true, at the time he made the false statements in the
declarations he did commit an offence under S.52 of the 1922 Act. Sub-section (4) of S. 28 did not obliterate the factum of the commission of the
offence and did not transmute the offence into an innocent act because of the imposition of penalty under S.28. Such imposition merely barred the
prosecution for the trial and conviction of the commission of the offence. The penalty having been imposed under S.271 of the 1961 Act the
launching of the prosecution became permissible and was not hit by Article 20(1) of the Constitution. We are inclined to think that the offence, if
any, committed by the appellant was under S.52 of the 1922 Act as the allegedly false statements in declarations were made at a time when the
said Act was in force. No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the
appellant under S.277 of that Act. The punishment provided in this section is greater than the one engrafted in S.52 of the 1922 Act. To that extent
only the appellant would be entitled to press into service the second part of clause (1) of Article 20 of the Constitution which says that no person
shall:
be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
It is advisable to discuss and dispose of the new point which arose during the hearing of these appeals. Sub-section (1) of S.297 of the 1961
Act repealed the 1922 Act including S. 52. In sub-section (2) no saving seems to have been provided for the launching of the prosecution under
the repealed S.52 of the 1922 Act. It does not seem correct to take recourse to clause (h) of S.297(2) to make the offences come under S.277 of
the 1961 Act as was endeavoured to be done by the respondent in the first 12 complaint petitions. But then from no clause under sub-section (2) a
different intention appears in this regard from what has been said in S.6 of the General Clauses Act. On the facts alleged the criminal liability
incurred u/s 52 of the 1922 Act remains unaffected under cl. (c) of S.6 of the General Clauses Act.
In G.P. Nayyar Vs. State (Delhi Administration), the question that arose was what was the effect of the repeal of the provision under S. 5(3)
of the Old Act, and the Supreme Court answered thus:
.... In view of the provisions of the General Clauses Act the operation of all the provisions of the Prevention of Corruption Act would continue in
so far as the offences that were committed when S.5(3) was in force. The offences that were committed after the date of the repeal will not come
under the provisions of S.6(b) of the General Clauses Act. S.6(c) also preserves all legal proceedings and consequences of such proceedings as if
the repealing Act had not been passed. In this view it is clear that whether Act 16 of 1967 had been brought into force on 20th June, 1967 or not
the rule of evidence as incorporated in S.5(3) would be available regarding offences that were committed during the period before the repeal of
S.5(3).
In R.S. Nayak Vs. A.R. Antulay, , the Supreme Court sounded a note of caution that the rule of construction to be adopted in the
interpretation of the statements must tend to advance the underlying object of the statutes. The expression in this regard cannot be better said than
what the Supreme Court said in paragraph 18:
The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably,
therefore, the provisions of the Act must receive such construction at the hands of the Court as would advance the object and propose underlying
the Act and at any rate not defeat it. If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the
natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the
words used in the Statute would be self-defeating. The Court is entitled to ascertain the intention of the Legislature to remove the ambiguity by
construing the provision of the Statute as a whole keeping in view what was mischief when the Statute was enacted and to remove which the
legislature enacted the Statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting the rule of
construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the
Court to adopt that construction which would advance the object underlying the act namely, to make effective provision for the prevention of
bribery and corruption and at any rate not defeat it.
Mr. N. Natarajan, learned Senior Counsel appearing for S. Thirunavukarasu, commenced his arguments in repelling the submissions of learned
Public Prosecutor in a flamboyant style. However, he could not relentlessly pursue his arguments successfully to a logical conclusion, for the
obvious reason of the submissions emerging from the other side deriving solidified and incontrovertible support from the precedents of the apex of
the judicial administration of the country. Faced with such a predicament situation, he had to naturally succumb to subscribe to the view that the
impugned order of the Special Judge has no legs to stand in the eye of law and he said so admirably but not unwittingly, as an act of saving grace,
that it does not mean that the proceeding revived by setting aside of the impugned order can thrive for a moment on the face of the existence of
incredible and inbuilt materials available on record, pointing out want of jurisdiction for commencement and continuance of investigation and
malafides as well, not only on the part of civil and police personnel but also on the part of the Hon''ble Chief Minister, which will have the effect of
voiding or nullifying the criminal proceedings. However, the tenability or otherwise of such a submission may fall for consideration shortly hereafter.
Mr. V.R. Sridharan, learned counsel for B. Bharathi, left with no other alternative, meekly traded on the path chosen by Mr. N. Natarajan.
Thus, on a conspectus of the construction of the provisions adumbrated under S.30 of the new Act coupled with the provisions as contained in
S.6 of the General Clauses Act, 1897, and taking into consideration the object for which those provisions had been enacted, and on the face of the
consequences flowing from the repeal of an enactment under different situations, as highlighted by the various decisions referred to supra, it goes
without saying that the launching of prosecution under the old Act alone is legally permissible even subsequent to its repeal, as respects offences
which were committed during the period when the old Act was in force - no matter when prosecution was launched - as there was no period of
limitation prescribed therefor and in this view of the matter, the impugned order of the Special Judge deserves to be set aside as being
unsustainable in law.
The feat of diving and delving deep into the question as respects want of jurisdiction to commence and continue investigation by the registration
of a case on information furnished or otherwise, may now be attempted to be performed in the best of fashion possible with reference to the salient
and salutary provisions adumbrated under the Code of Criminal Procedure. Chapter 12 of the Code of Criminal Procedure (for short Cr.P.C.)
deals with information to the police and their powers to investigate. S.154 Crl.P.C., relatable to the procedure to be followed as respects
information laid in cognizable cases, reads as under:
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced
to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be in such form as the State Government may prescribe
in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1)
may sent the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information
discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer
subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in
relation to that offence.
The condition which is sine qua non of recording the first information report is that there must be an information and that information must disclose
a cognizable offence. It is therefore clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station,
satisfying the requirements of section 154(1), the said Officer shall have no other alternative, except to enter the substance thereof in the prescribed
form, that is to say, to register a case on the basis of such information. S. 156 Cr.P.C. deals with the powers of Police Officer to investigate into
cognizable cases. Sub-section (1) empowers the Officer in charge of a police station to investigate any cognizable case without the order of a
Magistrate. Sub.S.(2) lays down that no proceedings of a police officer in such a case shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under this section to investigation. Sub-section (3) gives power to the Magistrate u/s 190 to
order such an investigation, as mentioned in sub-section (1). S.157 Cr.P.C. deals with the methodology or procedure for investigation and it
requires that, whenever such information is received by an officer-in-charge of a police station that he has reason to suspect the commission of an
offence which he is empowered to investigate u/s 156, he must forthwith send a report of it to the Magistrate empowered to take cognizance of
such an offence upon a police report and at the same time he must either proceed in person, or depute one of his subordinate officer to proceed, to
the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender. This
provision is qualified by a proviso which is in two parts. The first clause of their proviso enables an officer-in-charge of a police station not to
proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a
person by name and the case is not of a serious nature. The second clause of the proviso permits the officer-in-charge of a police station not to
investigate the case if it appears to him that there is no sufficient ground for entering on an investigation. The report to be sent to the Magistrate
under sub-section (1) of S. 157 requires that in each of the cases where the officer-in charge of a police station decides to act under the two
clauses of the proviso, he must state in his report his reasons for not fully complying with the requirements of sub-section (1) and, in addition, in
cases where he decides not to investigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the
fact that he will not investigate the case or cause it to be investigated. These provisions are followed by S. 159 Cr.P.C. which mentions the power
of the Magistrate to direct an investigation on receiving the report under S.157 and then states the alternative that, if he thinks fit, he may at once
proceed, or dispute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of the case. On the
face of it, the first alternative of directing an investigation cannot arise in a case where the report itself shows that investigation by the police is going
on in accordance with S.156. It is to be noticed that the second alternative does not give the Magistrate an unqualified power to proceed himself
or depute any Magistrate to hold the preliminary enquiry. That power is preceded by the condition that he may do so ''if he thinks fit. The use of
this expression makes it clear that S. 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the
police decide not to investigate the case under the proviso to S.157 (1), and it is in those cases that, if he thinks fit, he can choose the second
alternative. If the expression ''if he thinks fit'' had not been used, it might have been argued that this section was intended to give in wide terms the
power to the Magistrate to adopt any of the two courses of either directing an investigation, or of proceeding himself or deputing any Magistrate
subordinate to him to proceed to hold a preliminary enquiry as the circumstances of the case may require. Without the use of the expression ''if he
thinks fit'', the second alternative could have been held to be independent of the first, but the use of this expression, in my opinion, makes it plain
that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be
exercised only in those cases in which the first clause is applicable. It may also be further notice that, even in sub-section (3) of S. 156, the only
power given to the Magistrate, who can take cognizance of an offence under S. 190 Cr.P.C. is to order an investigation by the police. The scheme
of these sections, thus clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in
cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative,
himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been
made independent of any control by the Magistrate. The conspectus of the provisions referred to above shows in a clinching fashion that once an
investigation commences on receipt of an information either under S. 154 Cr.P.C. or otherwise as has been provided u/s 157 Cr.P.C., it is
legitimately permissible to continue further investigation to collect the materials and complete the same for the formation of an opinion to be
expressed in the report to be filed under S. 173 (2) Cr.P.C.
The powers of the police to investigate by the registration of a case on an information or otherwise vis-a-vis the powers of the Court to
interfere with the course of investigation came up for consideration on many an occasion before the Apex Court of the country and other High
Courts. The precedents referred to by both sides may now be considered-seriation. In Gansa Oraon v. King Emperor (1923) ILR Pat 517: AIR
1923 Pat 550) it was held that an information means something in the nature of a complaint or accusation, or at least information of a crime given
with the object of putting the police in motion. In AIR 1945 18 (Privy Council) , it was observed thus:
But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation.
No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their
Lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which
genuinely leads them to the belief that a congnizable offence has been committed, should not of their own motion undertake an investigation into the
trust of the matters alleged...
In The State of Bombay Vs. Rusy Mistry and Another, , the Supreme Court observed:
First information report is the information recorded under S.154. Cr.P.C. It is an information given to a police officer relating to commission of an
offence. It is also information given by information which the investigation is commenced.
