'Something Very Rotten In Special Court': Madras HC Takes Up Another Suo Motu Revision Against Discharge Of Ministers In Disproportionate Assets Case

Calling it another instance where the criminal trial is being derailed by persons who are at the helm of political power, Justice Venkatesh said that if the trend goes unchecked, the Special Courts meant for trial of cases against MPs and MLAs will become a playground for all sorts of condemnable practices handcrafted to subvert the criminal justice system.

“The person aggrieved here is the criminal justice system of the country. We, as a constitutional court, cannot let that happen. I don’t have anything against any person. But I’ll say that power corrupts everyone. There is a pattern about what is happening and this court has to step in. The normal person should know that this system is not for the powerful or for the person with contact and money but for the layman,” Justice Venkatesh said in court on Wednesday.

On examining trial records, he added that the Special Court at Srivilluputhur seemed to have “acted in tandem" to reduce the administration of criminal justice to a complete farce and that something is "very rotten" in the Special Court.

The allegation against Ramachandran is that he, along with his wife and friend accumulated wealth disproportionate to his sources of income while serving as a Minister for Health and later as Minister for Backward Classes in the DMK regime between 2006 and 2011. On a preliminary inquiry, DVAC found that a prima facie case was made out and the Minister and his wife were booked under the Prevention of Corruption Act.

In July 2023, DVAC however filed a final report saying that no offences were made out and accepting this, the Special Court discharged the Minister.

The allegation against Thangam Thenarasu is that while serving as a Minister for school education during the DMK regime from 2006-2011, he and his wife amassed disproportionate assets. Based on searches conducted in his residence in Virudhunagar and Chennai, a case was filed by the DVAC under PCA. However, after taking note of a final report saying that no offence was made out, the Special Court discharged him too in December 2023.

While the Court remarked that the accused, the prosecution and the Special Court appear to have acted in tandem, Advocate General R Shumughasundaram, however, requested it not to stigmatize the officers of the DVAC without hearing them.

The judge also said that a pattern was being observed in both discharge orders. However, AG submitted that courts often use boilerplate language. He added that though the suo moto would normally go to a different court, he wanted to make the submissions before Justice Venkatesh so that the court could appreciate the State's stand.

Self-Destruction Of Prosecution Case

The court noted that in both the cases Final reports had already been filed and the discharge petitions filed by the accused persons were kept pending for a long time. The court noted that initially the matter was dragged in connection with the Appointment of Special Public Prosecutor and later for hearing the arguments in discharge petition.

“It is also seen from the records that the learned counsel for the accused commenced marathon piecemeal hearings for over one year in the discharge petitions from 20.03.2020 till 09.04.2021. The Special Court appears to have liberally heard the discharge petition in instalments for over a year. Through the aforesaid collaborative effort of all concerned, the matter was successfully dragged on till the assembly elections in May 2021. In May 2021, there was a change in guard in the State and A1 was back in the saddle as the incumbent Minister for Disaster and Revenue Management. The stage was now set for the prosecution to self-destruct,” the Judge observed in Ramachandran’s case. Similar observation was made in Thenarasu’s case also.

The court noted that while the hearing in discharge petition was pending, the Inspector of Police, Vigilance and Anti-Corruption submitted an intimation for further investigation under Section 173(8) CrPC in which he said that based on new facts and documents produced by the accused in his discharge petition, further investigation was warranted in the interest of justice. The court further observed that accepting this stand, the Special Court, through an incomprehensible order allowed such further investigation.

“According to the Special Court “criminal ethics this court arriving at the truth as do real and substantial justice as well as effective justice to further investigation and supplement final report.” The Special Court ought to have known that criminals and ethics are strange bedfellows, and that tactlessly mixing them up would produce a deadly cocktail as has been done in this case. It should now be pointed out that on the very same day the Special Court had passed an identical order in Special Case No.20 of 2019 which was pending before it against another Minister Mr. T. Thennarasu and others,” the court observed.

Final Closure Report

Thereafter, the court noted that the IOs in both the cases filed a “final closure report” stating that no offence had been made out after further investigation. This, the court noted, in effect wiped out the earlier findings rendered in the final report. The court noted that the Special Court, instead of ascertaining the legality of the closure report, readily accepted the “final closure report” which was diametrically opposite the the final report and discharged the accused in exercise of powers under Section 239 of CrPC.

The court noted that the Code of Criminal Procedure allows the investigation agency to conduct a further investigation and file a supplementary final report under Section 173(8) CrPC. The court added that this further investigation was meant to supplement the earlier investigation but in the present case, while preparing a final closure report, a re-investigation was carried out which was impermissible.

“Thus, further investigation under Section 173(8) is, in essence, meant to supplement the earlier investigation. What has happened in this case is precisely the opposite. Under the guise of further investigation, IO Ramachandran instead of supplementing has supplanted the earlier report of IO Shyamala Devi not by consolidating but by nullifying the express findings therein. The net effect of the closure report of IO Ramachandran was that the earlier findings in the final report stood neutralized and wiped out as the accused were given a clean chit…There was nothing “further” about the “further investigation” of Ramachandran except the fact that it was designed to “further” the objectives of the accused,” the court said.

The court added that the report contemplated under Section 173(8) CrPC was neither a final report nor a closure report but only a supplementary report. Thus, Justice Venkatesh said that the investigating officer had “cooked up a cocktail hitherto unknown to criminal law by filing a “final closure report” purportedly under Section 173(8) Cr.P.C.”. The court added that by accepting the final closure report, the Special Court had engaged in a bizarre procedure unknown to criminal law.

“This was clearly mischievous since there can be only one final report under Section 173(2) Cr.P.C which in this case is the report of IO Shyamala Devi in 2012 on the basis of which cognizance was taken on 10.01.2013. It is, therefore, most curious that the Special Court entertained a hitherto unknown document called a “final closure report” and that too under Section 173(8) Cr.PC almost 10 years later in 2022 setting up a completely new case that no offence had been committed. The strange and bizarre procedure adopted by the investigation agency and acquiesced to by the Special Court is unknown to criminal law,” the court said.

Approach Of Special Court Illegal

Justice Venkatesh also noted that the approach of the Special Court was ex-facie illegal and that the court had no power to discharge the accused without assigning any reason. He added that the court had failed to give an independent reasoning in the order of discharge and was “literally playing the role of lady justice by blindfolding itself”.

“Equally surprising is the fact that the Special Court, while discharging the accused of the offences has simply set out the findings of the IO Ramachandran and has blindly handed down an order holding that there was no ground to proceed against the accused persons. There is not a shred of independent reasoning in the order of discharge. The Special Court decided to literally play the role of lady justice by blindfolding itself to the deliberate and devious plot that was unfurling before it. The approach of the Special Court can find few parallels and if such jugglery is to be emulated elsewhere, the Special Courts trying MP/MLA’s cases in this State would be writing a collective obituary to the cases under the Prevention of Corruption Act,” the court said.

Thus, finding that there were illegalities, the court said that it was a fit case to exercise revisional powers under Article 227 of the Constitution and Sections 397 and 401 of CrPC to prevent miscarriage of justice. The court thus issued notice to the accused persons and adjourned the case to September 20 2023.

Case Title: Suo Motu RC v Additional Superintendent of Police and others

Case No: Suo Motu Crl.R.C.No.1480 and 1481 of 2023