State cannot change his stand without Justification - SC

 Apex Court observed in the recent Judgement that it is a settled principle that the State cannot blow hot and cold at the same time. When the State Government changed its stand, the High Court neither provided the appellant an opportunity to defend himself, nor sought a reasoned justification from the State for having turned turtle.

Appellant was Cabinet Minister in the State of Tamil Nadu from 2014 to 2018. Allegedly misused his powers to influence the tender process and ensured that tenders were awarded to his close aides. Mr. R.S. Bharathi Respondent no.1 lodged complaint with Directorate of Vigilance and Anti-Corruption and SP, Anti­Corruption Bureau, CBI. Appellant approached High Court for quashing the proceeding against him.

As no action was taken, respondent No.1 filed a writ petition before the High Court seeking, inter alia, a mandamus directing the Director, Directorate of Vigilance and Anti­Corruption to register an FIR based on the complaint lodged by him and to constitute an SIT for the purpose of investigation.

High Court directed that “ ….respondent is one of the senior Ministers in the Cabinet and the investigation is being carried by an Officer who is in the rank of the Deputy Superintendent of Police, this Court is of the considered view that the preliminary enquiry hereinafter shall be carried on by Ms. Ponni, IPS, Superintendent of Police, Directorate of Vigilance and Anticorruption and the progress being made in the preliminary enquiry, shall be monitored by the Director of Vigilance and Anticorruption and ……. The Director of Vigilance and Anticorruption shall file the Status Report as to the progress being made in the preliminary enquiry, with supporting documents in sealed cover for perusal of this Court.”

Investigating Officer appointed by the High Court completed his enquiry and submitted final report and after going through the report.

In meantime State registered an FIR against 17 accused persons, including the appellant herein under Section 120B r/w Sections 420 and 409 of the IPC and Section 13(2) r/w Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 r/w Section 109 of the IPC. 

High Court dismissed the quashing petition by observing that charge­sheet were to be filed against him or any charges framed.  Since the investigation has almost come to an end and since the charge­sheet or final report is to be filed within the next ten weeks, no useful purpose would be served in keeping these petitions alive. Accordingly, W.P. No.34845 of 2018 and Crl.O.P. No.23428 of 2018 are closed. Consequently, W.M.P. Nos.4747 of 2020 and 24569 of 2021 are closed.

Aggrieved appellants by dismissal of quashing petition Crl.O.P. No.23428 of 2018, approached the Apex Court.

Apex Court observed that High Court has committed a patent error in not taking the matter to its logical conclusion. The High Court made sweeping observations prejudicial to the appellant. Such an approach, as adopted by the High Court in the present matter, cannot be countenanced in law… the initial affidavit filed by the State was categorical that they did not intend to pursue action against the appellant herein. However, the subsequent change of stand by the State clearly contradicts the expectation brought about by the initial affidavit. The principles of natural justice demanded that the appellant be afforded an opportunity to defend his case based on the material that had exonerated him initially, which was originally accepted by the State.

Main issue for consideration before Apex Court whether the appellant herein is entitled to the preliminary report in the present facts and circumstances.

Apex Court observed that State may be appropriate under normal circumstances wherein the accused is entitled to all the documents relied upon by the prosecution after the Magistrate takes cognizance in terms of Section 207 of CrPC. However, this case is easily distinguishable on its facts. Initiation of the FIR in the present case stems from the writ proceedings before the High Court, wherein the State has opted to re­examine the issue in contradiction of their own affidavit and the preliminary report submitted earlier before the High Court stating that commission of cognizable offence had not been made out.

It is in this background we hold that the mandate of Section 207 of CrPC cannot be read as a provision etched in stone to cause serious violation of the rights of the appellant/ accused as well as to the principles of natural justice. …..Viewed from a different angle, it must be emphasized that prosecution by the State ought to be carried out in a manner consistent with the right to fair trial, as enshrined under Article 21 of the Constitution.

Apex Court held that When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover. And issued the following directions: ­

1. The High Court is directed to supply a copy of the report submitted by Ms. R. Ponni, Superintendent of Police along with the other documents to the appellant herein.
2. Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428 of 2018 are restored on the file of the High Court of Madras.
3. The High Court is directed to dispose of the cases on their own merit, uninfluenced by any observation made herein.
4. Although the prayer for quashing of the FIR was not orally pressed before this Court, however, the appellant is granted liberty to seek appropriate remedy before the High Court.

D.D: - MAY 20, 2022.

S.P. VELUMANI VERSUS ARAPPOR IYAKKAM AND ORS.