In Pedda Narayana and Others Vs. State of Andhra Pradesh, the Supreme Court observed thus:
Thus shorn of minutes detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon
after the occurrence. In our opinion, it is neither customary nor necessary to mention every minute detail in the F.I.R.
In Nawratan Mahton v. State of Bihar AIR 1980 NOC 1 the Supreme Court observed-
For instance, the Sessions Judge drew an inference adverse to the prosecution from the fact that certain details were not mentioned in the F.I.R.
This was not a sound ground for rejecting the prosecution case as the broad details are to be given in the Court and not generalized in the F.I.R.
In State of U.P. Vs. Ballabh Das and Others, the Supreme Court observed,-
It is manifest that a first information report is not intended to be a very detailed document and is meant to give only the substance of the allegations
made and, therefore, the absence of the mention of a lathi would not put the prosecution case out of Court.
In Ram Kripal Prasad v. State of Bihar 1985 Crl. L.J. 1048 a Full Bench of the Patna High Court observed,
It is now well settled beyond cavil that a complaint or a first information report in a criminal case is not to be encyclopedia of all the facts.
In Subash Agarwal v. State of Bihar 1989 Crl.LJ. 1752 the Patna High Court observed thus,
Thus even a first information report which was shorn of facts or minute of details but conveys information about the commission of an offence can
be treated as first information report to set the police in motion and start investigation and absence of the details will not be a ground not to treat it
as a report.
The powers of the Court to interfere with police investigation into cognizable offences during the stage of investigation is limited. A Full Bench
of the Punjab and Haryana Court, while dealing with investigation and F.I.R. and powers of Court, in Vinod Kumar Sethi and Others Vs. State of
Punjab and Another, observed thus,-
the power of investigation so far as it vests exclusively in the police or investigating agency is not to be interfered with by the Courts, and the
investigating agency should be left to carry on investigation without any interference. This power, clearly postulates that the investigation so long as
it is in accordance with the provisions of law cannot be interfered with and in consonance with the relevant provisions of law governing the
particular case or is in breach of them.
The Supreme Court considered the law in this respect in State of West Bengal and Others Vs. Swapan Kumar Guha and Others, . The actual
question focused before the Bench consisting of Y.V. Chandrachud, C.J., A. Varadarajan, J., and Amarendra Nath Sen, J., was whether the first
information report lodged by the Commercial Tax Officer, Bureau of Investigation, against the firm and its partners disclosed an offence under S. 3
of the Prize Chits and Money Circulation Scheme (Banning) Act 43 of 1978. Y.V. Chandrachud, C.J., joining with A. Varadarajan, J., rendered a
separate and independent judgment, concurring with Amarendranath Sen, J., and in the process of doing so, a scientillating and lively discussion
had been made on the question posed, with a broad indication of the trend of law emerging on the subject, which gets reflected in Paragraphs 14
to 23 of the judgment, as follows:
My learned brother, A.N. Sen, J., has considered exhaustively the various authorities cited at the Bar by both the sides on the question as to
the power of the courts to quash an investigation. I fully concur with this careful analysis of those authorities and would content myself with a broad
indication of the trend of law bearing on the subject.
Shri Ashok Sen and Shri Siddhartha Shankar Ray pressed upon us with considerable insistence the principle reiterated in W.H. King Vs.
Republic of India and Another, that a statute which creates an offence and imposes a penalty of fine and imprisonment must be construed strictly in
favour of the subject. The principle that no person can be put in peril of his life and liberty on an ambiguity is well-established. But as observed in
M.V. Joshi Vs. M.U. Shimpi and Another, when it is said that penal statutes must be construed strictly, what is meant is that the court must see
that the thing charged is an offence within the plain meaning of the words used and it must not strain the words: ""To put it in other words, the rule of
strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come
within the reasonable interpretation of the statute"", and that in case of doubt, the construction favourable to the subject should be preferred. But I
do not think that this rule of strict interpretation of penal statutes in any way affects the fundamental principle of interpretation, that the primary test
which can safely be applied in the language used in the Act and, therefore when the words are clear and plain, the court must accept the expressed
intention of the legislature. It is unnecessary to pursue this matter any further in view of the fact that the language of S.2 (c) is, in my opinion, clear
and admits of no doubt or difficulty.
In R.P. Kapur Vs. The State of Punjab, the question which arose for consideration was whether a first information report can be quashed
under S. 561-A, of the Criminal P.C. The Court held on the facts before it that no case for quashing the proceedings was made out but
Gajendragadkar J., speaking for the court observed that though ordinarity, criminal proceedings instituted against an accused must be tried under
the provisions of the Code, there are some categories of cases where the inherent jurisdiction of the court can and should be exercised for
quashing the proceedings. One such category, according to court, consists of cases where the allegations in the F.I.R. or the complaint, even if they
are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence
arises and it is a matter merely of looking at the F.I.R. or the complaint in order to decide whether the offence alleged is disclosed or not. In such
cases, said the court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to
be issued against the accused.
In S.N. Sharma Vs. Bipen Kumar Tiwari and Others, first information report was lodged naming an Additional District Magistrate (Judicial) as
the principal accused. His application under S.159 of the Criminal P.C. asking that the Judicial Magistrate should himself conduct a preliminary
inquiry was dismissed, but the Court observed that though the Criminal P.C. gives to the police unfettered power to investigate all cases where
they suspect that a cognizable offence has been committed, in appropriate cases, an aggrieved person can always seek a remedy by invoking the
power of the High Court under Art.226 of the Constitution and that the High Court could issue a writ of mandamus restraining the police from
misusing their legal powers.
Shri Som Nath Chatterjee has placed great reliance on the decision of this court in State of West Bengal Vs. S.N. Basak, in which it was held
that the statutory powers given to the police under Ss. 154 and 156 of the Criminal P.C. to investigate into the circumstances of an alleged
cognizable offence without authority from a Magistrate cannot be interfered with by the exercise of powers under S.439 or under the inherent
power conferred by S.561-A of the Code. It must be remembered that no question arose in that case as to whether the allegations contained in the
F.I.R. disclosed any offence at all. The contention of the accused in that case was that the statutory power of investigation given to the police under
Chapter XIV of the Code is not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act.
1949 and that being so the investigation undertaken by the police was without jurisdiction. That contention was negatived and therefore, the
application filed by the accused under Ss.439 and 561-A of the Code was dismissed.
In Jehan Singh Vs. Delhi Administration, the application filed by the accused under S.561-A of the Code for quashing the investigation was
dismissed as being premature and incompetent, but that was because the court found (per Sarkaria J., Page 797 (of SCR): (at page 1148 of AIR)
that prima facie, the allegation in the F.I.R. if taken as correct, disclosed the commission of a cognizable offence by the accused.
The only other decision to which I need refer is that of the Privy Council in AIR 1945 18 (Privy Council) which constitutes, as it were, the
charter of the prosecution all over, for saying that no investigation can ever be quashed. In a passage off-quoted but much-misunderstood, Lord
Porter, delivering the opinion of the Judicial Committee observed:
In their Lordship''s opinion, however, the more serious aspect of the case is to be found in the resultant interference by the court with the duties of
the police, just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if
found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in
matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory
right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial
authorities, and it would, as their Lordships thinks, be an unfortunate result if it should held possible to interfere with those statutory rights by an
exercise of the inherent Jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the
combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. I
always, of course, subject to the right of the court to intervene in an appropriate case when move under S. 491 of the Criminal P.C. to give
directions in the nature of habeas corpus. In such a case as the present, however, the courts functions begin when a charge is preferred before it,
and not until then."" (at pp. 212. 213 of Ind. App): (at P.22 of AIR). I do not think that this decision supports the wide proposition canvassed
before us by Shri Som Nath Chaterjee in the case before the Privy Council similar charges which were levelled against the accused in an earlier
prosecution were dismissed. The High Court quashed the investigation into fresh charges after examining the previous record, on the basis of which
it came to the conclusion that the evidence against the accused was unacceptable. The question before the Privy Council was not whether the fresh
FIR disclosed any offence at all. In fact, immediately after the passage which I have extracted above, the Privy Council qualified its statement by
saying:
No doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would have no authority to
undertake an investigation.
If anything, therefore, the judgment shows that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It shall also have
been noticed, which is sometimes, overlooked, that the Privy Council took care to qualify its statement of the Law by saying that the judiciary
should not interfere with the police ""in mailers which are within their province."" It is surely not within the province of the police to investigate into a
Report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such
cases.
The position which emerges from these decisions and the other decisions which are discussed by brother A.N. Sen is that the condition
precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence
has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code.
Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have
reason so to suspect unless the F.I.R. prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go
on and the rule in Khawaja Nazir Ahmed will apply. The court has then no power to stop the investigation, for to do so would be to trench upon
the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a
cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.
There is no such thing like unfettered iscretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can
become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the
condition on which it is granted by the Code. I may in this behalf, usefully draw attention to the warning uttered by Mathew J., in his majority
judgment in Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, , to the following effect:
We say and we think it is necessary to repeat, that the gravity of The evil to the community resulting from anti-social activities can never furnish an
adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the constitution and the laws.
The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion
against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for person is that he shall
not be deprived of it except in accordance with the procedure established by law.
For these reasons, which, frankly, are no different from those given by my learned brother A.N. Sen, I am of the opinion that the investigation
which has been commenced upon the First Information Report is without jurisdiction and must, therefore, be quashed. I do accordingly direct that
no further investigation shall take place in pursuance or on the basis of the F.I.R. dated Dec. 13, 1980 lodged by the Commercial Tax Officer,
Bureau of Investigation, with the Deputy Superintendent of police, Bureau of Investigation, Madan Street, Calcutta.
