Selvi J. Jayalalitha vs State

The petitioner/first accused in C.C. No.4 of 1997 and C.C.No.13 of 1997 on the file of XIII Additional Sessions Judge/Special Judge, Chennai

has filed the following Criminal Revision Cases:-

(1) Crl. R.C. No.406 of 1998 filed challenging the order passed by the Special Judge, Chennai in Crl.M.P. No.155 of 1997 in C.C. No.4 of

1997 filed by the petitioner for her discharge.

(2) Crl. R.C. No.606 of 1999 filed by the petitioner against the order passed by the Special Judge, Chennai challenging the charges framed against

the petitioner in C.C. No.4 of 1997 by the Special Judge, Chennai,

(3) Crl. R.C. No.929 of 1999 is filed by the petitioner against the order of Special Judge, Chennai in Crl. M.P. No.830 of 1999 dismissing the

said petition filed u/s 91 Cr.P.C.; and

(4) Crl. R.C. No.930 of 1999 filed by the petitioner against the order in Crl. M.P. No.571 of 1999 filed by the petitioner u/s 239 Cr.P.C. for her

discharge in C.C. No.13 of 1997.

The petitioner Selvi Jayalalitha was the Chief Minister of Tamil Nadu between June, 1991 to May, 1996. In 1996, the respondent police have

registered a case in Crime No.17 of 1996 in respect of sale of two immovable properties of Tamil Nadu Small Industries Corporation, a Tamil

Nadu Government Corporation incorporated under the Companies Act, 1956 to (1) M/s. Jaya Publication and (2) M/s. Sasi Enterprises that on

the charge-sheet filed by the respondent police, C.C. No.4 of 1997 was taken on file by the XIII Additional Sessions Judge/Special Judge.

Chennai, that for purchase of another immovable property belonging to the said Corporation by M/s. Sasi Enterprises, on the charge-sheet filed by

the respondent police, C.C. No.13 of 1997 was taken on file by the XIII Additional Sessions Judge/Special Judge, Chennai.

The petitions herein has filed a petition in Crl. M.P. No.155 of 1997 for her discharge in C.C. No.4 of 1997 and the Special Judge dismissed

the said petition by his order dated 20.4.1998. Challenging the said order, Crl. R.C. No.406 of 1999 has been filed by the petitioner/first accused.

As the Special Judge has framed charges against her, challenging the framing of charges in C.C. No.4 of 1997, the petitioner/first accused has filed

Crl. R.C. No.606 of 1999.

The petitioner/first accused has filed Crl. M.P. No.830 of 1997 in C.C. No.13 of 1997 u/s 91, Cr.P.C. to issue summons to the investigating

officer to produce certain documents. The Special Judge by his order dated 12.7.1999 has dismissed the said petition and challenging the order of

dismissal, the petitioner has filed Crl.R.C. No.929 of 1999. The petitioner has filed Crl. M.P. No.571 of 1997 in C.C. No.13 of 1997 for her

discharge and the Special Judge dismissed her petition by an order dated 12.7.1999 and challenging the said order, the petitioner has filed

Crl.R.C. No.930 of 1999.

On the complaint of one Tmt O.P.Sussamma, Secretary to Government, Small Industries Department, a case was registered by the respondent

police in Crime No.17 of 1996 on 9.7.1996 and after investigation, a final report was filed against the petitioner/first accused and others for

offences under Sections 169, I.P.C., 420 read with 34 I.P.C., 420 read with 109, I.P.C., 409, I.P.C. and 120-B, I.P.C. and Section 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act. Likewise, for the purchase of immovable property belonging to the Tamil Nadu Small

Industries Corporation by M/s. Sasi Enterprises, the final report was filed against the petitioner for similar offences and in both the firms, the

petitioner/first accused was a partner. Those purchase have been effected during the period when the petitioner was the Chief Minister of Tamil

Nadu.

Their Lordships of the Supreme Court in M. Karunanidhi Vs. Union of India and Another, held that the Chief Minister of a State is a public

servant. There cannot be any controversy that the Chief Minister is a public servant. The major charge against the petitioner is that while she was

Chief Minister of Tamil Nadu, M/s. Jaya Publication and M/s. Sasi Enterprises, the two firms wherein she was a partner, have purchased two

immovable properties for a price lower than that of the Government guideline value. Learned Special Judge framed charges against the petitioner in

both the cases dismissing the petition filed by her. On the complaint of one Tmt O.P. Susamma, Secretary to Government Small Industries

Department, the respondent police have registered a case in Crime No.17 of 1996 and filed two charge-sheets and in both the charge sheets,

similar charges have been shown.

