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TMI Blog2002 (1) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... India, any Criminal Court may issue a letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. (2) The letter of request shall be transmitted in such manner as Central Government may specify in this behalf. (3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter." "Section 173 Cr.P.C.: Report of police office on completion of investigation: - (1) Every investigation under this chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the documents referred to in sub-section (5). (8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 2.1. The petitioners in Crl.O.P.Nos.21969 and 22506 of 2001 are the accused A1 and A2 respectively in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, wherein, pursuant to a F.I.R. No.2-AC-2000, dated 2.9.2000, filed by the Superintendent of Police, Vigilance & Anti-Corruption, Special Investigation, Chennai (hereinafter referred to as the "respondent prosecution"), the petitioner in Crl.O.P.No.21969 of 2001, with due sanction accorded by the Governor of Tamil Nadu, in G.O.Ms.No.330, Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the names of Ms.N.Sassikala, Mr.Vn.Sudhagaran, and Ms.Ilavrasi, who are arrayed as A2, A3 and A4 respectively in the said Crime No. 13/AC/96, Head Quarters, on the file of the respondent prosecution, disproportionate to known source of income of the petitioner in Crl.O.P.No.21969 of 2001, during her tenure as Chief Minister from 1.7.1991 to 30.4.1996 (herein after referred to as the 'Check Period'), and accordingly, the petitioner in Crl.O.P.No.21969 of 2001 is facing trial in the Spl.C.C.No.7 of 1997 on the file of the learned Special Judge No.1/XI Additional Sessions Judge, Chennai (hereinafter referred to as the 'Designated Court'), for the said charges, along with Ms.N.Sassikala, Mr.Vn.Sudhagaran, and Ms.Ilavarasi, A2, A3 and A4 respectively, in Spl.C.C.No.7 of 1997 on the file of the Designated Court; (ii) Referring to the F.I.R. dated 2.9.2000 in F.I.R. No.2/AC/2000/HQ, as well as the consequential charge sheet dated 23.3.2001, filed in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, Mr.K.Asokan, contends that the same are based on the evidence gathered and the vital materials collected during further investigation under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1745; (v) If the further investigation under Section 173(8) of Code of Criminal Procedure disclose that any other person, in the instant case the petitioner in Crl.O.P.No.22506 of 2001, not being an accused in the criminal case already pending, viz., Spl.C.C.No.7 of 1997 before the Designated Court, has also committed any offence for which he could be tried together with the accused, viz. the petitioner in Crl.O.P.No.21969 of 2001, in the criminal case already pending, viz., Spl.C.C.No.7 of 1997 before the Designated Court, he may be proceeded with by the Designated Court for the offence which appears to have been committed by him, as per Section 319 of Code of Criminal Procedure, based on such further report; (vi) As and when a further report is filed pursuant to the further investigation under Section 173(8) of the Code of Criminal Procedure in the criminal case already pending in Spl.C.C.No.7 of 1997, it is for the Designated Court to take appropriate decision on such further report and proceed in accordance with law; and in which event, the applicability of Sub-section 2 to 6 to Section 173 of Code of Criminal Procedure would make it clear that each of the subsequent reports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im in C.C.No.2 of 2001, as the same cannot be relied upon in the eye of law, in view of the undertakings given in the Letters Rogatory issued under Section 166A of Code of Criminal Procedure; nor the learned Principal Sessions Judge, Chennai, considered that the summoning of the petitioners in C.C.No.2 of 2001, under the facts and circumstances explained above, is not a matter of course, but, as held in M/s.PEPSI FOODS LTD. & ANR. Vs. SPECIAL JUDICIAL MAGISTRATE & ORS. reported in 1998 (1) LW (Crl.) 72, it has got serious repercussions causing agony of criminal trial; and therefore, the impugned summons are liable to be quashed; and (x) Alternatively, under the facts and circumstances of the case, Mr.Asokan, seeks a direction to the investigating agency to withdraw the final report dated 23.3.2001 filed in C.C.No.2 of 2001, from the file of the learned Principal Sessions Judge, Chennai, and to file the same as a further report in Spl.C.C.No.7 of 1997 before the Designated