'Visible Collusion With Investigating Officer': Madras High Court Quashes Appointment Of Government Pleader Accused Of Giving Death Threats

Concluding that there has been visible collusion between the investigating officer and an advocate who was accused in a criminal case, Madras High Court has set aside the appointment of the latter as a Government Pleader for a District Munsif Court in Periyakulam.

Justice S.M Subramaniam observed that constitutional courts have time and again repeated that public posts are to be filled up only with women and men of integrity and honesty.  Therefore, the single judge bench expressed its strong disapproval about the conduct of the investigating officer and the respondent government pleader.

"To cover up the misdeeds, the Police has conducted a corrupt investigation and deleted the name of the sixth respondent from the charge sheet without assigning any reason", the court noted.

By relying on two reports of the Judicial Magistrate where the case proceedings were pending, the Madurai Bench inferred that there were materials available for proceeding against the accused advocate. Even then, his name was deleted from the list of accused by the investigating officer without furnishing any reason. Moreover, the police never served the summons and the advocate, who is now a government pleader, never even appeared before the court though he was accused in the criminal case.

"...Contrarily, the sixth respondent made an attempt to pretend as if he is not the accused in the criminal case and filed a quash petition before this Court by his wife and mother, who all are other accused. Therefore, this Court is of the opinion that the conduct of the sixth respondent throughout with reference to the complaint given by the petitioner and the manner in which the criminal case was dealt with by the Police Authorities are not satisfactory", the court remarked.

The petitioner was another advocate who alleged that the government pleader, along with his wife and mother, threw a knife on the glass panel of the petitioner's office and gave him death threats. He alleged before the High Court that the respondent advocate is not eligible to hold the post of Government Pleader in light of the criminal case pending against him on the file of Judicial Magistrate, Theni.

The Additional Advocate General and the respondent advocate's counsel argued that the petitioner's case was filed due to personal vengeance and pointed out that both are relatives and practising lawyers. They tried to establish that the wife and mother of the sixth respondent alone have been charge-sheeted by the Police based on the investigation conducted. The sixth respondent has never been the accused in the criminal case, it was submitted. According to them, the Judicia Magistrate unnecessarily issued summons to the current Government Pleader even though the charge sheet is against the wife and the mother.

However, the court was not convinced by the submissions made by the respondents and noted that there was no satisfactory explanation for not issuing the mandatory notice to the de facto complainant under Section 173(2)(ii) Cr. P.C and not listing any reason for deletion of the name of the advocate in the charge sheet filed. The court also relied on the case-law of Alagarsamy.P. vs. State of Tamil Nadu (1999) to bolster the settled position that notice is mandatory under the Criminal Procedure Code.

"...The manner in which the referred charge sheet was filed and even after passing of order for re-investigation by the learned Judicial Magistrate, Theni, the Police filed charge sheet only as against the wife and mother of the sixth respondent and at that point of time, the learned Judicial Magistrate found that as per the charge sheet filed by the Police, there is absolutely no reason for the deletion of the sixth respondent from the list of accused persons. The Investigating Officer has not recorded any reason for deletion", the court noted.

The court also added that the Theni Superintendent of Police has also failed to take due care while recommending the advocate for the post of government pleader. The Superintendent did not verify the antecedents of the accused and the status report filed before the High Court was also a reiteration of facts available in police records. The court chastised the Superintendent for not examining if there has been any collusion between the investigating officer and the advocate with respect to the criminal case even when the court specifically instructed him to.

"It is needless to state that when the Investigating Officer is of the opinion that the name of the accused is to be deleted from the charge sheet, sufficient reasons must be recorded. The reasons must be supported with the facts, circumstances and evidences investigated. Therefore, the investigation, which is a live link for filing charge sheet, must contain reasons for the deletion of the name of the accused person...", the court noted since the magistrate mentioned there were pria facie materials against all accused and there was no reason for deletion of respondent advocate's name.

While mentioning the judiciary's power to control administrative action and the issue of Quo Warranto, the court added that even some of the candidates who have been acquitted in criminal cases are not appointed to the post of Grade-II Police Constable in Tamil Nadu Police Service. Since those are the circumstances, the court underscored that independent assessment by Selection Committee for appointment to public posts are allowed even if someone is acquitted in a criminal case. Therefore, the court noted that the Government Pleader has no right to hold the post on account of his involvement in the criminal case.

"Thorough verification of antecedents, character, conduct, suitability and eligibility of the candidates are to be made and there should not be any compromise in this regard and the Authorities concerned are bound to verify these aspects and submit a report for the purpose of appointing a person to the public post", the court added.

The court concluded that the antecedents, character, suitability, eligibility and pendency of the criminal case against the government pleader have not been verified properly. According to the court, the Principal Secretary (Home Department) who issued the government order merely relied on the reports submitted/ recommendations made by competent authorities and the department cannot be faulted for the same.

While allowing the writ petition, the court quashed the Government Order in G.O.(D) No.1176, Home (Courts. VIA) Department dated 13.10.2021 as far as the appointment of the respondent advocate, S.P.M.Ariff Rahuman, is concerned.

Case Title: M.A.M Raja v. The Special Personal Assistant to Minister for Law & Ors.

Case No: W.P.(MD) No.3305 of 202

Citation: 2022 LiveLaw (Mad) 101

Appearance: For Petitioner: Mr M.A.M.Raja, Party-in-Person

For Respondents: Mr Veera.Kathiravan, Additional Advocate General assisted by Mr A.K.Manikkam, Special Government Pleader for R4, R5 & R7 , Mr M.Kannan for R6

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