Learned counsel Mr. N.Jothi for the petitioner has argued that there are no materials to frame any charge against the accused/petitioner in both

the cases and to substantiate his contention, he has relied on number of decisions. Learned senior counsel Mr. N. Natarajan, for the Public

Prosecutor, has argued that mere are sufficient materials on record to frame such charges against the petitioner and the framing of charges by the

trial Court cannot be validly questioned by the petitioner.

Learned senior counsel Mr. Natarajan has relied on a decision of the Supreme Court in State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa,

Etc. Etc., wherein Their Lordships of the Supreme Court in paragraph 30 have held-

In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court

can justifiably say that prima facie case against him exists, and so, frame charge against him for committing that offence.

Their Lordships in Para 31 of the said judgment have considered the meaning of the word ""presume"" and held thus-

Let us note the meaning of the word ""presume"". In Black''s Law Dictionary, it has been defined to mean ""to believe or accept upon probable

evidence"". In Shorter Oxford English Dictionary it has been mentioned that in law ""presume"" means ""to take as proved until evidence to the

contrary is forthcoming"". Stroud''s Legal Dictionary has quoted in this context a certain judgment according to which ""A presumption is a probable

consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged."" In Law Lexicon ''by P. Ramanath

Aiyer the same quotation finds place at page 1007 of 1987 edition.

After considering the various aspects regarding the framing of charge. Their Lordships in paragraph 32 have held-

The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable

consequence, a case for framing of charge exist. To put it differently, if the Court were to think that the accused might have committed the offence

it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the

stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has

to be accepted as true at that stage.

In the said decision Their Lordships have held that if there is ground for presuming that the accused has committed the offence, the Court an

justifiably say that a prima facie case exists against him.

Section 4 of the Indian Evidence Act says-

May presume"".-- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until

it is disproved, or may call for proof of it;

Shall presume"".-- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is

disproved;

Conclusive proof"".-- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the

other as proved, and shall not allow evidence to be given for the purpose of disproving it.

In State of Bihar Vs. Ramesh Singh, , Their Lordships have considered the discharge or framing of charge in a sessions trial by a Sessions

Judge and held----

But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has

committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption

of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where

the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should

proceed with the trial or not.

In Union of India v. Prafulla Kumar Samal and another 1979 S.C.C. Crl. 609. Their Lordships have held:-

Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be

fully justified in framing a charge and proceeding with the trial.

In L.K.Advani v. Central Bureau of Investigation 1997 CR1 L.J. 2559, the Delhi High Court held-

It is manifest from above that the charges can be framed against an accused person only in those discerning few cases where the Court comes to

the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of

being converted into legal evidence later on during the subsequent proceedings after the framing of the charges.

In other words, the Court would be justified in framing the charges against an accused if the prosecution has sown the seed in the form of the

incriminating material which has got the potential to develop itself into a full-fledged tree of conviction later on.

For the purpose of framing of charge, what is required is sufficient material to presume that the accused has committed the offence. In State of

Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., . Their Lordships have held that ""if the Court to think that the accused might have

committed the offence it can frame charge."" It was further stated that if there is ground for presuming that the accused has committed the offence,

the Court can justifiably say that a prima facie case exists against him. In State of Bihar Vs. Ramesh Singh, it was held that the presumption of the

guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal case and it is only for the

purpose of deciding prima facie whether the Court should proceed with the trial or not. In similar decisions, it was held that (1) strong suspicion;

(2) presumption; and (3) prima facie case are necessary to frame charge. Strong suspicion should lead to the presumption that there is a prima

facie case to proceed against the accused.

Learned Counsel for the petitioner has relied on same decisions to show that charge need not be framed merely by relying on the documents

referred to in Section 173 Cr.P.C. In Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, , Their Lordships of the

Supreme Court have considered the question of framing of charge and held-

The order framing the charges does substantially affect the person''s liberty and it is not possible to countenance the view that the Court must

automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it

proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so.

Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.

Section 239 Cr.P.C. says-

When the accused shall be discharged:- If upon considering the police report and the documents sent with it u/s 173 and making such examination

if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the

Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

For a discharge u/s 239, Cr.P.C., the charge against the accused to be ""groundless"".

In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another , 1989 S.C.C. (Crl.) 285, Their Lordships of the Supreme Court

have held that-

The ''ground'' in the context is not a ground for conviction, but a ground for putting the accused on trial.

In Minakshi Bala Vs. Sudhir Kumar and Others, , while considering Section 239 and 240 Cr.P.C. at the time of framing of charge, it was

held-

Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it u/s 173, Cr.P.C. and

examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration,

examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239, Cr.P.C.; conversely,

if he finds that there is ground for presuming that the accused has committed and offence triable by him he has to frame a charge in terms of Section

240,Cr.P.C.

