“Have Opened A Can Of Worms”: Madras HC Judge On Two More Suo Motu Revision Against Ministers Discharge, Calls It An Institutional Problem

This time, Justice Anand Venkatesh has taken cognisance of the order acquitting former Backward Class and Minority Welfare Minister B Valarmathi and present Rural Development Minister of Tamil Nadu I. Periyasamy.

Calling it an institutional problem, the Judge on Friday said that case after case, the system had failed and now only god could save the institution.

“It's like I've opened a can of worms. Case after case, I'm becoming sick. The system has failed systematically. It's becoming shocking. You can give any interpretation but these are facts. I'm tired of looking at cases like this on a regular basis…It is an institutional problem. The system has failed. I do not know how much of this is going to help,” the Judge said in open court on Friday.

Adding that DVAC was becoming political, the Judge said that he did not want to pinpoint on DVAC officers as they might have been under pressure. The court also suggested that there should be some system in place in the State.

“We have to have some sort of system. DVAC have become politicians. I'm not trying to say anything against the officers, I don't know the type of pressure these officers have to go through,” the court said.

CASE AGAINST VALARMATHI

The case against B Valarmathi was that while serving as a Minister in the AIADMK cabinet between 2001 and 2006, she, along with her husband and sons had acquired substantial properties and pecuniary resources to the tune of Rs.1,70,34,871.

The court noted that in this case, like the pattern observed in previous suo-moto cases, the DVAC had proceeded against the former Minister and later, with a change in power and the accused coming back to power, the DVAC filed a petition for further investigation and did a complete volte face from the earlier stand taken in the charge sheet.

The court added that it was “strange and ironic” that the same Investigating officer who had filed the chargesheet had, after further investigation filed a counter affidavit saying that the accused had not acquired any property during the check period. The court added that it was unfortunate that a premier investigating agency had become a plaything in the hands of the politicians.

“It is, therefore, evident that after the change in power in the State in 2011, DVAC had, once again acted as the proverbial chameleon dancing to the tunes of the politicians in power. This is not the first time this Court has encountered this condemnable practice of the DVAC. There is a consistent pattern discernable in Suo Motu Crl.R.C.Nos.1480, 1481 and 1524 of 2023 as well. It is unfortunate that a premier investigation agency of the State has become a plaything in the hands of politicians,” the court observed.

Special Court Donning Role Of Chartered Accountant

The court also noted that while dealing with the discharge petitions filed by Valarmathi, the Special Court had in fact conducted a mini trial and donning the role of a Chartered Accountant enquired into the materials adduced by the accused, comparing it with the information provided by the DVAC and pronouncing a verdict on its merit.

The court added that the Special Court had gone on to say that the prosecution had not proved the charge against the accused, even though Court was merely dealing with a discharge petition and not a final hearing post trial. The court also noted that the Special Court had reached the conclusion largely based on income tax returns which itself could not be the basis for discharging the accused in a corruption case.

Final Opportunity To Accused

The court further noted that the most important reason that the Special Court gave for discharging the accused was that a final opportunity notice was not given before filing the final report. It was noted that though the Special Court had relied upon a decision of the High Court to say that non-issuance of final notice was gravely fatal to prosecution, this decision was reversed by the Supreme Court.

The court added that non-issuance of notice could not be a ground for discharging the accused under the Prevention of Corruption Act.

CASE AGAINST PERIYASAMY

The case against Periyamasy was that while serving as the Minister for Housing in the DMK cabinet between 2008 and 2009, he had conspired with other persons to illegally obtain a High Income Group Plot in the Mogappair Eri Scheme of the Tamil Nadu Housing Board.

The court noted that in this case also the accused were playing a “discharge game” by filing petitions one after the other and also approaching the High Court thus in effect halting the proceedings before the Trial Court. The court noted that in his first discharge petition, Periyasamy had contended that the entire prosecution was borne out of malice and that there were no materials to link him with the crime. Periyasamy had also claimed that the competent authority to grant sanction was the Governor and not the Speaker for prosecution under Section 19 of The Prevention of Corruption Act. However, the court noted that this petition was rejected by the Special Court, the High Court, and ultimately by the Supreme Court.

The court noted that though the trial was midway, Periyasamy again filed a discharge petition after a change in guard in the Special Court under Section 19 of the Prevention of Corruption Act raising the same ground. The court lamented that a special court, which was expected to possess working knowledge of criminal law, had entertained the petition and even went on to discharge Periyasamy.

‘It is shocking that the Special Court, which is expected to possess at least a working knowledge of criminal law and procedure, has entertained a petition under Section 19 of the Prevention of Corruption Act to discharge the accused knowing fully well that the provision did not deal with discharge at all,” the court said.

Gross Miscarriage Of Justice

The court added that the order of discharge suffered from several incurable legal blunders and that the Special Court could not have sat on appeal over its own order and undo it.

“This Court is also of the view that the order of discharge passed by the Special Court in Crl.M.P.No.4204 of 2023 suffers from several incurable legal blunders and illegalities which has resulted in gross miscarriage of justice. As stated supra, the earlier discharge petition raising an identical ground had been dismissed. The Special Court could not sit in appeal over its own order and undo the same that too after the earlier order had been affirmed by this Court and the Hon'ble Supreme Court,” the court noted.

The court also added that the Special Court had also discharged the accused after framing of charge though it was settled that a petition for discharge under Section 239 CrPC was not maintainable after framing of charge. The court also noted that at the time of taking cognizance, Periyasamy was only an MLA in the State Assembly.

Thus, observing that the court would be failing in its constitutional duty if it did not invoke its suo motu powers, the court issued notice to both parties and directed the registry to place the matter before the Chief Justice for further information.

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

Case No: Suo Motu Crl.R.C.No.1558 and 1559 of 2023