In State of U.P. v. R.K.Srivatsaval, two employees of the State Bank of India and one of its clients holding Current Account were charged
under Sections 120-B, 420, 468 and 471 I.P.C. and section 5(2) read with section 5(1)(d) of the old Act. On the action resorted to u/s 482
Cr.P.C., the High Court of Allahabad quashed the first information report, resulting in further challenge to the Supreme Court, which upheld the
judgment of the High Court in a short but crisp judgment. The relevant portion highlighting the question posed and the discussion made by the
Bench consisting of Murari Mohan Dutt, S. Rathnavel Pandian and T.K. Thommen, JJ., as found in paragraphs 4 to 7 of the judgment, is as under:
The question is whether the fact disclosed in the F.I.R. constitute the offences with which the accused have been charged. It is manifestly clear
from the allegations in the FIR that the respondent or the other accused had no intention whatsoever to make any wrongful gain or to make any
wrongful loss to the Bank. They had accepted the said three cheques amounting to Rs. 54,600/- and sent the same for clearance after debiting the
LOC account. The said cheques have been encashed and the money was received by the State Bank of India. It may be that there was some
delay in crediting the LOC account or that the money against the three cheques were credited in the accounts of the said Shri Sarwant Singh and
his wife, but the allegations made either in the FIR or in the charge-sheet do not show that the respondent and the said P.C. Saxena had acted
dishonestly, that is to say, acted with a deliberate intention to cause wrongful gain or wrongfulness. In our opinion, the High Court has rightly held
that the allegations made in the FIR do not constitute any offence of cheating, nor do they constitute any offence of forgery. It is true that it has
been alleged that the said sum of Rs. 54,600/- was withdrawn on the basis of false credit entries made in the books of accounts of the Bank and
connected credit and debit vouchers were also prepared and passed by the respondent and the other accused. When the said sum of Rs. 54,600/-
had been allowed to be withdrawn by the said Shri Sarwant Singh and his wife, necessary entries had to be made in the books of accounts, but it
is not understandable how these entries can be characterized as false entries. No document has been referred to in the FIR as the outcome of
forgery.
The High Court has rightly held that as the criminal proceedings have been started against the respondent on the basis of a FIR which does not
contain any definite accusation, it amounts to an abuse of the process of the Court and, as such, is liable to be quashed. We entirely agree with the
view expressed by the High Court.
The High Court has quashed the proceedings only as against the respondent No. 1, R.K. Srivatsava. In our opinion, when the allegations in the
FIR are the same against all the accused persons, the entire proceedings including the said P.C. Saxana and the said Shri Sarwant Singh should be
quashed.
Accordingly, while we uphold the judgment of the High Court, we quash the entire criminal proceedings being Crime Case No. 40 of 1983 also
as against the accused P.C. Saxena and Shri Sarwant Singh. The appeal are disposed of as above.
In a recent decision in State of Haryana v. Bhajan Lal 1992 Crl. L.J. 527 the Supreme Court (Ratnavel Pandian, J. and K. Jayachandra
Reddy, J) took into consideration the relevant authorities on the subject and ultimately concluded as follows:
The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the
police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in
strict complaince with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigated.
When the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter
XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual
investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and
improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and
also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature
and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human
dignity is a dear value of our Constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim
unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of ''Divine Power'' which no authority on earth
can enjoy.
The question as to whether before a public servant, whatever be his status, is publicly charged with acts of dishonesty, which amounts to
serious misdemeanour and the first information is lodged against him, there must be a suitable preliminary enquiry into the allegations by a
responsible Officer or by a Commission of Inquiry, may be dealt with now, as it is incidental to the question now under consideration. When the
old Act was originally enacted, offences relating to criminal misconduct and corruption were not made cognizable offences and such a policy was
obviously as a result of the laudable intention, not to unnecessarily subject the public servants to harassment from any quarter whatever by the
hurling of frivolous accusations, thereby making them suffer agony, anguish and humiliation of all sorts. However, in the process of combating
corruption under the provisions of that Act, experience gained thereof, impelled the Legislature to make such offences cognizable, of course with
certain inbuilt provisions giving necessary protection to the public servant. Such protection emerging in the form of the investigation to be
mandatorily undertaken or conducted by an Officer not below the rank of the D.S.P. and in case if any police personnel below the rank of the
D.S.P. undertakes investigation, such personnel can do so only after obtaining the necessary and requisite permission from the competent
Magistrate. Besides sanction for prosecution had also been provided. These things apart other safeguards such as preliminary enquiry by a
responsible officer or enquiry by a Commission of inquiry had not all been provided. Useful reference may be made in this regard to certain
decisions. In The State of Madhya Pradesh Vs. Mubarak Ali, , their Lordships of the Supreme Court observed thus:
The Act was passed, as the preamble indicates, to make more effective provisions for the prevention of bribery and corruption among public
servants. It introduced a definition of the offence of criminal misconduct in discharging an official duty and new rules of presumption against
accused in the case of the said offence. But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gamed, S.5-A was
inserted in the Act to protect the public servants against harassment and victimization. If it was in the interest of the public that corruption should be
eradicated, it was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous
and malicious accusation. To achieve this object, Ss. 5-A and 6 introduced the following two safeguards: (1) no police officer below the rank - (a)
in the Presidency Towns of Madras and Calcutta, of an Assistant Commissioner of Police, (b) in the President Town of Bombay, of a
Superintendent of Police and (c) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under S. 161. S. 165 or
S. 165-A of the Indian Penal Code (45 of 1860) or under sub-s. (2) of S.5 of the Act, without the order of a Presidency magistrate or a
Magistrate of the first class, as the case may be or make any arrest therefore without a warrant - see S. 5-A; (2) no court shall take cognizance of
an offence punishable under S. 161 or S. 164 or S.165 of the Indian Penal Code (Act 45 of I860), or under S.5(2) of the Act alleged to have
been committed by a public servant, except with the previous sanction, of the appropriate Government - see S.6. These statutory safeguards must
be strictly complied with, for they were conceived in public interests and were provided as a guarantee against frivolous and vexatious
prosecutions. While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an
additional guarantee in the case of police officers below that rank namely, the previous order or a presidency magistrate or a magistrate or
Magistrate of the first class, as the case may be. The Magistrate''s status gives assurance to the bona fides of the investigations.
In P. Sirajuddin, etc. Vs. State of Madras, etc., the Supreme Court sounded a note of caution and the rule of prudence and emphasised the
imperative need for the holding of a preliminary enquiry, notwithstanding the absence of the provisions relatable to such enquiry, and observed,
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct
of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a
responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department,
even if baseless, would do incalculable harm not only to the officer in particular out to the department he belonged to, in general. If the Government
had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries
of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable
manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the
enquiry in such manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are
of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings
against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for someone in authority to take
down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a
charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal
proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the
delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the
ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first
information report.
In Sheonandan Paswan Vs. State of Bihar and Others, , Bhagwati, C.J., considering the absence of an enquiry by a Commission of Enquiry before
launching of prosecution, observed at Paragraph 18 at page 891 as follows:
The learned counsel on behalf of Dr. Jagannath Misra also contended that the prosecution should not have been initiated against Dr. Jagannath
Misra without a prior inquiry made through a Commission of Enquiry set up for that purpose. The argument was that both prudence and propriety
requires the setting up of a Commission of Enquiry prior to initiation of the prosecution because an inquiry made through the Commission of
Enquiry would act as a filter for politically motivated or mala fide prosecution. This argument is also, in our opinion, without any force and cannot
be sustained. It is undoubtedly true that in the past there have been cases where a successor Government has set up a Commission of Enquiry to
enquire into the conduct of former Chief Minister and other persons connected with the administration during regime of the former Chief Minister
but that does not mean that no prosecution should be launched against a former Chief Minister or a person holding high political office under the
earlier regime without first setting up a commission of enquiry for enquiring into his conduct. There is no provision of law which requires such a
course of action to be adopted and it cannot be said that if a prosecution is initiated without an inquiry being held by a commission of enquiry set
up for that purpose, the prosecution would be bad or that on that ground alone prosecution could be allowed to be withdrawn. The criminal
process in India is quite tandy and slow moving and as it is, it takes considerable time for a prosecution to ultimately come to an end and if a
requirement were super-imposed that no prosecution shall Ire launched against a person holding high political office under an earlier regime without
first setting up a commission of enquiry and the commission coming to a prima facie conclusion that such person has committed acts which would
constitute offences, the entire criminal process would be reduced to a mockery because the commission of enquiry itself might go on for years and
after the inquiry is concluded the prosecution will start where the entire evidence will have to be led again and it would be subject to cross-
examination followed by lengthy arguments. It would, in our opinion, be perfectly legitimate for the successor government to initiate a prosecution
of a former chief minister or a person who has held high political office under the earlier regime without first having an inquiry made by a
commission of enquiry, provided of course, the investigation is fair and objective and there is sufficient material to initiate such prosecution. There
are, under the existing law, sufficient safeguards for the purpose of ensuring that no public servant is harassed by false and vexatious prosecution or
charges of corruption, because no such prosecution can be initiated without sanction under S.6 of the prevention of corruption act or S.197 of the
code of criminal procedure, 1973. These safeguards cannot be said to be inadequate even if they do not afford adequate protection in any
particular case, the magistrate is always there to protect an innocent accused because if in the opinion of the magistrate, there is not sufficient
evidence and the charge against the accused appears to be groundless, the magistrate may straightway discharge the accused without taking any
evidence. It would become very difficult, almost impossible, to bring to use the words of Krishna Iyer. J. ''the higher inhabitants of Indian Public
and political docks'' within the net of the criminal law if an additional requirement is imposed that there should first be an inquiry by the commission
of enquiry before any prosecution can be launched against them. This contention urged on behalf of Dr. Jagannath Misra must also therefore, fail.
In appreciation of the rival submissions rvelving on the question as respects want of jurisdiction, the fact situation relating to the topic under
discussion may be noticed to give a legal fitment in the backdrop of the principles evolved in the decisions cited supra. The fact-situation as
revealed by the first information report may now be adverted to an the relevant details, which are absolutely necessary for the present purpose as
mentioned therein, are expressed here in:
I am the Secretary to Government, Housing and Urban Development Department, Madras-9. I am bringing to your notice the following facts for
necessary action. Thiru S. Thirunavukkarasu during his tenure as minister was in charge of housing. The materials hrwith enclosed disclose that
Thiru S. Thirunavukkarasu, Thiru Bharathi along with others appear to have entered into a criminal conspiracy to commit cognizable offences
punishable under S.5(2) read with section 5(1) (d) and section 5(1) (a) of the prevention of corruption act. 1947 and specific offences u/s 5(2)
read with section 5 (1) (a) and section 5(2) read with section 5(l)(d) of the prevention of corruption Act, 1947. I would therefore request you to
scrutinise these materials, register a case and proceed with investigation according to law.