The same view was followed by Their Lordships in State Anti-corruption Bureau v. P. Suryaprakasam 1999 S.C.C. (Cri.) 373.

In State of Karnataka v. L. Muniswamy, 1977 S.C. 1489, Their Lordships have held-

There is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can

determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be

possible.

In the case of Prafulla Kumar Samal 1979 S.C.C. Crl. 609 it was held that while considering the question of framing the charge u/s 227 Cr.P.c.,

the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against

the accused has been made out and further held that the test to determine a prima facie case would depend upon the evidence produced before the

Court. The Judge has to consider the broad probabilities of the case and the total affect of evidence and the documents produced and at the same

time should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In Satish Mehra Vs. Delhi Administration and Another, , Their Lordships have held-

Hence, we are of the view that Sessions Judge would be within, his powers to consider ever, materials which the accused may produce at the

stage contemplated in Section 227 of the Code.

From these decisions, it is clear that Court has the power of sift and weigh the evidence for the limited purpose of finding out whether or not a

prima facie case has been made out and that if there is a ground for putting the accused on trial, charge has to be framed that if there is no ground

for presuming that the accused has committed the offence is groundless and the accused has to be discharged. While looking into the material, the

Court should not enter into a roving enquiry and at the same time the Court should consider the materials available and come to the conclusion

whether there are sufficient materials to frame charge against the accused and that at the time of framing of charge, the Court has got powers to

consider ever materials produced by the accused at that stage. Therefore, at the time of framing of charge, the Court has to consider the materials

available on record and also by examining the accused and upon hearing both side and on considering the materials, if any, produced by the

accused, that If there is ground for presuming that the accused has committed the offence, the Court can justifiably say that a prima facie case

against him exists and frame charge for committing the offence. Learned counsel Mr. N. Jothi appearing for the petitioner has strenuously

contended that none of the offences for which charges are framed by the Special Court are made out against the accused and the Special Court

has committed a grave error in framing charges against the petitioner for various offences. Per contra, Mr. N. Natarajan, learned counsel for the

Public Prosecutor, has contended that on the materials available on -record, the'' Special -Judge has justifiably framed charges against the accused

and in order to avoid her participation in trial the petitioner has come forward with these petitions challenging the framing of charges against her for

various offences.

Learned Counsel Mr.N. Jothi has elaborately argued to point out that the none of the offences for which charges are framed by the Special

Judge are made out against the petitioner and if he has dealt with each and every offence, there are no sufficient, materials to frame such charges

against the petitioner. The first and foremost argument advanced by learned counsel is regarding framing of charge for an offence u/s 169, IPC.

Section 169, IPC says-

Public servant unlawfully buying or bidding for property.-- Whoever, being a public servant, and being legally bound as such public servant, not to

purchase or bid for certain property, purchases or bids for the property, either in his own name or in the name of another, or jointly, or in shares

with others, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, If

purchased, shall be confiscated.

Learned counsel for the petitioner has pointed out that (1) the person should be a public servant; (2) in his capacity as public servant, he is

legally prohibited from purchasing or bidding retain property; and (3) either in his name or in the name of another or jointly, or in shares with

others. The word ''certain property'' carries the whole meaning of the Section. However, either this Section or any other Section points out what

are all those properties which a public servant should not purchase or bid in the auction. The terms of Section 159, I.P.C. clearly prohibits a public

servant from purchasing certain property. It was contended on the side of the respondent that the Code of Conduct for the public servant serving

in Government of Tamil Nadu are defined in G.O.Ms No.934 Public (Special) Department, dated 10.5.1965 and G.O. Ms. No.1350 Public

(Special- B) Department, dated 25.6.1968. By showing the prohibition or prevention or bar to a Government servant from purchasing ''certain

property'' is on the basis of the Government orders of the Government of Tamil Nadu, it was argued by the petitioner that such orders passed by

the Government do not bear the teeth of a statute. In Bijoe Emmanuel and Others Vs. State of Kerala and Others, Their Lordships of the Supreme

Court have considered two circulars issued by the Director of Public Instruction, Kerala and held those two circulars have no statutory basis and

are mere departmental instructions.

In D. Bhuvan Mohan Patnaik and Others Vs. State of Andhra Pradesh and Others, , it was held that departmental instructions are neither "" law

within the meaning of Article 13(3)(a) nor are they "" procedure established by law"" within the meaning of Article 21 of the Constitution of India.