Court; or otherwise to direct the learned Principal Sessions Judge, Chennai, to transfer the records relating to the final report dated 23.3.2001 filed in C.C.No.2 of 2001 and the proceedings thereon to the Desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Principal Sessions Judge, Chennai, Mr.N.R.Chandran, learned Advocate General, submits that the same are binding on the respondent prosecution, or otherwise it would be a violation to the due process of law; and the evidence collected pursuant to Letters Rogatory issued under Section 166-A of Code of Criminal Procedure should have been used against the petitioners, legitimately, only in Spl.C.C.No.7 of 1997 before the Designated Court. But nevertheless, the learned Advocate General left the matter to the decision of this Court to proceed further; (ii) The only option for the respondent prosecution is to place the evidence gathered and materials collected during further investigation in Spl.C.C.No.7 of 1997, as a further report in Spl.C.C.No.7 of 1997 before the Designated Court, but not to proceed independently in C.C.No.2 of 2001 before the learned Principal Sessions Judge, Chennai, inasmuch as the charging offence made against the petitioner in Crl.O.P.No.21969 of 2001, in both the criminal cases are one and the same, viz., the offence punishable under Section 13(1)(e) of the Prevention of Corruption Act; (iii) The allegation against the petitioner in Crl.O.P.No.21969 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they will not be prejudiced to try all or any number of charges framed against them together under Sections 218(1) and 223 of Code of Criminal Procedure. 7.1. It is true, the Public Prosecutor, being an officer of the Court, is to deal with a different field in the administration of justice and he is not involved in investigation, as the investigation and prosecution are different aspects of the administration of criminal justice, as held in R.SARALA Vs. T.S.VELU reported in 2000 SCC (Cri) 823; and it is the duty of the Public Prosecutor to act fairly and not merely to obtain conviction by any means fair or foul, and if the accused is entitled to any legitimate benefit, the Public Prosecutor should make it available to him and inform the Court even if the defence counsel overlook it, as held in SHIV KUMAR Vs. HUKAM CHAND. 7.2. However, considering the public importance, sensitive nature of the allegations made against the petitioners in the above O.P.s and the desirability that duty to act judicially demands justice should not only be done, but should manifestly and undoubtedly be seen to be done in order to repudiate judicial fallacy, failing which the judicial fairness and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. STATE OF KARNATAKA reported in 1999 SCC (Cri) 39; iv. Even though the prosecution was permitted for further investigation under Section 173(8) of the Code of Criminal Procedure, if a different offence is made out on the basis of the evidence gathered and materials collected during the further investigation, the ultimate report of the further investigation need not necessarily be tried along with the charge already pending before the Court, which permitted such further investigation, and therefore, two F.I.Rs. can be filed against the same accused when there are rival versions in respect of the same episode, as held in M.KRISHNA Vs. STATE OF KARNATAKA reported in 1999 SCC (Cri) 397 and KARI CHOUDHARY Vs. SITA DEVI & OTHERS reported in 2001 SCCL. COM 898; v. Assuming the prosecution has wrongly filed the ultimate report of the further investigation dated 23.3.2001, before the learned Principal Sessions Judge, Chennai, instead of filing the same before the Designated Court, the same shall not vitiate the enquiry, trial or other proceedings before the learned Principal Sessions Judge, Chennai, unless it appears that such error has in fact occasioned a failure of justice, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MAHARASHTRA Vs. K.K.S. RAMASWAMY ; viii. Since the charges in the said two criminal cases, viz., Spl.C.C.No.7 of 1997 and C.C.No.2 of 2001 are relating to two distinct offences, based on two different sets of facts, viz., one related to accumulation of disproportionate wealth in India and the other relating to accumulation of disproportionate wealth outside India, the same were not committed in the course of same transaction, and therefore, neither Section 218 nor Section 223 of Code of Criminal Procedure is attracted in the instant case; ix. The procedure contemplated under Section 166A of Code of Criminal Procedure does not prohibit the filing of a