To provide for planning, development and use of rural and urban land in the state of Tamil Nadu and for purpose connected therewith, the Tamil
Nadu Town and Country Planning Act, 1971, was enacted. It provides also for the creation of the metropolitan Development Authority for the
metropolitan area called MMDA. The control of development of lands rests with the MMDA. The appropriate planning authority is given the right
to grant of refuse permission in request of application to it. MMDA has the power of revocation and modification of the permission which has been
granted. Provision for appeal, revision and review has also been provided for. The development control rule have also been framed for the Madras
Metropolitan area for section 122 of the Act.
During 1988-87 a number of appeal petitions were received by the government of Tamil Nadu for issue of planning permission for the construction
of buildings applied for by them within the Madras Metropolitan planning area. In all these instances the constructions were in violation of Rules
and M.M.D.A. had rejected planning permission.
Officials in the department in Secretariat have put up notes recommending that the appeal petitions may be rejected as no fresh grounds have been
raised which merit consideration by the government. In many of the instances, the applicants have constructed additional floors, constructed
deviating from the original plan and later sought exercise of the review powers of the government to regulate their unauthorized constructions. In
almost all these cases, Thiru S. Thirunavukarasu as Minister of Housing, Government of Tamil Nadu and as a public Servant and in pursuance of a
criminal conspiracy along with his personal assistant Thiru Bharathi and others, passed orders without assigning any reason, allowing the petitions,
thereby abusing the extra-ordinary power to grant exemption u/s 113 of the Tamil Nadu Town and Country Planning Act, 1971.
Therefore, the first information report cites the instances wherein appeal petitions were received from the parties mentioned herein, in which the
officials, and also secretary of the department have put up notes recommending the rejection of the said appeal petitions for valid reasons but S.
Thirunavukarasu as Minister for Housing has allowed the appeal petitions, overruling the objections raised by the department officials. Thereafter,
the first information report reads thus:
As aforesaid, during the period 1986-87, Tr. S. Thirunavukarasu as the Minister for Housing, in the Govt. of tamil nadu in pursuance of the
criminal conspiracy, with his personal assistant, Tr. Bharathi and others caused pecuniary advantage to the petitioners by allowing their review
petitions and thereby permitting them to retain their unauthorised constructions without being demolished as would have been the case otherwise.
The exemption orders on these review petitions were passed by Tr. S. Thirunavukarasu arbitrarily, without assigning any reasons and in some
cases on flimsy grounds over-ruling the objections of the housing and urban development department obviously with ulterior motives and for
consideration. By repeated abuse of the powers u/s 113 of the Tamil Nadu Town and Country Planning Act, 1971 and in a short period and by
abusing his official position and by corrupt and illegal means, Mr. S. Thirunavukarasu in pursuance of the criminal conspiracy obtained for himself
and others substantial pecuniary advantage....
Thus during 1986-87 in pursuance of the criminal conspiracy with his Personal Assistant Tr.Bharathi and others, Tr. S. Thirunavukarasu had by
corrupt and illegal means to wit by abusing his official position obtained for himself and others substantial pecuniary advantage in the manner set out
supra. The pecuniary advantage obtained by these persons amounts to about Rs. 21,45,29,000/- approximately (Rupees twenty one crores forty
five lakhs twenty nine thousand). The pecuniary advantage is calculated by assuming the cost of construction at Rs.200/- per sq. ft. The cost of site
at Rs.200/- sq.feet. and the likely selling price at Rs. 600/- per sq.ft. resulting in gain of Rs. 200/- per sq.ft. of the building constructed by the
beneficiaries in pursuance of the orders passed by the Minister against D.C. Rules. Besides all the instances mentioned earlier, there are many
other instances wherein similar orders, overruling the valid objections of the Housing and Urban Development Department have been passed by
Thiru. S. Thirunavukarasu. Copies of such orders enclosed.
In the last paragraph of the first information report, it is prayed that action may be take"" against the concerned according to law, inasmuch as prima
facie offences u/s 120-B of the Indian Penal Code read with the relevant provisions of the old Act, as had been indicated in the preamble portion,
were made out.
It is to be recapitulated at this juncture that prior to the registration of the case on 15.7.1992, on the complaint lodged by Thiru. L.N.
Vijayaraghavan, IAS, Secretary to Government, Housing and Urban Development Department, Madras 9, in his letter No. 1036/Secy.Hg./92
dated 15.7.1992, to Thiru L.N. Venkatesan, IPS, Inspector General of Police (Crimes), Madras-4, a preliminary enquiry had been made by no
less than a person in the cadre of the Inspector General of Police (Crime Branch), consequent upon the spate of petitions received by the
Government alleging corrupt practices in the matter of according of exemption u/s 113 of the Town and Country Planning Act, 1971, and pursuant
to the orders of the Government in Office hen, and subsequently it was followed by a detailed probe by the successor Government, culminating in
the filing of a report to the Government in October 1989, as indicated in the summation of facts, disclosing the existence of a prima facie case of
criminal conspiracy, attracting the provisions of section 120-B I.P.C. read with sections 5(2), 5(1) (d) and 5(1)(a) of the old Act, and specific
offences under sections 5(2) read with section 5 (1)(a) and section 5(2) read with section 5(1)(d) of the old Act.
Before analysing the fact-situation as revealed by the first information report to come to the conclusion as to whether the facts mentioned
therein prima facie constitute any of the cognizable offences as had been referred to therein better it is to consider whether S. Thirunavukarasu
(Minister for Housing, then) can be construed to be a ''public servant'' within the meaning of the old Act. S. 2 of the old Act dealing with
interpretations, defines a ''public servant'' by means of an inclusive definition, which reads as under:
for the purposes of this Act, ''public servant'' means a public servant as defined in section 21 of the Indian Penal Code 45 of 1860).
The twelfth clause of section 21, I.P.C. dealing with ''public servant'' reads as follows:
Every person-
(a) in the service or pay of Government or remunerated by fees or commission for the performance of any public duty by the Government;
b)...
In M. Karunanidhi Vs. Union of India and Another, , a Constitution Bench of the Supreme Court Y.V. Chandrachud, C.J., P.N. Bhagwati, N.L.
Untwalia, S. Murtaza Fazal Ali and R.S. Pathak, JJ.) happened to consider as to whether the Chief Minister of a State is public servant falling
within the definition of section 21 I.P.C. While considering that question, the Bench took notice of the relevant decisions on the subject and
ultimately held that the Chief Minister is a public servant within the meaning of clause (12) of section 21 I.P.C. in the following words:
Three facts, therefore, have been proved beyond doubt:
That a Minister is appointed or dismissed by the Governor and is therefore, subordinate to him whatever be the nature and status or his
constitutional functions.
That a Chief Minister or a Minister gets salary for the public work done of the public duty performed by him.
That the said salary is paid to the Chief Minister or the Minister from the Government funds.
It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution
provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges.
The salary given to the Chief Minister is conterminous with his office and is not paid like other constitutional functionaries such as the President and
the Speaker. These facts, therefore, point to one and only one conclusion and that is that the (Chief Minister) is in the pay of the government and is
therefore, a public servant within the meaning of S.21 (12) of the Penal Code.
On the face of the pronouncement of the apex Court, it goes without saying that S. Thirunavukarasu, while functioning as a Minister, must have to
be construed as a ''public servant'' falling within the definition of S.21 (12) I.P.C. Coming to B. Bharathi, there cannot be any difficulty in
concluding that he being a Government Servant and Personal Assistant attached to a Minister receiving pay and emoluments from the Government,
is indisputably a ''public servant''.
The main accusation as revealed by the first information report ''Mr. N. Natarajan, Learned Senior Counsel, would say'' is that S.
Thirunavukarasu in exercise of his powers as the Minister in charge of Housing granted exemption u/s 113 of the Tamil Nadu Town and Country
Planning Act, 1971, without giving any reasons and overriding the departmental note put up recommending rejection of the appeals filed seeking
exemption. Passing of such orders, learned Senior Counsel would elaborate further, it not a sin for the Minister to do and he in fact is vested with
such powers u/s 113 of the Tamil Nadu Town and Country Planning Act, 1971, especially when the said provision did not require any reason to
be given while exercising such powers. Mr. V.R. Sridharan, learned counsel for B. Bharathi, while adopting the arguments of learned Senior
Counsel, would also press into service that the materials available on record did not disclose the existence of any conspiracy. In this connection,
learned Senior Counsel placed implicit reliance on the decision of this Court in P. Dwarakanath Reddy v. New India Maritime Agencies Pvt. Ltd.
W.A. Nos. 1102 and 1103 of 1990 dated 13.11.1990, wherein it was observed as under:
--Though it is desirable to disclose in express terms in the order itself that the policy and purpose of the Act have weighed with the Government,
while granting the exemption, the order will not become illegal or ab-initio void for want of such disclosure and it is permissible for the party
concerned to show aliunde that the order of exemption has not ignored the policy and purpose of the Act and on the other hand has adhered to it.
It would be a different matter if the provision itself enjoins the giving of recitals to that effect in the order. S. 113 of the Act, does not enjoin the
Government to set forth in the order of exemption, the reasons therefor.
Mr. B. Sriramulu, learned Public Prosecutor, on the other hand would strenuously contend that the legality or otherwise of the passing of the
exemption order is irrelevant and further does not call for a decision, and what he would contend is that irrespective of the orders passed in
granting exemption being illegal or otherwise, the question that falls for consideration is as to whether those orders had been passed by the abuse
of his position as Minister by deriving of pecuniary advantage to himself or others pursuant to a conspiracy hatched therefore. To put it otherwise,
he would say, it is not unusual for receipt of illegal gratification even for passing lawful orders and, in projection of such a submission, placed
reliance upon the decision in Som Parkash v. State of Delhi AIR 1074 SC 989 wherein Krishna Iyer, J., expressed thus:
Where the duty had been fully paid and only the signature of the Excise Inspector to the proforma had to be appended for which the bribe was
sought, it cannot be said that if duty had to be paid nothing was gained by giving the bribe to the Inspector. Bribes are paid not only to get unlawful
things done but to get lawful things done promptly since time means money, ''speed money'' is the key to getting lawful things done in good time
and ''operation signature'' be it on a gate pass or a proforma can delay the movement of goods, the economics whereof induces investment in
bribery.