In the earlier decision in Ram Chandra Prasad Vs. The State of Bihar, , it was held---

It has been held in A.K. Gopalan Vs. The State of Madras, that in Article 21, the word ''law'' has been used in the sense of state-made law and

not as an equivalent of law in the abstract or general sense embodying the principles of natural justice, and ""procedure established by law"" made

the State, this is to say, by the Union Parliament or the- Legislatures of the States, Section 4 has been enacted by Parliament and therefore, it must

be held that what it lays down is a procedure established by law.

In Vijayaraghavan v. State of Tamil Nadu , 1993 W.L.R. 294 a Division Bench of this Court, after considering G.O. Ms. No.990 Revenue

Department dated 16.6.1984, held that the said G.O. cannot be a statutory one and it is only an administrative order issuing certain guildlines to its

departmental officers. It was further held by Their Lordships ""when that be the position we failed to see how the alleged non-compliance with any

of those administrative guildlines therein will help the appellant to challenge the acquision proceedings which are otherwise valid in law"". Therefore,

the two G.O.s. relied on by the respondents cannot be taken as a statutory prohibition or bar against the petitioner herein to purchase the property

in an auction held by the Tamil Nadu Small Industries Corporation. The word ''certain'' in the said Section is not defined therein. The bar shown

under those two G.Os. cannot operate as a statutory prohibition against the petitioner and in such circumstances, can we legally presume that there

are sufficient materials to frame charge against the petitioner?.

Such prohibitions are found in the CPC and certain Acts also. Order 21, Rule 73, C.P.C. says

Restriction on bidding or purchase by officers.-- No officer or other person having any duty to perform in connection with any sale shall, either

directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

Section 19 of the Cattle Trespass Act, 1871, says-

Officers and pound-keepers not to purchase cattle at sale under the Act:-- No officer of police or other officer or pound-keeper appointed under

the provisions herein contained shall, directly or indirectly, purchase any cattle at a sale under this Act.

Section 136 of the Transfer of Property Act, 1882 says-

Incapacity of officers connected with Court of justices-- No Judge, legal practitioner, or officer connected with any Court of Justice shall buy or

traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance,

or at the instance of any person claiming by or through him, any actionable claims so dealt with by him as aforesaid.

Section 189 of the Railways Act, 1989 says-

Railway servants not to engage in trade.--A railway servant shall not-

(a) purchase or bid for, either in person or by an agent, in his own name or in that of another, or jointly or in shares with others, any property put to

auction u/s 83 or Section 84 or Section 85, or Section 90'' or

(b) in contravention of any direction of the railway administration in this behalf, engage in trade

Such prohibitions are imposed against public servant under various Acts. Any breach alleged in respect of a Code of Conduct imposed upon a

public servant will not amount to an offence punishable u/s 169, I.P.C., as Code of Conduct is not a statutes.

The words ""certain property"" stated in Section 169 I.P.C. has special significance while construing the offence u/s 169, I.P.C. What are such

properties has to be decided by looking into the facts and circumstances of each case. As already stated, the Chief Minister is a public servant and

the present petitioner has not raised any objection saying that she was not a public servant at the time when the property was purchased by M/s.

Jaya Publication and M/s. Sasi Enterprises. The fact remains that the property concerned owned by TANSI was attempted for sale since 1985

and every such attempt went in vain for the simple reason there were no bidders for a reasonable consideration. The petitioner became the Chief

Minister in 1991 and once again in order raise more resources for the better functioning of the TANSI, such a decision was renewed. The

authorities concerned have published the news of auction of those properties in newspapers and thereafter, in the auction held, the properties were

purchased by M/s. Jaya Publication and M/s. Sasi Enterprises wherein the petitioner happened to be a partner. The case against the petitioner is

that being a public servant, the properties were purchased in the name of M/s. Jaya Publication and M/s. Sasi Enterprises by the petitioner. The

reasons, that the petitioner was a public servant and the property was purchased by the firm in which she was a partner would be insufficient to

frame a charge against her unless the main ingredients, are prima facie satisfied that the petitioner is liable for punishment for the purchase of the

said property.

Unlike the full time public servants, the Chief Minister and other appointees who fall under the definition of public servant u/s 21, I.P.C. have

their own business or avocation they like, apart from their status as public servant in lieu of the office they hold. Such question came before a Full

Bench of the Andhra Pradesh High Court in Vidadala Harinadhababu Vs. N.T. Ramarao, Chief Minister, State of Andhra Pradesh, Hyderabad

and others, ,. Shri NT. Ramarao who was acting as hero in films became the Chief Minister of Andhra Pradesh when his party was voted to

power and during his office as Chief Minister, he made publicity that the N.T.R. Trust is going to produce a film ""Brahmarishi Viswamithra"" and the

petitioner V. Harinadhababu filed a writ petition challenging the said decision. The Full Bench of the Andhra Pradesh High Court held-

The Court cannot perform a pure and simple legislative function. It is significant, to notice that the Constitution has left several matters un-said,

Even the parliament or the State Legislature has not thought it fit to make a law regulating the conduct of Ministers. It would be inadvisable for the

Court to seek to supply the omission by evolving a law/code itself, and then enforce it. The Ministers are primarily responsible to the Legislature.

