As per the case facts, complaints were filed against a former Cabinet Minister with the Directorate of Vigilance and Anti-Corruption, and a criminal petition was also filed in the High ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 867 of 2022
(Arising out of SLP (Crl.) No. 9161 of 2021)
S.P. VELUMANI … APPELLANT
VERSUS
ARAPPOR IYAKKAM AND ORS. … RESPONDENTS
JUDGMENT
N.V. RAMANA , CJI
1. Leave granted.
2. This appeal is filed against the impugned order dated
08.11.2021 passed by the High Court of Madras in Writ
Petition No. 34845 of 2018.
3. The brief facts necessary for adjudication of this dispute are
as follows: the appellant was a Cabinet Minister in the State
of Tamil Nadu from 2014. On 11.09.2018, one Mr. R.S.
Bharathi filed a complaint with the Directorate of Vigilance
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and AntiCorruption. He also filed a criminal petition before
the Madras High Court, being Crl.O.P. No. 23428 of 2018.
On the very next day, respondent No.1 filed a complaint
before Director, Directorate of Vigilance and AntiCorruption
and SP, AntiCorruption Bureau, CBI. As no action was
forthcoming by the aforesaid Authorities, respondent No.1
filed a writ petition registered as WP No. 34845 of 2018 before
the High Court seeking, inter alia, a mandamus directing the
Director, Directorate of Vigilance and AntiCorruption to
register an FIR on the basis of the complaint lodged by him
and to constitute an SIT for the purpose of investigation. It
may be necessary to note that both, the writ petition and
Crl.O.P., were tagged and heard together.
4. Broadly, the allegation against the appellant is that while he
was serving as a Minister, he is alleged to have misused his
powers to influence the tender process and ensured that
tenders were awarded to his close aides.
5. When the aforesaid writ petition was listed for the first time
before the High Court, the High Court issued notice and
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directed the respondents therein to file their counter
affidavits. On 18.10.2019, when the aforesaid writ petition
came up for hearing, the High Court passed following order:
“13. In the light of the apprehension
expressed by the learned counsel for the
petitioner that the 4
th
respondent is one of
the senior Ministers in the Cabinet and the
investigation is being carried by an Officer
who is in the rank of the Deputy
Superintendent of Police, this Court is of the
considered view that the preliminary enquiry
hereinafter shall be carried on by Ms. Ponni,
IPS, Superintendent of Police, Directorate of
Vigilance and AntiCorruption and the
progress being made in the preliminary
enquiry, shall be monitored by the Director
of Vigilance and AntiCorruption.
14. The Director of Vigilance and Anti
Corruption shall file the Status Report as to
the progress being made in the preliminary
enquiry, with supporting documents in
sealed cover for perusal of this Court.”
6. Accordingly, on 01.11.2019, a status report was produced
before the High Court. On perusal of the aforesaid report, the
High Court granted time to complete the preliminary enquiry.
7. On 16.12.2019, the Investigating Officer appointed by the
High Court completed the preliminary enquiry and submitted
a final report to the Director of Vigilance and AntiCorruption.
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In view of this, the High Court directed the Director of
Vigilance and AntiCorruption to produce the aforesaid
enquiry report in a sealed cover before the next date of
hearing.
8. It is important to note that in the meanwhile on 17.02.2020,
the State Government filed an application being W.M.P. No.
4747 of 2020 in W.P. No. 34845 of 2018, before the High
Court indicating as under:
“9. It is submitted that these facts are being
brought on record and it is the submission of
the petitioner herein that after following all the
process contemplated by Law, the Government
of Tamil Nadu decided to accept the report on
the Preliminary Enquiry, which had come to
the conclusion that the commission of
cognizable offence had not been made out.
xxx
In the light of the above, it is prayed that this
Hon’ble Court may be pleased to take the
above facts on record and dispose of the writ
petition as having become infructuous and
pass such other order/orders as this Hon’ble
Court may deem fit and proper in the
circumstances of the case and thus render
justice.”
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9. Accordingly, on 19.02.2020, the High Court passed the
following order in the captioned application filed by the State
Government:
“3. In the light of the said development, the
petitioner/2
nd
respondent in the writ petition
prays for appropriate orders for disposing of
the writ petition as having become
infructuous.
4. Dr. V. Suresh learned counsel appearing for
the 1
st
respondent/writ petitioner prays for
time to file the counter affidavit.
5. The decision taken by the Vigilance
Commission accepted by the Government shall
be submitted before this court in a sealed
cover.”
10.As the matter stood thus, there was a change in the political
dispensation of the State Government. Interestingly, the
State, while relying upon a CAG report, subsequently
recanted from its earlier stand. The High Court, without
applying its mind, passed the following order on 19.07.2021:
“3. It is submitted on behalf of the State that
the performance of the contractors and the
contracts in general engaged the attention of
the Comptroller and Auditor General and
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adverse comments have been made. The State
says that it will investigate into the matter to
ensure that those involved are taken to task.