Reverting to the factual position, as reflected by the first information report, can it be said, as vociferously contended by Mr. N. Natarajan,
learned Senior Counsel, that the facts of this case disclose ex facie no offence whatever, much less a cognizable offence under the relevant
provisions of the old Act and the Indian Penal Code. The answer to such a question can be nothing else but an emphatic ''No'' in the circumstances
of the case. It is of signal importance to note that exemption orders in over 150 cases were passed and in particular orders in 29 cases had been
passed within a period of one week from the date of death of the late lamented Dr. M.G. Ramachandran, the then Chief Minister making it
possible for the applicants in whose favour exemption orders had been passed to derive pecuniary advantage quantified in a sum of
Rs.21,45,29,000/- approximately. It is to be emphasised here that the preliminary enquiry, stated to have been held prior to the registration of the
first information report, also prima facie points out the receipt of illegal gratification for passing such exemption orders, pursuant to the conspiracy
hatched among himself, his P.A. and others.
S.5(1)(a), section 5(1)(d) and section 5(2) of the old Act, which are relevant for the present purpose, read, as follows:
Criminal Misconduct - (1) A Public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification
(other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code (45 of 1980), or
(b)..
(c)..
(d)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, or
e)...
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but
which may extend to seven years and shall also be liable to fine;
The definition of ''criminal conspiracy'' u/s 120-A, I.P.C., for which punishment is provided under S.120-B, I.P.C., is couched in the following
terms;
120-A-Definition of criminal conspiracy - when two or more persons agree to do, or cause to be done--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in pursuance thereof.
The crux of the provisions as aforequoted is that illegal gratification, if accepted by a public servant, cither for himself or for any other person as a
motive or reward or otherwise in abusing his position as a public servant, amounts to criminal misconduct, attracting penal consequences. Mention
may also be made here as to the existence or otherwise of the criminal conspiracy as alleged.
In a criminal conspiracy, the intention to do criminal act is itself a crime, unlike in other offences which require not only the intention to do a criminal
act but also in addition something committed in execution of the intention. The essence of the conspiracy being safe agreement between the
conspirators, the same has to be proved in the manner allowed by law. While accepting the proof of conspiracy, reality of the situation has to be
taken into account. Conspiracy as a whole is brought about in secrecy and the proof of the same, by adduction of evidence direct, is really an
impossible feat in most of the cases, though in the rarest of rare occasion, the possibility of obtaining such evidence is there. As such the conspiracy
may be proved in most of the cases, by process of inference or induction from relevant proved facts and circumstances. In the case on hand, it
cannot be said that the materials disclosed in the first information report do not at all prima facie point out the existence of certain relevant facts and
circumstances, creating a suspicion of the existence of a conspiracy for the receipt of illegal gratification as alleged, which itself on the basis of the
provisions of section 157 Cr.P.C. gives the requisite power to the Investigating Agency to commence and continue investigation. Once the power
inheres in the investigating agency for the commencement of investigation u/s 157 Cr.P.C., such a power cannot at all be either interfered with or
interdicted by the Court till a final report u/s 173(2) Cr.P.C. is filed before court, except in exceptional circumstances warranting interference as in
the case of interfering with the personal liberty or freedom of the person against whom prosecution is launched. This is admittedly a case in a
nascent stage of investigation, subsequent to the registration of the case on an information lodged and, therefore, it cannot be stated that there was
any possibility for the misuse of powers of the Investigating Agency tending to affect the personal liberty or property of the person prosecuted. No
doubt, the powers of the court would commence co-terminus with the filing of a final report u/s 173(2) Cr.P.C, in the sense of examining the report
and other connected records for giving its opinion as to taking cognisance or otherwise of the case. It is not as if the investigation in this case is not
done by an Officer not competent to investigate, inasmuch as the investigation into corruption is by no less a person than a person in the cadre of
Deputy Superintendent of Police, Crime Branch, C.I.D. Further, as already indicated, there was no hurly-burly haste or hurry in launching the first
information report straight, without resorting to holding a preliminary enquiry. These things apart, there is also the hurdle of getting sanction for
prosecution before ever the final report is filed under S.173 (2) Cr.P.C. On the face of the prima facie disclosure of the commission of cognizable
offences by the averments in the first information report and other inbuilt safeguards, either observed or to be observed before ever filing a final
report, it cannot be stated that there is want of jurisdiction for the Investigating Agency to commence the investigation on the basis of the first
information report lodged and continue to collect materials for the formation of their opinion to be reflected in the final report to be filed under
S.173 (2) Cr.P.C.
This sort of a finding is however subject to a finding that maybe recorded on the other question of malafides, for the reason, as urged by Mr.
N. Natarajan, learned Senior Counsel, that even It in the extreme case of holding that the allegations in the first information report do prima facie
disclose a cognizable offence, taking for granted that such allegations are true, the right to commence and continue investigation in a bid to collect
materials for the formation of opinion to be reflected in the report under S.173(2) Cr.P.C. will get snapped, the moment the malice-factual or legal
is either established directly on the materials available on record or is inferred irresistibly from the established facts and circumstances - the
question so interesting and moot it is about which I may now embark upon a discussion.
S. Thirunavukkarasu would attribute political vendetta on the part of Selvi JJayalalitha the Honourable Chief Minister, impleaded as fifth
respondent in Crl. O.P.No.10904 of 1992, for the initiation of criminal proceedings against him, so as to bring him to disrepute in the eyes of the
public and wreck his political career, especially at a time when his popularity is soaring high among the masses. Such attribution of vendetta and
malice get reflected in his affidavit and the relevant portions are extracted hereunder:
While I am advised to state that the present proceeding pending before this Hon''ble Court is one filed by the State of Tamil Nadu against an
order passed by the learned Principal Sessions Judge refusing to accept the remand report submitted by the prosecution, the present proceeding
being one calling upon this Hon''ble Court to exercise its inherent jurisdiction under Sec.482 of the Cr.P.C., the full facts of the matter have to be
placed before this Court for the proper adjudication of this matter. This is particularly because, arising out of the refusal to remand me, in the guise
of the present petition, the State is constrained to make out a case of legal and constitutional issues. While these legal aspects will be dealt with by
my counsel, I shall restrict this present affidavit only for the purpose of bringing to the notice of his Hon''ble Court that the present investigation,
including the registration of the FIR against me and the attempts to remand me to custody are all personally motivated by vendetta and revenge on
the part of the present Chief Minister of Tamil Nadu Selvi J. Jayalalitha and the entire attempt of the prosecution is to try and discredit me in the
eyes of the public by a gross misuse of the police and the Government administration. I respectfully state that this malafide action on the part of the
present Chief Minister and Police Department who are acting on her instructions goes to the root of the complaint. A complaint which has been
filed with malafide intention and an investigation which is likewise motivated by malafide will not give rise to a commission of any cognizable offence
and consequently the State cannot therefore investigate and register a false case motivated by such malice as held by the Hon''ble Supreme Court
of India in the case of C.R. Bansi Vs. The State of Maharashtra, and the Union of India (UOI) and Another Vs. B.N. Ananti Padmanabiah etc., as
followed by a Full Bench of this Hon''ble Court in the case of K. Vecrasumy v. Union of India reported in 1979 L.W. (Crl.) 63 .
As the State is seeking to prosecute this petition for the purpose of getting the imprimator of this Hon''ble Court for continuing with the
prosecution and the investigation, it would be imperative for this Hon''ble Court to find out whether maiafides motivated this case.
I respectfully state that in the instant case the police officials are acting malafide and at the intervention of the Chief Minister Selvi J. Jayalalitha.
This is further established by the fact that the police officials are attempting to fabricate documents by contacting various persons and pressing them
to give false statements against me, but apparently unsuccessfully, because without a single instance of receipt of money or payment of money
having taken place, at the instance of the Chief Minister the complainant (present Housing Secretary) has, without any application of mind, given
the instant FIR on the basis of assumptions and presumptions and ex-facie rebuttable logic.
I respectfully state that another factor which will substantiate my allegations of malafide in the commencement of the present investigation and the
filing of the FIR is the unexplained and inordinate delay in the commencement of the same. Many times in the past, political opponents have made
allegations of this nature against me but even though action could have been instituted if thought fit, three succeeding governments including a long
period directly under the President''s rule and more than one year of the present rule have not done anything about the same. I further respectfully
state that under normal circumstances, any filing of an FIR against a present or former public servant which has a tendency to bring such person to
disrepute ought to be ^preceded by some preliminary investigation of a discreet nature. However, in the instant case, there has been no such
enquiry disclosed in the complaint and no indication of any such file having presented itself. When such is the case, in this matter, the FIR has been
received on the 15th July at 7 p.m. and the arrest is sought to be made at 5 A.M. on the 16th of July.
When the alleged offence is said to have been committed by me in the year 1986-87, sufficient cause should be shown by the investigating
authorities and the prosecution to explain the delay. This explanation ought to be contained at the first instance in the FIR. In the instant case, it is
shocking and revealing to note that in the Column No. 7 where an explanation should be given for the delay if any in instituting the proceeding and
the person responsible for such delay has been conveniently omitted to be filled up leading to the inescapable conclusion that the charge itself
having been falsely hoisted, none of the authorities want to commit themselves to explain such delay. This omission on the part of the authorities in
even filling up a statutory form of filing an FIR and that too a Column requiring vital information further underscores my allegation that the entire
investigation and filing of the FIR has been done hastily at the instance and instigation of the present Chief Minister. It maybe relevantly stated that
even in the body of the complaint there is no explanation why the FIR has come to be lodged after a lapse of over 5 years.