Any deviation from moral and ethical standards is a matter for the Legislature, and ultimately for the people to deal with.

The petitioner as Chief Minister of Tamil Nadu can be a partner in a firm and the same cannot be questioned and in fact, no such question has

been raised. The only question raised is that the alleged offences were committed by her in the purchase of the property belonging to TANSI by

the said firms. To answer the said charge u/s 169, I.P.C., there must be a prima facie case against the petitioner.

Section 43 I.P.C. says the meaning of the word ''illegal'' includes:-

(i) everything which is an offence;

(ii) everything which prohibited by law; and

(3) everything which furnishes ground for a civil action.

We have to see whether any such illegal act has been committed by the petitioner, who was legally bound to do which is legal and omitted to do

which is illegal. The word ""offence"" has been defined in Section 3(38) of the General Clauses Act (Act 10 of 1897)-

Offence"" shall mean any act or omission made punishable by any. law for the time being in force;

According to the definition, an act or omission made punishable by any law is an offence. It is clear that any breach in following a Government

Order cannot be an offence punishable under I.P.C. This is one of the reasons which would stand against the respondent to frame charge against

the petitioner for an offence u/s 169 I.P.C. When there is no material regarding the substantial ingredients to make out the said offence, it cannot be

said that there is prima facie case against her or that the materials available on record are sufficient enough to convert into evidence at the time of

trial to make out an offence u/s 169, I.P.C.

The next major charge framed against the petitioner is for an offence punishable u/s 409, I.P.C. Criminal breach of trust is defined u/s 405,

I.P.C. For the offence of criminal breach of trust by public servant or by banker, merchant or agent, the punishment is provided u/s 409, I.P.C.

The major argument in respect of Section 409, I.P.C. by the petitioner is that both the properties purchased by M/s. Jaya Publications and M/s.

''Sasi Enterprises are immovable properties which are not covered u/s 405, I.P.C. and therefore, not punishable u/s 409, I.P.C.

The major ingredients to make out an offence punishable u/s 409, I.P.C. against the petitioner are:-

(i) That the petitioner was a public servant;

(ii) that she was in such capacity entrusted with the property in question or with dominion over it;

(iii) that she committed criminal breach of trust in respect of it;

Learned counsel for the petitioner has argued that the property covered under the said Section is only movable property because

misappropriation"" should be there. According to the petitioner Section 403, I.P.C. deals with ""immovable property"" and likewise the word

''property'' used in Sections 405, 407 and 408 means only movable properties because such properties are liable for misappropriation.

Learned counsel for the petitioner eloquently argued that an immovable property cannot be misappropriated and even by a mere reading of the

Section would go to show that it deals with movable property and that he is unable to lay his hands on any decision which says that immovable

property can be misappropriated and for such misappropriation punishment can be awarded u/s 409 I.P.C To substantiate his argument, learned

counsel for the petitioner has relied on two decisions. In Chandan Lal v. Emperor, AIR 1926 Lah. 478 wherein it was held that criminal breach of

trust cannot be committed in respect of immovable property. In U. Ka Doe v. Emperor, AIR 1930 Ran. 158 it was held that Section 405, I.P.C.

refers only to movable property.

Mr. N. Natarsjan, learned counsel for Public Prosecutor, has relied on a decision of the Supreme Court in R.K. Dalmia Vs. Delhi

Administration, wherein it was held:--

We are of opinion that there is no good reason to restrict the meaning of the word ''property'' to movable property only when it is used without

any qualification in Section 405 or in other sections of the Indian Penal Code. Whether the offence defined in a particular section of the Indian

Penal Code '' can be committed in respect of any particular kind of property will depend not on the interpretation of the word ''property'' but on

the fact whether that particular kind of property can be subject to the acts covered by that section. It is in this sense that it may be said that the

word ''property '' in a particular section covers only that type of property with respect to which the offence contemplated in that section can be

committed.

