'Cruel Joke' : Madras High Court Questions 2012 Order Discharging Former TN Minister Paneerselvam; Says DVAC Was Doing Govt's Dirty Work
The Madras High Court has once again exercised suo motu revision against an order of the trial court discharging a politician in a criminal case.This time, former Tamil Nadu Chief Minister O.Paneerselvam is facing trouble with the High Court bench of Justice Anand Venkatesh expressing reservations about the order passed by Chief Judicial Magistrate/Special Judge, Sivagangai discharging him...
The Madras High Court has once again exercised suo motu revision against an order of the trial court discharging a politician in a criminal case.
This time, former Tamil Nadu Chief Minister O.Paneerselvam is facing trouble with the High Court bench of Justice Anand Venkatesh expressing reservations about the order passed by Chief Judicial Magistrate/Special Judge, Sivagangai discharging him and his family in a disproportionate asset case. Notably, the discharge order was passed a decade ago, on 03.12.2012.
It may also be noted that the same Judge had earlier exercised suo motu revision over the orders discharging TN Ministers K Ponmudy, KKSSR Ramachandran and Thangam Thenarasu.
Criminal justice system in this State subverted
Coming to the case of Paneerselvam, Justice Anand Venkatesh criticized the manner in which the entire proceedings were conducted and made scathing remarks against the Directorate of Vigilance and Anti-Corruption (DVAC). The Court observed that a "well-orchestrated modus operandi" was used in the case, whereby the DVAC, after the change of the government, filed a supplementary chargesheet, wiping out the first chargesheet, under the guise of further investigation and the prosecution withdrew the case citing the second chargesheet which exonerated the accused.
"Thus the modus operandi is now all too obvious. At the centre of the plot is the DVAC. When a political party comes to power in the State of Tamil Nadu the DVAC swoops down on the opposition and clamps cases of corruption. However, no prosecution for corruption ends in five years which is the life span of an elected Government in the State. Invariably, the opposition is voted back to power and the DVAC, like the puppets in the Muppets show, will have to perforce sing a different tune in tandem with its political masters. The strategy is to get the DVAC to do a further investigation the sole objective of which is to further the cause of the accused. In this way, self-serving investigation reports giving clean chits to the accused are presented as a fiat accompli under the garb of further investigation. The Special Courts, for reasons best known, fall in line and in their keenness to ape lady justice accept the bait of the DVAC without any serious probe. In this way, the accused is discharged, and the solemnity of a judicial proceeding before the Court is reduced to a cruel joke".
Justice Venkatesh said that he has noticed this pattern in other cases too such as the discharge orders in the cases of KKSSR Ramachandran and Thangam Thenarasu.
DVAC toeing Govt line to do dirty work
Calling the directorate “chameleons”, the court said that the DVAC was changing its stand according to changes in government.
“People manning the DVAC are expected to be independent. Unfortunately, the DVAC is becoming a chameleon and taking colour from the government depending on who is in power,” Justice Venkatesh said in open court on Thursday.
The Court said that the so-called further investigation report was nothing but a product of a diktat from the Government to the DVAC to terminate the prosecution.
"The DVAC toed the line and decided to do the Government’s dirty work", Justice Venkatesh said.
Background
The case against Paneerselvam was that while serving as the Revenue Minister and the Chief Minister of the state between 19.05.2001 to 21.09.2001 and 02.03.2002 to 12.05.2006, he had accumulated property and pecuniary resources disproportionate to his sources of income. A preliminary inquiry was conducted by DVAC and finding materials to proceed further, a case was registered under the Prevention of Corruption Act. Investigation was taken up and the then Speaker granted sanction to prosecute under the Prevention of Corruption Act. The court noted that the final report found the commission of the offence and that the accused had accumulated wealth which was 374% times disproportionate to the known sources of income.