I further respectfully state that investigations under the Prevention of Corruption Act are taken up by a separate wing of the Government called
the ""Vigilance and Anti Corruption Cell"" under the direct control of a senior most Director General of Police. In the instant case, surprisingly, the
case has come to be taken up by the Crime Branch CID and there is no available explanation on record as to why the unusual procedure has been
adopted. I respectfully state that this Hon''ble Court ought to call for the records of the Government relating to this investigation and ascertain
under what authority the complainant namely the Housing Secretary gave the present complaint to the CBCID instead of forwarding the papers to
the authorities specifically constituted for enquiries such as this. Likewise, it is to be ascertained under what authority, has the DSP, in the CBCID
taken up the FIR on file and sought to make a remand the very next day. I state that this unusual procedure has been adopted to circumvent tire
usual course of sending the complaint to the Director General of Police, Vigilance and Anti Corruption because, no facts have been made out in the
complaint, to warrant the department to take the actions as undertaken by the CBCID at the instance of the Chief Minister. I reliably understand
that the Vigilance and Anti Corruption Cell have in fact refused to entertain the instant complaint and consequently recourse has been taken to
adopt the present procedure.
The mala fides of the present Chief Minister arises out of a personal animosity she bears against me. Even a few weeks before I was illegally
detained. I have been making speeches in public meetings, press conference and other public forum stating that the present Chief Minister has
misused her official position in purchasing property from TANSI a State owned body. This was in violation of Governmental orders that specify
that Ministers and such high ranking executives shall not deal in property belonging to the Government or quasi Governmental authorities. Likewise,
she has also misused her official position in contracting with the Tamil Nadu Text Book Society as partner of Jaya Publications and has received
huge sums of money amounting to nearly a crore of rupees for printing text books.
Since I am also a sitting member of the Tamil Nadu Legislative Assembly, having been so elected from the Aranthangi Constituency and being
one of the few members of opposition, there was also an imminent threat that in the forthcoming Assembly sessions I will be raising these issues.
Therefore, one year after coming into power realising the imminent threat of the Government''s instability, the present action to somehow keep me
in custody and affect my credibility with the public has been taken.
My increasing exposure to the public and increasing standing as a political leader in Tamil Nadu has also posed as a real threat to the present
Government. Already there are criminal cases pending against me initiated at the instance of the Chief Minister one of which has been filed by one
Thiru Natarajan husband of one Sasikala Natarajan who is a close confidante and adviser of the present Chief Minister, for alleged defamatory
acts. This case is pending before the XVIII Metropolitan Magistrate Saidapet. There is another civil suit filed against me by the Chief Minister on
the Original Side of the Hon''ble Court once again for alleged acts of defamation and subsequent damages. Since the Chief Minister, apart from
causing me harassment through all these proceedings, could not prevent me from voicing my opinion and thereby gain popularity is now attempting
to interfere with my personal liberty.
12.The present Chief Minister is well aware that as a General Secretary of a registered political party and as a person with a substantial political
support in the State. I could cause a lot of embarrassment to her Government by exposing her misdeeds. She has therefore stooped to the present
action for the purpose of trying to eliminate me politically by making baseless allegations and by gross abuse of State machinery"". He of course did
not attribute any personal animosity to the civil and police personnel connected with the initiation of criminal proceedings but would narrate certain
facts and circumstances, constituting malice in law, in the ever so many grounds taken by him which, in effect, is as follows:
Deviating from the usual procedure of forwarding the complaint to the department of anti-vigilance and corruption and conducting a discreet
enquiry, the registration of this case by the C.B., C.I.D., by means of the first information report in an indecent haste and in a hurly-burly fashion
without proper application of mind is obviously at the instigation of Selvi J. Jayalalitha with the oblique motive of bringing him to public disgrace.
Not withstanding the fact that six years had elapsed from the alleged commission of offence in 1986-87, no explanation whatever forthcame for the
registration of the case on 15.7.1992, after such undue delay, which, in the eye of law, has to be construed as a circumstance pointing out the
ulterior motive of political vendetta and malice behind it.
31.The Inspector General of Police, Crime, Madras 4, and the Superintendent of Police, Crime Branch, CID, Madras-4, impleaded as
respondents 2 and 3 in Crl.O.P. No. 10904 of 1992, did not opt to file any counter affidavit. However, the Secretary, Housing and Urban
Department, Madras 9, and the Deputy Superintendent of Police, Crime Branch, CID headquarters, Madras 4, impleaded as respondents 1 and 4
in Crl.O.P. No. 10904 of 1992, filed counter- affidavits denying malice on the part of civil and police personnel as alleged.
Selvi J. Jayalalitha, Chief Minister, has also filed a counter-affidavit assertively denying political vendetta and malice alleged against her. Apart
from projection or substantiation of her denial adverting to certain factual matters, she would also plead and state by collecting the relevant
precedents emerging from the high courts and the apex court of the country, to show neither malice nor political vendetta can ever be a ground for
quashing criminal proceedings in case the proceeding so initiated did not suffer from the infirmity of want of disclosure of materials constituting
cognizable offences warranting the registration, commencement and continuation of investigation. The relevant portions of the factual matrix in the
affidavit are extracted as below:
I deny the averments contained in paragraph 8 of the affidavit. While it may be true that the petitioner has been indulging in a mudslinging
campaign against me in recent times, it has had no impact whatsoever in the minds of the general public. I specifically deny the allegation that I have
indulged in any corrupt practice by abusing my official position either in the purchase of land belonging to the TANSI by ''Jaya Publications'' or for
that matter in the contract awarded by the Tamil Nadu Text Book Society. Both these transactions are in conformity with the usual norms and no
irregularities or corrupt practices have been committed by me in and by which I had illegally benefited as claimed by the petitioner. I specifically
deny the further allegation of the petitioner that as a result of these two transactions. I obtained substantial pecuniary advantage.
I deny (he allegation contained in paragraph 9 of the affidavit. As adverted to by me supra, the claim of the petitioner that I have become
jealous of him as a result of the alleged increasing exposure of the petitioner as a leader of an opposition political party, is fanciful, to say the least.
It is also incorrect to suggest that the popularity of the petitioner has percolated into the rank and file of the AIADMK Party. I reiterate that the
members of my party have always been and are loyal to me.
I deny the allegations contained in paragraph 10 of the affidavit. It is not correct to state that the defamation case filed by Thiru M. Natarajan
against petitioner herein has been initiated at my instance. In fact, in the past over 2 years I have issued a number of press statements denying my
association with Thiru M. Natarajan It is however true that I have filed a suit for damages in C.S. No. 893 of 1990 on the file of the High Court,
Madras wherein I have claimed damages against the petitioner and 5 others for certain defamatory utterances made by him against me. It is
incorrect to state that the civil suit was filed by me in an endeavour to curb the freedom of expression of the petitioner. As stated herein before, the
petitioner is a solitary member of a political party and by no stretch of imagination he can pose any threat to my political career. I specifically deny
the allegation that I have been instrumental in harassing the petitioner by the police and other officers of the Government for the past one year as
claimed by the petitioner.
I am advised not to traverse upon the averments contained in paragraphs 11 to 17 of the affidavit, as I have neither issued instructions to the
investigating agency in this case nor for that matter I am personally aware of the various details set out therein by the petitioner, except to the extent
regarding the factual statements concerning the proceedings before the court.
I am advised to state that the contention raised in Ground-A of the affidavit is untenable. It is respectfully submitted that the present
prosecution has not been launched as a result of any malice as claimed by the petitioner. I have already advened to the backdrop of the facts and
circumstances culminating in the launching of the FIR by the 1st respondent herein, pursuant to which the investigation has commenced, liven
otherwise, I am advised to state that the question of malice is not germane to the determination of the issue as to whether the investigation in a
criminal case is liable to be quashed. However, I hasten to add that the various allegations of malafides attributed to me by the petitioner are not
only false, but made in an endeavour to protract the investigation and thereby delay justice.
I deny the averments contained in Ground-B of the affidavit. ""As submitted earlier, the investigation in the case has not commenced at my
instigation and as such the claim of the petitioner to the contrary is false and untenable.
15..
I deny the allegations contained in Ground-D of the affidavit. As submitted earlier, the police officials are not acting malafides and at my
intervention, as claimed by the petitioner. Such an averments has been made solely in an endeavour to prejudice the mind of this Honourable Court
in arriving at a just decision of the case.
I deny the allegation contained in Ground-E of the affidavit. I am advised to state that the registration of the case, arrest and the production of
the petitioner for remand, have all been done by the investigating agency in accordance with law. I have not misused my official position in the
conduct of the subject investigation, as alleged by the petitioner.
18.....
19.....
20......
I deny the allegations contained in Ground-J of the affidavit. While it is true that the petitioner has been making defamatory speeches against
me in a futile endeavour to harm my reputation it is in the minds of the general public, it is respectfully submitted that these utterances are totally
false. As submitted earlier, the transactions relating to the purchase of the property from TANSI and the contract awarded by the Tamil Nadu Text
Book Society, are effected bonafide and in accordance with the usual norms attendant on such transactions. I once again reiterate that I have no
personal animosity against the petitioner herein, as a result of which the present prosecution has been initiated against the petitioner.
I deny the allegations contained in Ground-K, L and M of the affidavit/As submitted earlier, the petitioner who is the lone representative of the
party floated by him, has never posed any serious threat to my political career and his claim to the contrary is but a figment of his imagination. It is
futile to contend that the present Government is reeling under any imminent threat as a result of any threat or poser made by the petitioner herein
and that I had to resort to unethical measures to impair his alleged credibility with the general public.
The terminology ''malice'' came to be interpreted and understood by various High Courts and the Apex Court of the country and useful
reference may be made to some of those decisions. In Ram Chandra Chaudhuri Vs. Secretary to Govt. of West Bengal and Others, it was held,
Malafides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes; (1) that the authority making the
impugned order did not apply its mind at all to the matter in question or (2) that the impugned order was made for a purpose or upon a ground
other than what is mentioned on the face of the order...
When an authority is vested with a power but he is required to consult an advisory body before taking its decision, the responsibility for the
decision or the final action that emerges is that of the authority who is entrusted with the power. If the authority concerned fails to apply its mind
and to exercise its discretion the order will be vitiated by malafides...