separate charge sheet if the evidence gathered and materials collected during further investigation discloses a distinct offence; x. The procedure prescribed under Section 166-A Code of Criminal Procedure is only a rule of evidence for proving the offence and any alleged violation of such rule of evidence cannot be a ground to quash the proceedings at the stage of issuing the summons; xi. Since the F.I.R.No.2-AC-2000, dated 2.9.2000 as well as the charge sheet dated 23.3.2001, prima facie satisfy the ingredients of the offence pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... London, wanted in writing an assurance from the concerned authority that the material furnished by United Kingdom authorities to the Government of India would be used for the purpose specifically intended, and accordingly all the Letters Rogatory dated 13.4.1998, 25.9.1998, 6.3.2000 and 30.8.2000 contained specific undertakings as required by the United Kingdom Central Authority. (iv) The undertakings given in Letters Rogatory dated 13.4.1998, 25.9.1998, 6.3.2000 and 30.8.2000, read as follows: a. in Letters Rogatory dated 13.4.1998 it was undertaken that: "the result of the investigation so conducted in United Kingdom shall be specifically used only in the proceedings arising out of this criminal case in which this Letter of Rogatory is being issued and shall not be utilised to prosecute any offence of political nature or offences under the Military laws". b. in Letters Rogatory dated 25.9.1998, the following undertaking was given - (i) None of the evidence which might be sent by the United Kingdom Authorities to me in this matter will ever be used without their consent, by the authorities in India for any purpose other than that stated in the letter of request; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th outside India, viz. Sri Lanka, Dubai, Malaysia, Singapore, Hong Kong, British Virgin Islands and the United Kingdom, which are disproportionate to known source of income of the petitioner in Crl.O.P.No.21969 of 2001, during her tenure as Chief Minister from 1.7.1991 to 30.4.1996. (v) Based on the evidence gathered and materials collected during further investigation permitted by the Designated Court under Section 173(8) Code of Criminal Procedure, pursuant to the Letters Rogatory in Spl.C.C.No.7 of 1997 on the file of the Designated Court, the respondent prosecution filed separate F.I.R.No.2-AC-2000, dated 2.9.2000, which culminated into a charge sheet dated 23.3.2001 in C.C.No.2 of 2001 before the learned Principal Sessions Judge, Chennai; and (vi) thus, the petitioner in Crl.O.P.No.21969 of 2001, who was the Chief Minister of Tamil Nadu from 1.7.1991 to 30.4.1996, and the petitioner in Crl.O.P.No.22506 of 2001, are charged for the offence punishable under Section 13(1)(e) of Prevention of Corruption Act as well as for the criminal conspiracy to commit the said offence in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, separately, alleging tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, who has to prove that in spite of the assets being disproportionate to his/her known sources of income, he/she is not guilty of the offence, as the legislature requires the public servant to satisfactorily account the pecuniary resources and property that are alleged to have been accumulated by the public servant or others on his/her behalf, disproportionate to his/her known sources of income, as held in SAJJAN SINGH Vs. STATE OF PUNJAB . 12.3. As held in STATE OF MAHARASHTRA Vs. WASUDEO RAMCHANDRA KAIDALWAR reported in 1981 SCC (Cri) 690, STATE OF MAHARASHTRA Vs. POLLONJU DARABSHAW and STATE OF HARYANA Vs. BHAJAN LAL reported in 1992 SCC (Cri) 426, while the prosecution must prove the following facts, viz.: (i) that the accused is a public servant, (ii) the nature and extent of the pecuniary resources or property which were found in his/her possession, (iii) what were his/her known sources of income, i.e. known to the prosecution; and (iv) that such resources or property found in possession of the accused were disproportionate to his/her known sources of income, the burden is then shifted to the accused to satisfactorily explain and account for his/her possession of the dispro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nated Court, arise in the course of same transaction alleged in the Crime No.13/AC/96 registered on 18.9.96 and charge sheet filed in Spl.C.C.No.7 of 1997 on the file of the Designated Court? 13.2. Elaborate arguments are made on this issue. 