Section 22 I.P.C. defines ''movable property''. The definition is not exhaustive. According to the section the words ''movable property'' are

intended to include corporeal property'' of every description, except land and things attached to the earth or permanently fastened to anything

which is attached to the earth. The definition is the expression ''movable property'' and not of ''property'' and can apply to all corporeal property

except property excluded from the definition. It is thus clear that the word ''property'' is used in the Code in a much wider sense than the

expression ''movable property''. It is not therefore necessary to consider in detail what type of property will be included in the various sections of

the Indian Penal Code.

Learned senior counsel has urged that the word ''property'' used in Section 405, I.P.C. includes immovable property also. When we see the

above decision, it is clear that while interpreting the word ''property'' Their Lordships have given importance to the reason that on the fact, whether

that particular kind of property can be subjected to the acts covered by that Section. Learned counsel for the petitioner argued that in the case of

R.K.Dalmia, the property misappropriated was ""funds"" and not an ""immovable property"" and therefore, it cannot be said that the said decision has

laid down that the word ''property'' in Section 405 includes immovable property. Learned counsel further argued that the said decision deals only

about ''actionable claims'' and not about ""immovable property"". As contended by learned counsel for the petitioner, the word ''property'' in Section

405, IPC can be take for a wider meaning than movable property and at the same time, no decision has been referred to before me to show

specifically, that the word ""property"" in the said Section would include ""immovable property"" also.

In Common Cause, A Registered Society Vs. Union of India and Others, , it was held-

A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. There has, therefore,

to be a property belonging to someone which is entrusted to the person accused of the offence u/s 405. The entrustment of property creates a trust

which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner.

The expressions ""extrusted with property"" and ""with any dominion over property"" used in Section 405 came to be considered by this Court in

Central Bureau of Investigation, SPE, SIU (X), New Delhi Vs. Duncans Agro Industries Ltd., Calcutta, and the view earlier expressed was

reiterated. It was held that the expression ""entrusted"" has wide and different implication in different contexts and the expression ""trust"" has been

used to denote various kinds of relationships like trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee.

As already stated, in the circumstances of the case, it cannot be said that the petitioner is either entrusted with the property or dominion over

the property as contemplated u/s 405, I.P.C. In the instant case, there is no material to come to the conclusion that any such trust has been created

in respect of the said property and the relationship between the petitioner and TANSI is not one of a trustee and beneficiary. In such

circumstances, the argument of learned counsel for the petitioner that there cannot be any charge for an offence punishable u/s 409, I.P.C., in

respect of immovable property cannot be brushed aside easily.

Section 409, I.P.C. contemplates ""in any manner entrusted with property, or any dominion over property in his capacity of a public servant"".

From the said section, it is not only entrustment, but also dominion over the property In his/her capacity as a public servant should be made out to

satisfy the main ingredients of the said Section.

(a) Chambers 20th Century Dictionary (1983 Edition) at page 370 defines the word ""domain"" as ""what one is master of or has dominion over;

an estate; territory; ownership of land.

(b) In P. Ramanatha Aiyar ""The Law Lexicon the Encyclopedic Law Dictionary"" (1997 Edition) defines the word ""dominio"" as ""a term in Spanish

law to mean the most complete right of ownership"" and the meaning of the word ''dominion'' along with other meaning ""lands or domain subject to

sovereignty or control"".

(c) (In Black''s Law Dictionary (6th Edition) published in 1990 at page .486 says ''dominion'' as ""Generally accepted definition of ""domination"" is

perfect control in right of ownership. The word implies both title and possession and appears to require a complete retention of control over

disposition.

When we see the meaning of the word dominion, it gives a perfect control in right of ownership of the property. Can it be said a public servant,

who holds a particular portfolio, has dominion over land (i.e.) a perfect control in right of ownership. From the meaning of the word dominion also,

it cannot be said that the petitioner as Chief Minister or even Minister for Industries had a perfect control in right of ownership or in such capacity

as minister, she had both title and possession of the said land. Therefore, there was no entrustment of the said property and when we see the

meaning of the word ''dominion'', it cannot be said that she had such dominion over the said properties either as Chief Minister or as Minister for

Industries. Therefore, it cannot be said that there is a ground for presuming that the accused has committed the offence and the Court can

justifiably say that a prima facie case against her exists and so, frame a change against her for committing the said offence.

The next major charge against the accused is one u/s 13(1)(c) of the Prevention of Corruption Act, 1988. Section 5(1)(c) of the Prevention of

Corruption Act, 1947 is analogous to that of Section 13(1)(c) of the new Act. Various Courts have held that Section 5(1)(c) of the Prevention of

Corruption Act, 1947 and Section 409 I.P.C. are identical. The Supreme Court considered this question in Om Prakash Gupta vs. v. State of U.P

AIR 1957 S.C. 453 and held that they are not identical in essence, import and content and, that they are distinct and separate"" Their Lordships

have given three major points of difference between these two Sections and held that they are distinct and separate. As held by the Supreme Court

if charges are framed u/s 409, I.P.C. and u/s 13(1)(c) of the Prevention of Corruption Act, 1988, they are maintainable. We have already seen

that in the circumstances of the case, a charge u/s 409 has not been made out. Section 13(1)(c) deals with dishonest or fraudulent misappropriation

or otherwise converting for his own use any property entrusted to a public servant.