In State of Madras v. Tirunelveli Municipal Council, a Division Bench of this Court held,
If the exercise of the power is malafides or is a colourable exercise of power for some ulterior purpose, the Court will never hesitate to strike down
the exercise of the power.
Malafides would include a colourable exercise of the power, that is, an exercise of power which is ostensible so, but which is really a pretext with
the ulterior objective or for achieving some other end. But it is for the party alleging malafides to establish that element as a reasonable inference,
on the facts and probabilities shown to exist, a mere allegation of malafides, as not entirely improbable, will not do and courts have to take notice
of the increasing trend to allege this, sometimes with little or no evident substance.
In Express Newspapers Pvt. Ltd v. Union of India, their Lordships of the Supreme Court held:
Fraud on power voids the order if it is not exercised bonafide for the end design. There is a distinction between exercise of power in good faith
and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bonafide, and with
best of intentions, some extraneous matters or by ignoring relevant matters. That would render the iimpugned act or order ultra vires. It would be a
case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal
grudge or for wreaking vengeance of a Minister...
A Power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of
a power for an ''alien'' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an
order is made for a purpose other than which finds place in the order. The ilterior or alien purpose clearly speaks of the misuse of the power.
The concept of ''malice'' traceable to its origin in the field of administrative law had been accorded judicial recognition as a potent weapon in
protecting the legal rights by the powers that be, either by administrative or executive orders, in the sense of those orders having been set at naught,
quashed or restrained by the issuance of a writ of certiorari, or mandamus, or a combination of both. The sphere of its activity had been extended
to other fields of law as well particularly criminal law. The extent of its sweep and sway in the field of criminal law cannot be stated to be of such
magnitude as to go to the extent of quashing the criminal proceedings, but its sphere of activity in such proceedings can go to such an extent that, if
a police officer illegally exercises his investigating powers in breach of any statutory provision causing serious prejudice to personal liberty and also
of property of a citizen, then the court being approached had to consider the nature and extent of the breach and pass appropriate orders as may
be called for without leaving the citizens in the lurch. It may further be stated that malice or vendetta by itself can by no means be stated to serve as
a factor resulting in the quashing of criminal proceeding, but such a factor will lead to the quashing of criminal proceedings in case there are no
materials disclosing cognizable offence giving jurisdiction to the police to register, commence and continue investigation for a final report to be filed,
in the sense, if the registration of such a case and commencement of investigation had been perpetrated with the oblique motive of harassing the
party against whom prosecution had been launched or to bring him into disrepute, obviously by means of colourable exercise of power. This will
be evident from the discussion to be followed by deriving solidified support from certain precedents emerging from the apex of the judicial
administration of this country.
In dealing with the malafides exercise of powers of investigation by police, the Supreme Court S.M. Sikri, V. Bhargava and C.A.
Vaidialingam, JJ) in S.N. Sharma v. Bipen Kumar 1970 Crl.L.J.764 , observed as follows:
It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a
cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High
Court under Art. 226 of the Constitution under which if the High Court could be convinced that the power of investigation has been exercised by a
Police Officer malafide the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.
The view as expressed above was reiterated in State of Bihar and Another Vs. J.A.C. Saldanha and Others, wherein the apex Court held that
unless extra-ordinary cases of gross abuse of power by those in charge of the investigation is made out, the court should be quite loath to interfere
at the stage of investigation. It went ahead and further said that mala fide or bias of an informant is of a secondary importance, if at the trial
impeccable evidence disclosing the offence has been brought on record. In State of Bihar and Another Vs. P.P. Sharma, IAS and Another, , J.,
observed:
The question is whether, the impugned actions would offend Article 21 of the Constitution. Article 21 assures every person right to life and
personal liberty. The word personal liberty is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen.
Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law the
Constitution. The investigator must be alive to the mandate of Art. 21 and is not empowered to trample upon the personal liberty arbitrary, though
the Code gives unfettered power to investigate into the suspected cognizable offence imputed to an accused. The gravity of the evil to the
community resulting from anti-social activities or commission of the grave crime by itself would not give carte blanche right or power to the
investigator to invade the personal liberty of a citizen except in accordance with the procedure established by law and the Constitution. The
observance of the procedure, therefore, is an assurance against wanton assaults on personal liberty.
An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when
he is actuated by malafides. But as stated the accused at the earliest should bring to the notice of the Court of the personal bias and his reasonable
belief that an objective investigation into the crime would not be had at the hands of the investigator by pleading and proving as of fact with
necessary material facts. If he stands by till the charge-sheet was filed, it must be assumed that he has waived his objection. He cannot turn down
after seeing the adverse report to plead the alleged malafides. Equally laying the information before the Station House officer of the commission of
cognizable crime merely sets the machinery of the investigation in motion to act in accordance with the procedure established by law.
In Sheonandan Paswan v. State of Bihar 1987 Crl.L.J.793 Bhagwati C.J., expressed,
it is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become
vitiated on account of malafides or political vendetta of the first informant or the complainant.
The view expressed in State of Haryana v. Bhajan Lal 1987 Crl.L.J. 527 , by their Lordships of the Supreme Court (S. Ratnavel Pandian and K.
Jayachandra Reddy, JJ) may be referred to as the last one in this regard. The facts of this case may, succinctly be stated for the better appreciation
of the principles evolved in the best of fashion possible. Chi. Bhajan Lal was a Minister in 1977 when Chi. Devi Lal was the Chief Minister of
Haryana State, and he became the Chief Minister of the State of Haryana in 1982-87. During the initiation of this criminal proceeding against him,
he was the Union Minister for Environment and Forests, Government of India. In the general election to the Legislative Assembly of Haryana State
in June 1987, Smt. Jasma Devi, wife of Chi Bhajan Lal, contested from Adampur constituency on being sponsored by the Congress (I) Party as
against Mr. Dharam Pal who was a nominee of the Lok Dal. Smt. Jasma Devi won the election and Mr. Dharam Pal presented an election petition
challenging her election on a variety of grounds. Chi Devi Lal also contested on Lok Dal''s ticket in a different constituency and became successful
and was the Chief Minister of Haryana State in 1987. It seems that after the election, there were a number of criminal proceedings between the
parties one of which was a criminal prosecution against Dharam Pal under S. 307 I.P.C. registered in Adampur police station. On account of
political enmity and institution of number of criminal cases and counter cases, there was bad blood between Chi. Bhajan Lal and Chi. Devi Lal.
While so on 12.11.1987 Mr. Dharam Pal presented a complaint before Chi. Devi Lal, making serious allegations against Chi. Bhajan Lal to the
effect that before 1969, Chi. Bhajan Lal was a man of ordinary means, and after he was inducted as a Minister and particularly after he became
Chief Minister, he accumulated huge properties worth several crores of rupees in the names of his family members, relations and persons close to
him by misusing his power and position and undervaluing the market price, and Mr. Dharam Pal cited 20 independent allegations, and ultimately
prayed that investigation should be directed and appropriate action be taken against Chi. Bhajan Lal. On such complaint, the office on Special
Duty in the Chief Minister''s Secretariat made an endorsement on 12.11.1987 in Hindi, the translation of which reads on has seen. For appropriate
action and marked the same to the Director General of Police, who in turn made an endorsement on 12.11.1987 itself reading, ''please look into
this take necessary action and report'' and marked it to the Superintendent of Police, Hissar. The said complaint along with the above
endorsements was put up on 21.11.1987 before the Superintendent of Police who on that day itself made an endorsement reading, ''Please
register a case and investigate. A case was registered under sections 161 and 165 I.P.C. and S.5(2) of the old Act and investigation was taken up.
W.P. No. 8172 of 1987 was filed before the Punjab and Haryana High Court for quashing the criminal proceedings on manifold grounds inclusive
of want of jurisdiction for the police to commence and continue investigation as a consequence of non-disclosure of cognizable offence on the
averments in the first information report and malafides. The Division Bench of that Court upheld those grounds and quashed the proceedings and
directed Mr. Dharam Pal to pay costs to Chi. Bhajan Lal. The matter was further agitated in appeal by the State of Haryana before (sic). In the
backdrop of such factual (sic) with the question of malafides in all its facts, their Lordships of the Supreme Court, held,
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the Court to act according to its whim or caprice.
It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given situation false and vexatious charges of corruption and venality
may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character injuring his
reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of
the complainant, such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party?
The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions
of the Indian Penal Code - namely u/s 182 or 211 or 500 besides becoming liable to be sued for damages.
Reverting to the present case, the allegations made in the complaint, in our considered opinion, do clearly constitute a cognizable offence
justifying the registration of a case and an investigation thereon and this case does not fall under any one of the categories of cases formulated
above calling for the exercise of extra-ordinary or inherent powers of the High Court to quash the F.I.R. itself.
112.
113.
No doubt, there was no love lost between Chi. Bhajam Lal and Dharam Pal. Based on this strained relationship, it has been then emphatically
urged by Mr. K. Parasaran that the entire allegations made in the complaint due to political vendetta are not only scurrilous and scandalous but also
tainted with mala fides, vitiating the entire proceedings. As it has been repeatedly pointed out earlier the entire matter is only at a premature stage
and the investigation is not yet proceeded with except some preliminary effort taken on the date of the registration of the case, that is, on
21.11.1987. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the court can
come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, we are sure, the
investigation will say so. At this stage, when there are only allegations, and recriminations but no evidence, this Court cannot anticipate the result of
the investigation and render a finding on the question of malafides on the materials at present available. Therefore, we are unable to see any force in
the contention that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that Dharam Pal has
laid the complaint only on account of his personal animosity that, by itself, will not be a ground to discard the complaint containing serious
allegations which have to be tested and weighed after the evidence is collected.
Reverting to the facts of the instant case, malafides and political vendetta, as alleged by S. Thiruvnavukkarasu, had been emphatically denied
by Selvi J. Jayalalitha. From such assertion and denial an issue has arisen which cannot at all be decided without the adduction of evidence in that
regard, which feat if at all is capable of being performed only before the trial court.
