Madras High Court: In a suo motu revision, filed by the Directorate of Vigilance and Anti-Corruption (‘DVAC’) under Sections 397 and 401 of the Code of Criminal Procedure, 1973, (‘CrPC’) directed against an order passed by the Additional Special Court discharging I.Periyasamy, Minister of Rural Development of Tamil Nadu from the case, N. Anand Venkatesh, J. while setting aside the impugned order, directed the Special Court for Corruption Cases to re-transmit the case records to the Additional Special Court for Trial of criminal cases related to elected members of Parliament and Members of Legislative Assembly of Tamil Nadu within one month from the date of this order.
Further, it gave the following directions:
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All the accused were directed to appear before the Special Court on 28-03-2024. Upon such an appearance, all the accused were directed to furnish a bond of Rs.1,00,000/- each with two sureties under Section 88 CrPC to the satisfaction of the Special Court.
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The Trial Court was directed to re-commence the trial and ensure that the accused cross-examine the prosecution witnesses on the day they are examined-in-chief, as directed in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 . If the accused adopt any dilatory tactics, it is open to the Trial Court to insist upon their presence and remand them to custody, as laid down in State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667
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The Trial Court was directed to conduct trial daily and complete the same on or before 31-07-2024. Thereafter, a compliance report be sent to the Registrar General of the High Court
Background:
I.Periyasamy was elected as a Member of the Tamil Nadu Legislative Assembly on a DMK ticket in May 2006. Between 2007 and May 2011 was a member of the State Cabinet as the Minister for Housing. The case of the prosecution is that between 2008 and 2009, an Inspector of Police had entered a criminal conspiracy with accused persons including I.Periyasamy to illegally obtain a High-Income Group Plot in the Mogappair Eri Scheme of the Tamil Nadu Housing Board. The prosecution case is that the entire conspiracy was orchestrated by I. Periyasamy by allotting the HIG plot under the Impeccable Honest Government Servant quota even though the co-accused had not asked for allotment under the said quota. It is alleged that co-accused was set up to ask for a plot to reside with his family and in furtherance of the conspiracy with the Minister. DVAC with the change in power, conducted an enquiry on the HIG Allotment. Finding that there was something seriously amiss about the way the allotment was made, the Tamil Nadu Vigilance Commission, accorded permission to register a regular case. Consequently, an FIR was registered by the DVAC for the offences under Sections 120-B, 420 and 109 of the Penal Code, 1860 (‘IPC’) and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘PC Act’) against all the accused persons.
Issues and Analysis:
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Whether a second discharge petition is maintainable, if so, at what stage?
The Court discussed the powers of this Court to initiate a suo motu revision under Sections 397 and Section 401 of the CrPC.
The Court noted that the ground of lack of sanction under Section 197 CrPC and the incompetency of the Speaker to grant sanction under Section 19 of the P.C Act, 1988 were expressly raised by I.Periyasamy and rejected by the Special Court in its order dismissing the first discharge application of I.Periyasamy which order was also affirmed by this Court on 11-11-2022.
The Court said that reverting to the narration by this Court to proceed with trial, the Special Court very generously decided to entertain the second discharge petition of I.Periyasamy under Section 19 of the P.C Act, 1988. Thereafter, the Special Court discharged the accused within 21 days despite a clear and categorical direction by this Court to proceed with trial. Thus, the Court observed that the conduct of the Special Court in entertaining the second discharge application contrary to the directions of this Court is thoroughly condemnable and is seriously suspected on several counts.
Thus, the Court held that once the trial had commenced, the discharge petition filed by I.Periyasamy seeking discharge was not maintainable. Consequently, the Special Court committed gross illegality in entertaining and allowing a second discharge petition during trial. Therefore, the order dated 17-03-2023 discharging I.Periyasamy smacks of manifest illegality and grave procedural impropriety warranting interference under Sections 397 read with 401 CrPC.
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Whether the prosecution of I.Periyasamy is bad for want of sanction under Section 197 CrPC?
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Who is the competent authority to grant sanction under Section 19 of the P.C Act, 1988 in respect of the offences alleged to have been committed by I.Periyasamy?
The Court said that Section 19(1)(a) of the P.C Act, 1988 cannot possibly apply as that provision is confined to a person employed or was, at the time of the commission of the offence, employed in connection with the affairs of the Union and is not removable from office save with the sanction of the Central Government. By applying Section 19(1)(a) to an MLA, the Special Court has equated I. Periyasamy, a Minister of the T.N Government, to a person employed with the Union Government who is removable from office with the sanction of the Central Government. This conclusion is completely perverse and bizarre apart from being legally and politically incorrect.
The Court said that the Special Court has committed another legal blunder by applying Section 19(2) of the P.C Act overlooking the fact that the provision would apply only in cases where there is a doubt as to the sanctioning authority. The Court added that the Special Court has categorically (but incorrectly) held that the sanctioning authority is the Governor. Thus, even if one goes by the Special Court’s flawed reasoning, there was never any doubt as to the sanctioning authority to apply Section 19(2). Therefore, the conclusion of the Special Court to apply Section 19(2) is completely specious and perverse.
The Court reiterated that under the P.C Act 1988, the relevant date for sanction is the date on which the Court takes cognizance of the offences. Further, it said that by applying 19(2) the Special Court concluded that I. Periyasamy was a Minister at the time of commission of the offence, the authority competent to remove him was the Governor and not the Speaker.
The Court said that as on the date of taking cognizance of the offences, I.Periyasamy was an MLA, thus the Speaker and not the Governor who was the competent authority to grant permission to prosecute I.Periyasamy in terms of the judgment in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626. Therefore, the sanction granted by the Speaker in the instant case does not suffer from any infirmity or want of authority.
Thus, the Court held that the impugned order of the Special Court discharging I.Periyasamy from the case on the ostensible ground of a supposed defect/invalidity in sanction under Section 19 of the P.C Act, 1988 suffers from manifest perversity and gross illegality. It is also tainted by procedural impropriety, as the Special Court had acted in open defiance of the order passed by this Court dismissing the first round of discharge petitions and directing the Special Court to proceed with trial. To compound the illegality, the Special Court has discharged I.Periyasamy from the case for all eternity, as if the order of discharge on the ground of want of sanction operated as an acquittal. Thus, this case warrants the exercise of powers under Section 397 read with Section 401 CrPC to prevent the subversion of the criminal justice system through a palpably illegal order of discharge.
The Court said that the legitimacy of the administration of criminal justice will be eroded, and public confidence shaken if MLA’s and Ministers facing corruption cases can short-circuit criminal trials by adopting the modus operandi that has been carried out in this case. The public should not be led to believe that a trial against a politician in this State is nothing but a mockery of dispensing criminal justice. A Constitutional Court is duty-bound, under the Constitution, to ensure that such things do not come to pass.
[Directorate of Vigilance and Anti-Corruption v. Thiru.I. Periyasamy, 2024 SCC OnLine Mad 283, decided on 26-02-2024]
Advocates who appeared in this case:
For Respondents: Advocate General P.S. Raman, Government Advocate M.D. Muhilan , Senior Counsel Ranjit Kumar, Senior Counsel A. Ramesh
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