13.3. While Mr.K.Asokan and Mr.B. Kumar, learned senior counsel, appearing for the petitioners herein contend that the alleged accumulation of disproportionate wealth by the petitioners constituting an offence punishable under Section 13(1)(e) of Prevention of Corruption Act and the criminal conspiracy to commit the said offence, had taken place during the course of same transaction with reference to the same check period for which the petitioner and respondents 2 to 4 in Crl.O.P.No.21969 of 2001 were charged in Spl.C.C.No.7 of 1997 on the file of the Designated Court, Mr.R.Shanmugasundaram, learned senior counsel contends otherwise, as the properties said to have accumulated by the accused in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, are identified outside India, while, such accumulation of properties by the accused in Spl.C.C.No.7 of 1997 on the file of the Designated Court are identified in India and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions Judge, Chennai, have been committed by them during the course of same transaction, for which the petitioner and respondents 2 to 4 in Crl.O.P.No.21969 of 2001, are charged in Spl.C.C.No.7 of 1997 on the file of the Designated Court. The accumulation of pecuniary resources and properties, disproportionate to the known source of income of the petitioner in Crl.O.P.No.21969 of 2001, during the same check period, which is a relevant criteria in both the criminal cases, viz. Spl.C.C.No.7 of 1997 before the Designated Court and C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, and whether the same are satisfactorily accounted or not, equally cannot be gone into in quash proceedings under Section 482 of Code of Criminal Procedure, as, they are to be gone through only during the course of trial. 13.6. As it is already held in Issue No.1 that it is improper for this Court to quash the process of impugned summons in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, by exercising the inherent jurisdiction conferred under Section 482 of Code of Criminal Procedure, it is equally impermissible in law to appreciate the averments stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which event the procedure provided under Section 173(2) to (6) shall apply again. Of course, it is also well settled in law that a defect or illegality said to have been committed during the course of investigation, does not affect the competency or the procedure relating to cognisance of trial, vide PRABHU Vs. EMPEROR reported in AIR 1944 PC 73, LUMBHARDAR ZUTSHI Vs. THE KING reported in AIR 1950 PC 26 and H.N.RISHBUD Vs. STATE OF DELHI . But, the petitioners herein do not complain any illegality during the course of investigation. However, they are aggrieved by the breach of undertaking given in the Letters Rogatory issued under Section 166A of Code of Criminal Procedure, during further investigation made under Section 173(8) of Code of Criminal Procedure in Spl.C.C.No.7 of 1997 on the file of the Designated Court. 14.4. Section 166A of the Code of Criminal Procedure empowers a Court in India to issue letter of request (Letters Rogatory) to competent authority for investigation in a country or place outside India, which, already extracted, reads as follows: "Section 166A Cr.P.C.: Letter of request to competent authority for investigation in a country or place outside In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore be given due importance. 14.6. The Letters Rogatory dated 13.4.1998, 25.9.1998, 6.3.2000 and 30.8.2000, admittedly, carry undertaking that the results of the investigation so conducted in United Kingdom shall be specifically used only in the proceedings arising out of this criminal case, viz., Spl.C.C.No.7 of 1997 on the file of the Designated Court, in which the above Letters Rogatory were issued, and therefore, such undertakings cannot be lightly disregarded. Even though the petitioner in Crl.O.P.No.21969 of 2001 has no right to be heard at the time of permitting further investigation or issuing Letters Rogatory, she is entitled to bring any breach of the undertaking given in the Letters Rogatory under Section 166A of the Code of Criminal Procedure, at the earliest point of time, because every terms of Letters Rogatory should be given due importance, as they were issued under the seal of the Court issuing such Letters Rogatory. 14.7. Since, admittedly, the evidence and materials which form the basis for registering the F.I.R.No.2-AC-2000, dated 2.9.2000, and filing the charge sheet dated 23.3.2001 in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and evidence inadmissible. If the Court is seen to condone acts of lawlessness conducted by the investigating agency, the legitimacy of judicial process will fall under a cloud, undermine respect for the law and have the effect of unconscionably comprising the administration of justice. 