Turning to malafides on the part of the Civil and police personnel connected with the institution of criminal proceedings, as adverted to above
S. Thirunavukkarasu did not attribute the existence of any personal animosity or malice on their part and what he had stated was that malice in law
had to be inferred from their action. To such a contention, I am unable to be persuaded in the facts and circumstances of the case. It is not as if the
Housins Secretary acted in a hurly-burly fashion while lodging the complaint, without any basis whatever. The sordid fact is that, as stated earlier,
on account of the receipt of spate of petitions in April 1989, levelling grave charges of corruption against S. Thirunavukkarasu in the matter of
sanctioning plans, granting exemption u/s 113 of the Town and Country Planning Act the erstwhile Government ordered a preliminary enquiry by
the Inspector General of Police, Crimes. After probing into the matter, the Inspector General of Police submitted a report in August 1989 stating
that there were prima facie materials going to the proof of the alleged corrupt practices amounting to criminal misconduct. The matter did not stop
there. A further detailed probe was ordered to be made again by the then Inspector General of Police, Crimes, in October 1989. The further
probe revealed startling details of large scale corruption to the tune of over Rs.21 crores. No responsible Government, on coming to know of such
revelation can remain quiet and there is no wonder in the Government, accepting the report, and directing institution of proceedings through the
medium of the Secretary, Housing and Urban Development Department, who lodged a complaint before the Inspector General of Police, Crimes.
The Secretary, Housing and Urban Development Department, as a loyal Government servant did his job admirably in laying the complaint by
culling out all the relevant materials from the report of the detailed probe. By such act, he cannot be stated to have committed any sin and he had
merely discharged his lawful duty, which if not done would amount to gross dereliction of duty.
No doubt true it is that there is a Vigilance and Anti-corruption Cell in the State of Tamil Nadu. The failure to refer the spate of petitions to the
said Cell is of no consequence. The reason is obvious. The entrustment of investigation is an executive function of the State, as had been
proclaimed by various High Courts and the apex Court (vide AIR 1945 18 (Privy Council) It is therefore competent for the Government for the
entrustment of probe or investigation to any agency. In this view of the matter, no foul can be smelt or found by the entrustment of the probe to the
Inspector General of Police, Crimes. The puzzling factor to be taken note of here is that such entrustment had been made by the Government then
in power. There is no wonder that further detailed probe was ordered to be made to the same agency which made the initial probe. If the probe
was ordered to be made by a different agency although the Government was legitimately entitled to do so as a matter of right-then, in such a
situation, it could be stated that all was not well with the Government, in the sense of such a course having been resorted to be taken with some
ulterior motive. But such is not the situation here. Further, it may be stated here, as observed by the apex Court, that though there is no rule of law
requiring a preliminary inquiry in the case of prosecution of public servants for dishonest misdemeanour amounting to criminal misconduct and other
related offences, yet rule of prudence requires such a probe to be made and that had been superbly done.
No period of limitation whatever had been prescribed for launching the prosecution for the commission of offences under the old Act since
they are grave offences committed against the Society as such. Therefore, delay caused in launching prosecution is (sic) a part, delay in launching
necessarily be explained even at the time of lodging the first information report and it can as well be explained at the time of filing the final report
before Court.
Top of all, the prima facie materials disclosed by the first information report constituting cognizable offence falling under the relevant provisions
of the Indian Penal Code and the Old Act, were there for the investigating agency to promptly act by the registration of a case. The moment such a
report landed in the hands of the Deputy Superintendent of Police, Crime Branch, CID, after a smooth sail through the Inspector General of Police
and the Superintendent of Police, C.B., C.I.D., it was incumbent upon him to register the case as mandated by the sanguine provisions adumbrated
u/s 154 Cr.P.C. and the registration of the case with all promptitude by him cannot at all be stated to have been done otherwise than in accordance
with the provisions of law.
41.Further, the sequence of events that followed right from the lodging of the first information report on 15.7.1992 till arrest and production of S.
Thirunavukkarasu before the Special Judge, prima facie appear to wear a credible look as respects the treatment given to S. Thirunavukkarasu
befitting his status and dignity as an Ex. Minister and present Member of Legislative Assembly. Suffice for me to say this much and nothing more,
without making any reference to the controversial aspects urged by either side.
In such state of affairs, it cannot be stated that there are materials on record to show that the prosecution had been initiated as a result of
malice in law on the part of the informant or the investigating agency. Even assuming for argument sake that what had been stated by S.
Thirunavukkarasu as respects malafides is true, it cannot at all be stated that the criminal proceedings initiated against him, which is based on the
plethora of prima facie materials disclosing commission of cognizable offences of a serious nature, falling under the relevant provisions of the Indian
Penal Code and the Old Act, and giving the necessary and requisite power to the Investigating Agency to commence, continue the investigation
and collect materials for the formation of opinion to be reflected in the final report to be filed u/s 173(2) Cr.P.C. will stand vitiated on account of
malafides or political vendetta as alleged by S. Thirunavukkarasu.
Appropriate it is at this juncture to make a reference to the arguments advanced and comments and conclusion arrived at by their Lordships at
the Supreme Court in State of Haryana v. Bhajan Lal 1992 Crl.L.J.527 as respected the observation made by the learned Judges of the Punjab
and Haryana High Court before parting with their conclusion.
The learned Judges of the High Court before parting with their conclusions not being ''able to resist temptation'' of making an observation with
a textual passage which is more or less suggestive of an advice have expressed as follows:
''Besides what has been said and observed above, before parting with this case, we have not been able to resist the temptation of saying that every
politician in Haryana maybe the Chief Minister or otherwise, should not while holding office act on the maxim, ''Everything is fair in love and war''
but should be sanguine and careful to mete out to his predecessor, a treatment in the words of Porus, uttered while in chains, on being brought
before Alexander the Great, ''a treatment which a king should mete out to another king'' because it is often said as you sow, so shall you reap!''
Mr. Rajinder Sachar and Mr. R.K. Garg submitted with strong intensity of conviction that the above observation of the learned Judges should
not be countenanced because if such observations, especially in the context of this case receive judicial recognition, it will lead only to the
catastrophe of our democratic system to the detriment of the welfare of the country and if such observations are accepted then every successor
Government should bury its head like an ostrich thereby freely allowing the malfeasance and misfeasance of the former government to go
unnoticed, un-rectified and the offenders un- punished. According to them there is absolutely no material for holding that there was any campaign
of vilification for political gain based on personal animus by the successor Government as against the outgoing Government, particularly when the
criminal proceedings are initiated by an individual.
To buttress their submission, they relied on the following decisions dealing with similar contentions attacking the institution of criminal
proceedings characterizing them as the outcome of political vendetta. Those observations being - (1) P.V. Jagannath Rao and Others Vs. State of
Orissa and Others, (2) Krishna Ballabh Sahay and Others Vs. Commission of Inquiry and Others, ; (3) Sheonandan Paswan Vs. State of Bihar
and Others, ; (4) Sheonandan Paswan Vs. State of Bihar and Others, and (5) A.R. Antulay Vs. R.S. Nayak and Another,
It would be appropriate to refer to the observation made by this Court in two of the above decisions.
In Krishna Ballabh Sahay and Others Vs. Commission of Inquiry and Others, Hidayathullah C.J. Speaking for the constitutional Bench has
pointed out;
It hardly needs any authority to state that the inquiry will be ordered not by the Minister against himself but by some one else. When a Ministry
goes out of office, its successor may consider any glaring charges and may, if justified, order an inquiry. Otherwise, each Ministry will become a
law unto itself and the corrupt conduct of its Ministers will remain beyond scrutiny.
In A.R. Antulay Vs. R.S. Nayak and Another, Sabyasachi Mukharji, J. (as he then was) speaking for himself and two other learned Judges
expressed his opinion on a similar issue in the following words
we must remind ourselves that purity of public life is one of the cardinal principles which must be upheld as a matter of public policy. Allegations of
legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution. Even if he
has been wronged, if he is allowed to be left in doubt that would cause more serious damage to the appellant. Public confidence in public
administration should not be eroded any further. One wrong cannot be remedied by another wrong.
We feel that the following observation made by Krishna Iyer J. in State of Punjab and Another Vs. Gurdial Singh and Others, may be
recapitulated in this connection, that being:
If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.
In the light of the above decisions of this Court, we feel that the said observations made in the impugned judgment are unwarranted and the
historical ancedote is out of context and inappropriate. We are afraid if such a view is to be judicially accepted and approved, then it will
tantamount to laying down an alarming proposition that an incoming Government under all circumstances, should put its seal of approval to all the
commissions and omissions of the outgoing Government ignoring even glaring lapses and serious misdeeds and the deleterious and destructive
consequences that may follow therefrom. Hence we are constrained to express our disapproval since the text, tenor and tone of the above
observations leave us with the feeling that such misplaced sympathy indicated therein appears to have considerably weighed with the learned
Judges in taking the extreme step in quashing the First Information Report. We do not like to make any more comment except saying that as we
have pointed out in our exordial note, in our democratic polity where the ''Rule of Law'' reigns, no one - however highly placed he may be can
claim immunity, much less absolute immunity from the law, but he is always under the law.
Before inscribing the final epitaph verdict, I may state that at times popular belief often brought into existence in any manner whatever - means
good or otherwise - is belied by judicial pronouncements of Courts, for which category the case on hand is a glaring example, for the obvious
reason of unbiased judicial gaze and vision and clair voyantmental eye penetrating and finding out the false presentation of reality and reflecting an
opinion revealing the real state of affairs on the materials available on record, in a bid to uphold and maintain the rule of law and not men.
For the reason mentioned above, Crl.O.P.Nos.10860, 10904 and 11683 of 1992 deserve to be dismissed and they are accordingly
dismissed. Cr.O.P.No.9283 of 1992 deserves to succeed and is accordingly allowed. The impugned order of the Special Judge is set aside. The
F.I.R. in crime No. 16 of 1992 on the file of the Deputy Superintendent of Police, Crime Branch, CID, Madras 4, is ordered to be restored to the
file of the Special Judge. Investigation can commence and continue in a bid to collect materials for the formation of an opinion to be reflected in the
final report to be filed in accordance with law.