Section 24, I.P.C. defines, the word ""dishonestly""-

Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, said to do that things

dishonestly.""''

It was alleged that the petitioner herein has caused wrongful loss to TANSI and wrongful gain to M/s. Jaya Publication and M/s. Sasi Enterprises.

When we look into evidence available on record there is no entrustment or dominion over the properties on which misappropriation was alleged to

have been committed by the accused. Without entrustment or dominion over the property the offence cannot be proved and hence the subsequent

event of wrongful loss or wrongful gain need not be considered.

Section 25, I.P.C. defines ''fraudulently'' as ""a person is said to do a thing ""fraudulently"" if he does that thing if he has sufficient cause to believe

that thing but not otherwise."" If a person did anything with intend to defraud, that person said to have did the thing ""fraudulently"". In the year 1985,

the proposal to sell the property was taken by TANSI, a Corporation wholly owned by the Government of Tamil Nadu. Article 298 of the

Constitution of India empowers the Union or State to carry on of any trade or business and to the acquisition, holding and disposal of property and

the making of contracts for any purposes. The Government of Tamil Nadu for the purpose of carrying on business have started TANSI. It is a

company and as such, it has an independent existence. The company has Directors, Managing Director and Chairman as contemplated under the

Companies Act. After taking the decision for disposal of the property, there were some unsuccessful auctions earlier and after the petitioner

became the Chief Minister of Tamil Nadu the earlier proposal for disposing of the property was renewed for the purpose of getting more funds for

the business of the said Corporation. The property was purchased in public auction and it is not like any other case to say that the accused did

anything fraudulently. There must be material to make out a ""prima facie case"" or to have a ""presumption"" to come to the conclusion that there

exists a prima facie case. There must be some material to connect the accused with the offence. The reasons stated on the side of the prosecution

that the accused presided over the meeting in which the proposal to sell the property was renewed that the petitioner was the Chief Minister and

also Minister for Industries at the relevant point of time are all remote circumstances which do not have a direct bearing with the charge. Therefore,

it is a case wherein there is no material even to presume the existence of a prima facie case. In such circumstances, there are no materials to frame

a charge u/s 13(1)(c) of the Prevention of Corruption Act, 1988.

Another charge has been framed against the accused u/s 13(1)(d) of the Prevention of Corruption Act, 1988 for criminal misconduct by the

petitioner. The ingredients of Section 13(1)(d) of the Prevention of Corruption Act are:--

(1) the persons should hold office as public servant;

(2) that person should obtain any valuable thing or pecuniary advantage for himself or any other person;

(3) such obtaining of thing or pecuniary advantage is without any public interest.-

We have stated the various circumstances under which the properties were purchased by M/s. Jaya Publications and M/S. Sasi Enterprises

Public interest"" means, an act beneficial to the general public. Action taken in public interest necessarily means an action for public purpose. The

very facts of the case would go to show that the properties were not purchased by corrupt or illegal means by abusing the official position as public

servant or by obtaining pecuniary advantage discarding public interest. The purchase was effected in the auction held by TANSI. The right to sell

the property was with the said Corporation and the Officers incharge of the Corporation thought fit to sell the properties in favour of the two firms.

No material has been produced before me to show that the accused obtained for herself or any other person any valuable thing or pecuniary

advantage by abusing her position as public servant or obtained any valuable thing or pecuniary advantage while holding the office as a public

servant or obtained any valuable thing or pecuniary advantage without any public interest. Simply for the reason that two of the firms wherein the

petitioner was a partner have purchased the properties in the auction would not lead to the presumption of existence of a prima facie case against

the accused especially in the absence of any material to that effect. The end cannot justify the means. It is well settled that unless there are grounds,

no charge can be framed against the accused.

Apparently one may feel that being Chief Minister and Minister for Industries she has misused her official position to take pecuniary advantage

without any public interest in purchasing the said properties. What is required under criminal law is materials to make out a prima facie case against

the accused at the time of framing of charge. When such material is lacking no charge can be framed u/s 13(1)(d) of the Prevention of Corruption

Act, 1988.