The Chief Judicial Magistrate (Special Judge) had taken cognizance of the report on 30.07.2009. Through a Government Order, a Special Court was constituted at Madurai for cases under the Prevention of Corruption Act. In 2011, AIADMK came to power. Despite the constitution of a Special Court, the CJM Teni continued to detain the records and on 04.10.2011, allowed further investigation on an application filed by the accused persons themselves, which was unknown to the law.
Observing that the CJM court defied several rudimentary principles of criminal law, the court observed that the judge had gone on to observe that the accused was entitled to be heard before filing of the final report and before framing of charges. According to the court, this observation besides being incredulous, was completely unsustainable.
The court noted that when the case was transferred to the Special Court, the Special Judge smelt a rat and dismissed an application seeking the return of documents by the DVAC for further investigation saying that the order of further investigation was illegal.
Finding that their plans were foiled, the court noted that the accused then approached the High Court seeking transfer and the Madurai bench of Madras High Court, on 20.01.2012, transferred the case to CJM, Sivaganga, without even examining whether the grounds for transfer were bonafide.
On 03.12.2012, the CJM Sivaganga allowed the application filed by the Prosecution for withdrawal and discharged the accused.
Speaker Becoming Judge
The court observed that, in this case, curiously, the DVAC filed its final report before the Speaker instead of the Court and the speaker, sitting in judgment of the order of cognizance by the CJM concluded that there was no commission of offence and revoked the sanction.
“It requires nothing more than the aforesaid reasons (or the lack of it) to show that the so-called satisfaction expressed by the Speaker is a complete sham....The conclusions in the order of the Speaker leads this Court to ponder as to whether A1 O.Panneerselvam was under the impression that the Special Court at Sivagangai was temporarily functioning out of the Speaker’s Chamber at Fort St George. In any event, in view of the decision of the Hon'ble Supreme Court in D.L.Rangotha v. State of M.P, (2015 (12) SCC 733), the withdrawal of sanction was per-se without jurisdiction since the sanction once granted cannot be withdrawn/revoked,” the court observed.
The court also noted that the final report on further investigation relied on by the Speaker in his order and the one filed in court were different as both had different dates.
Wiping Out Earlier Proceedings
The court observed that while submitting the final closure report, the then Investigating Officer noted that the earlier final report had become infructuous. The court noted that this conclusion was grossly illegal since a report based on further investigation was only supplementary to the final report and could not replace the earlier report.
The court further noted that while filing an application seeking withdrawal from prosecution, the Public Prosecutor even went on to say that cognizance based on previous investigation reports had become infructuous.
“The aforesaid submission is, to say the least, bizarre and startling. Whether the Public Prosecutor was airing his complete ignorance on criminal law or whether it was a deliberate ploy to pull the wool over the eyes of the Special Court is a moot question. To say that the cognizance taken by the Court on a final report had become infructuous on account of a supplementary charge sheetunder Section 173(8) Cr.P.C is quite simply shocking. That the CJM, Sivagangai has actually accepted this incredible legal proposition is a reflection of the abysmal depths to which our Special Courts have sunk,” the court observed.
The court noted that this was another instance of a calculated attempt by those at the helm of political power to distort and subvert the course of criminal justice.
Delay No Bar To Proceed Against Criminals
The court noted that though the case was closed in 2012 itself, the facts disclosed grave illegality at every stage of the prosecution. The court also noted that mere delay was no ground to throw away a criminal case.
The court also noted that if, in spite of observing grave illegalities, failed to exercise its suo motu powers, it would cause a miscarriage of justice.
“It is clear that where the High Court fails to exercise its suo motu powers despite noticing glaring illegalities, it would be causing miscarriage of justice by perpetuating the illegalities. In the context of offences like the Prevention of Corruption Act, the duty of the High Court to ensure that there is no subversion of the criminal law is paramount,” the court observed.
Thus, finding prima facie materials to exercise powers under Section 397 and 401 CrPC and Article 227 of the Constitution, the court ordered notice to the Minister and directed the registry to place a copy of the order before the Chief Justice for information.
Case Title: Suo Motu RC v State
Case No: Suo Motu Crl RC No 1524 of 2023