For the purpose of conducting investigation,
the State seeks some time.
4. Let the matter appear in the second week of
October, 2021. The State should spare no
effort in getting to the bottom of the matter
and proceed against those found to be
responsible for the irregularities.
5. Counteraffidavit may be filed by the
respondents in the meantime.”
11.Relying on the aforesaid observations, the State registered an
FIR, being FIR No.16/2021 dated 09.08.2021, against 17
accused persons, including the appellant herein under
Section 120B r/w Sections 420 and 409 of the IPC and
Section 13(2) r/w Sections 13(1)(c) and 13(1)(d) of the
Prevention of Corruption Act, 1988 r/w Section 109 of the
IPC.
12.The appellant herein filed an application being W.M.P. No.
24569 of 2021 in the writ petition pending before the High
Court, seeking a copy of the preliminary Enquiry Report
dated 18.12.2019 and associated documents submitted by
Ms. R. Ponni, Superintendent of Police, Directorate of
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Vigilance and AntiCorruption as well as the decision taken
by the Vigilance Commission.
13.The High Court vide impugned order dated 08.11.2021, while
dismissing the appellant’s application, disposed of the entire
case and observed as under:
“6. It may do well to decline the request made
by the fourth respondent in W.P. No.34845 of
2018 to make over a copy of the preliminary
report to the fourth respondent immediately.
The law has to be allowed to take its own
course. Upon completion of the investigation,
a report will no doubt be filed and such report
should be filed within the next ten weeks, be it
in the form of a chargesheet or as a final
report. In course of the material being made
over to the fourth respondent under Section
207 of the Code of Criminal Procedure, 1973, if
the preliminary report forms the basis for any
of the charges sought to be framed, a copy of
such preliminary report may be made over to
the fourth respondent and it will also be open
to the relevant criminal court to consider
whether the petitioner may also obtain a copy
thereof.
7. It is made clear that the observations in
course of the orders should not count against
the fourth respondent if, ultimately any
chargesheet were to be filed against him or
any charges framed. In view of the fact that
the investigation has almost come to an end
and since the chargesheet or final report is to
be filed within the next ten weeks, no useful
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purpose would be served in keeping these
petitions alive.
8. Accordingly, W.P. No.34845 of 2018 and
Crl.O.P. No.23428 of 2018 are closed.
Consequently, W.M.P. Nos.4747 of 2020 and
24569 of 2021 are closed.”
14.Aggrieved by the aforesaid order, the appellant has filed the
present appeal by way of Special Leave. It may not be out of
place to note that the appellant has also filed
Crl.M.P.No.56512/2022 before this Court seeking quashing
of the aforesaid FIR.
15.The learned Senior Counsel appearing for the appellant
contended orally and through written submissions as under:
(i)That there is no reason for not making over the documents
to the appellant as the State has not claimed that the
documents are privileged.
(ii)The reliance on two reports by the Comptroller and Auditor
General of India (hereinafter “CAG”) by the State of Tamil
Nadu is misplaced as there is no criminality disclosed in the
aforesaid report.
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(iii)That FIRs cannot be lodged solely on basis of the CAG
report.
(iv)The appellant should have been given an opportunity to
counter the allegations, and the State could not have
registered the FIR in a haste, based on certain general
observations by the High Court.
(v)This case is a clear case of regime revenge wherein change
in political dispensation has resulted in the State recanting
its initial position to abuse the process against the
appellant herein.
16.On the contrary, the learned Senior Counsel appearing on
behalf of the State of Tamil Nadu has contended that:
(i)There is no provision of law which mandates disclosure of
preliminary Enquiry Report before the stage contemplated
under Section 207 of the Cr.P.C. However, the accused will
be given the relied upon documents at the time of framing
charges, wherein he can take appropriate legal recourse.
(ii)The FIR was filed based on a fresh enquiry conducted in the
light of the CAG report and not solely based on the
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preliminary Enquiry Report filed in the aforesaid writ
petition.
17.At the outset, it may be noted that an application was filed
before us seeking quashing of the subsequent FIR. However,
the learned Senior Counsel appearing on behalf of the
appellant has not pressed the same before us. He has limited
his submissions only to the aspect concerning nondisclosure
of the preliminary enquiry report of Ms. Ponni, IPS,
Superintendent of Police, Directorate of Vigilance and Anti
Corruption and the ancillary documents. Accordingly, we
intend to deal with this aspect alone.
18.Having heard learned counsel for the parties and on perusing
the documents available on record, we may note that the
facts of this case are clear. Initially, a private complaint was
filed by respondent No.1 and thereafter, a writ petition was
filed by him seeking investigation into the allegations made in
the complaint. When the matter was taken up by the High
Court, it directed an enquiry by a responsible officer, Ms.