14.11. There is, indeed, a need to protect society from criminals, and the societal intent in safety will suffer if persons who commit crimes are let off, because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously, inviting action against the official concerned, so that the laxity on the part of the Investigating authority is curbed, as held by the Apex Court in STATE OF PUNJAB VS. BALDEV SINGH REPORTED IN . 14.12. It is true the concern is genuine and the problem is real and to deal with such a situation, a balanced approach is needed to meet the ends of justice. The action of the State, however, must be right, just and fair. Reasonableness, fairness and just procedure are prime objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same would be the interest of justice, without causing any prejudice to the accused. Therefore, the ultimate discretion remains with the Court, which is in seisin of the case to decide as to what further action can be taken depending upon the nature of the materials received on the further investigation. Hence, in the instant case, the subsequent report dated 23.3.2001 can be filed only before the Designated Court, even though the case is already tried before the Designated Court, which in the event of receiving such further report, will consider the nature of evidence which the further report discloses and decide in accordance with law and in the interest of justice. 15.3. Again S.RAJENDRA BABU,J. as he then was, in J.ALEXANDER Vs. STATE OF KARNATAKA reported in 1996 Crl.L.J. 592, interpreting Section 173(8) of Code of Criminal Procedure held as follows: "It opens with a non-obstante clause that nothing stated in the section would preclude further investigation after a report under sub-section (2) had been forwarded to the Magistrate. A report submitted to the Court may either result in taking cognisance as a result of a report as contemplated under Section 170 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to look into the further report and if anything new is there, it can frame charges in accordance with it treating it as a supplementary report. If some new accused are also introduced in the further report, the Court can take cognisance against them as well and it shall be called supplementary charge sheet and will be received and proceeded in accordance with law. 15.5. That apart, the source of income of a public servant during the particular check period, as well as the alleged pecuniary resources or properties disproportionate to his/her known source of income for the same period could not be assessed by two different courts, which would, otherwise, give way for different valuation by different Courts, and the same be opposed to criminal jurisprudence, as, the piecemeal or instalment prosecution would only amount to abuse of process of law, giving way for inconsistent valuation in two different trials by two different Courts, resulting in miscarriage of justice, as held in CONNELLY Vs. DIRECTOR OF PUBLIC PROSECUTIONS reported in (1964) 2 ALL ENGLAND REPORTER 401. 15.6. When a breach of undertaking of the respondent prosecution given under the Letters Rogatory issued under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence gathered and materials collected, which culminated into charge sheet dated 23.3.2001 in C.C.No.2 of 2001 on the file of the learned Principal Sessions Judge, Chennai, and transferred hereunder and proceed with the case in accordance with law. 15.7. In the interest of independence of the magistracy and the judiciary, in the interest of purity of the administration of criminal justice and in the interest of the comity of various agencies and institutions entrusted with different stages of such administration, in deference to the observations of the Apex Court made in RAM LAL NARANG Vs. STATE (DELHI ADMINISTRATION) reported in 1979 SCC (Cri) 479, and the ratio laid down in J.ALEXANDER Vs. STATE OF KARNATAKA reported in 1996 Crl.L.J. 592 and ARJUNA KUMAR Vs. STATE OF ORISSA reported in 1989 Crl.L.J. 449, whatever the decision, the Designated Court is to take, the same shall be in accordance with the Code of Criminal Procedure and in consequence of the above direction. 15.8. In any event, the Designated Court shall take appropriate decision in the matter expeditiously, try the same on day-to-day basis and conclude the same within a period of six months from today, as held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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