Ponni, Superintendent of Police, Director of Vigilance and
AntiCorruption. Accordingly, the Court appointed officer
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submitted her preliminary enquiry report to the Director of
Vigilance and AntiCorruption, who in turn submitted a final
report before the High Court in a sealed cover. In the
meanwhile, the Government took a decision to close the case
based on the aforesaid report submitted by the Court
appointed officer. Rather than deciding this issue, the High
Court adjourned the matter by a month.
19.However, it appears that due to various reasons, the matter
could not be listed until 19.07.21. In the meanwhile, the
State Government had changed. In a turn of events, the
State Government went back on their earlier stand to close
the criminal case. Instead, the State Government submitted
before the High Court that they intended to conduct further
investigation in the aforesaid matter.
20.In our considered opinion, the High Court has committed a
patent error in not taking the matter to its logical conclusion.
Without considering the material before it, and by merely
relying on the submissions made by the learned counsel for
the State, the High Court has made sweeping observations
11
which are prejudicial to the appellant. It was the High Court
which had ordered that a preliminary enquiry be conducted
and a report be submitted by the special investigating officer.
However, once the enquiry was completed, the High Court
failed to even peruse the said report. Rather, the High Court
left the decision completely in the hands of the State
Government. Such an approach, as adopted by the High
Court in the present matter, cannot be countenanced in law.
21.It is a settled principle that the State cannot blow hot and
cold at the same time. When the State Government changed
its stand, the High Court neither provided the appellant an
opportunity to defend himself, nor sought a reasoned
justification from the State for having turned turtle. Although
the High Court directed the appellant to file a counter
affidavit in the writ proceedings, the State hastened to
register the aforesaid FIR on 09.08.2021.
22.It is noteworthy that the initial affidavit filed by the State was
categorical that they did not intend to pursue action against
the appellant herein. However, the subsequent change of
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stand by the State clearly contradicts the expectation brought
about by the initial affidavit. The principles of natural justice
demanded that the appellant be afforded an opportunity to
defend his case based on the material that had exonerated
him initially, which was originally accepted by the State.
23.Therefore, the only issue which requires this Court’s
consideration is whether the appellant herein is entitled to
the preliminary report in the present facts and
circumstances.
24.Learned counsel for the State has contended that the accused
would be entitled to access the report only after the
Magistrate takes cognizance in terms of Section 207 of the
CrPC. He has relied on In Re: Criminal Trials Guidelines
Regarding Inadequacies and Deficiencies v. State of
Andhra Pradesh & Others , (2021) 10 SCC 598 to contend
that the accused is entitled to seek documents only in terms
of Section 207 of the CrPC and any production of the
documents beyond the ambit of aforesaid section, is
untenable in law.
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25.On the other hand, the learned counsel for the appellant has
distinguished the present case on the fact that the
subsequent FIR was filed due to direct judicial interference.
26.We may note that the contention of the State may be
appropriate under normal circumstances wherein the
accused is entitled to all the documents relied upon by the
prosecution after the Magistrate takes cognizance in terms of
Section 207 of CrPC. However, this case is easily
distinguishable on its facts. Initiation of the FIR in the
present case stems from the writ proceedings before the High
Court, wherein the State has opted to reexamine the issue in
contradiction of their own affidavit and the preliminary report
submitted earlier before the High Court stating that
commission of cognizable offence had not been made out. It
is in this background we hold that the mandate of Section
207 of CrPC cannot be read as a provision etched in stone to
cause serious violation of the rights of the appellantaccused
as well as to the principles of natural justice.
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27.Viewed from a different angle, it must be emphasized that
prosecution by the State ought to be carried out in a manner
consistent with the right to fair trial, as enshrined under
Article 21 of the Constitution.
28.When the State has not pleaded any specific privilege which
bars disclosure of material utilized in the earlier preliminary
investigation, there is no good reason for the High Court to
have permitted the report to have remained shrouded in a
sealed cover.
29.In view of the aforesaid discussion, and taking into
consideration the peculiar facts of the instant case,
particularly the fact that the High Court had ordered an
enquiry and obtained a report without furnishing a copy
thereof to the appellant and unceremoniously closed the writ
petition, we deem it appropriate to issue the following
directions:
a.The High Court is directed to supply a copy of the report
submitted by Ms. R. Ponni, Superintendent of Police
along with the other documents to the appellant herein.
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b.Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428
of 2018 are restored on the file of the High Court of
Madras.
c.The High Court is directed to dispose of the cases on
their own merit, uninfluenced by any observation made
herein.
d.Although the prayer for quashing of the FIR was not
orally pressed before this Court, however, the appellant is
granted liberty to seek appropriate remedy before the
High Court.
30.Accordingly, the appeal is disposed of on the above terms.
Pending application, if any, stands disposed of.
...........................CJI.
(N.V. RAMANA)
...........................J.
(KRISHNA MURARI)
...........................J.
(HIMA KOHLI)
NEW DELHI;
MAY 20, 2022.
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