The next charge against the petitioner is u/s 420 I.P.C. read with Section 120-B I.P.C. To prove criminal conspiracy punishable u/s 120-B

I.P.C., there must be an agreement between two or more persons to do or caused to be done (i) an illegal act or (ii) an act which is not illegal by

illegal means. Section 10 of the Indian Evidence Act deals with things said or done by conspirator in reference to common design. There must be a

reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong. In Shivnarayan

Laxminarayan Joshi and Others Vs. State of Maharashtra, , it was held-

It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can only be

proved largely from the interferences drawn from acts or illegal omissions omitted by the conspirators in pursuance of a common design.

To prove the said offence, there must be evidence to show that two or more persons have agreed to do or caused to be done an illegal act or an

act which is not illegal by illegal means and therefore, first of all, we must see whether the accused did any illegal act and whether there is a prima

facie case against the accused to frame charge for such illegal act or an act which is not illegal by illegal means. The other offences shown in the

charge are already dealt with. The only offence which has to be considered is u/s 420 I.P.C.

Section 420 I.P.C. is the offence alleged to have been committed by the accused in pursuance of the conspiracy. Section 415 I.P.C. defines

cheating. The main ingredients of the said offence are:-

(i) deception of any person;

(ii) fraudulent or dishonest entrustment to deliver any property;

(iii) to cause wrongful loss to that person to have wrongful gain either to himself or to any other person.

Learned senior counsel has argued that the case of the prosecution is that the petitioner, by showing under valuation for the property, has paid

registration fees much lesser to the actual fee to be paid. Sections 43 and 47(a) of the Indian Stamps Act are relevant provision to prosecute the

offender. Learned counsel for the petitioner has relied on a decision in Lawrance Rt. Rev. Map. Ephaream v. State of Tamil Nadu, 1997 (II)

C.T.C. 193 wherein it was held that the authority for registration or the Collector has got power to collect the additional payment of stamp duty

within two years from the date of registration. For collecting the fees required, the charge against the accused for an offence u/s 420 I.P.C. is not

maintainable. This charge should also to be decided along with the facts which we have shown supra while dealing with the charge u/s 409 I.P.C. It

was an auction sale and whether the accused has deceived TANSI and fraudulently or dishonestly induced the said company to deliver the

property is a matter which is in dispute. To frame a charge u/s 420 I.P.C. there must be a legal presumption to say that the petitioner had deceived

the said company and fraudulently and dishonestly induced the said company to deliver the said properties in the name of the firms. As already

stated since the property was sold in public auction and the registration fees was paid, no independent charge for an offence u/s 420 I.P.C. can be

made out and the charge is depending upon the other charges. The fact of the case is such that if there is material to frame the charge under any

one of the Sections, there will be materials for framing the charges for other offences though they are different and distinct. In the circumstances of

the case, the very question of deception, fraudulent and dishonestly inducing delivery of property cannot arise and in fact there is no such material

to presume that the accused has committed an offence punishable u/s 420 I.P.C.

Learned senior counsel for the Public Prosecutor has argued that the Special Judge has found sufficient materials and therefore, has framed

charges against the accused and the same need not be interfered with at this stage, since there are materials to presume that the accused has

committed the offence. As already stated, the law is well settled that the trial Court at the time of framing of charge upon considering police report

and the documents sent with it u/s 173 Cr.P.C. and making such examination, if any, of the accused and after giving the prosecution and the

accused an opportunity of being heard, considers the charge against the accused to be groundless, it can discharge the accused and on the

contrary, if the Court is of opinion that there is ground for presuming that the accused has committed the offence to be tried and adequatedly

punished by the said Court, charge can be framed against the accused. Therefore, if there are sufficient grounds for presuming that the accused has

committed an offence, charge can be framed. Even for presuming so, there must be some ground and if the offence shown in the charge sheet to be

groundless, the Court can discharge the accused. As stated supra, in the case of State of Bihar Vs. Ramesh Singh, . Their Lordships have

expressed the view that at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the

accused has committed the offence, there exists a prima facie case to proceed with the trial. In State of Maharashtra, Etc. Etc. Vs. Som Nath

Thapa, Etc. Etc., it was held that when there was ground for presuming that the accused has committed the offence, the Court can justifiably frame

charge against him for committing that offence. In Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, . Their

Lordships have held that to find out the ""ground"" that the accused has committed the offence, as the order framing the charges does substantially

affect the persons liberty and cannot be said that the Court must automatically frame charge without adverting to the material on the record by

blindly adopting the decision of the prosecution. In State of Karnataka Vs. L. Muniswamy and Others, . Their Lordships have held that the Court

possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if rebutted, is

such on the basis of which conviction can be said reasonably to be possible. In Satish Mehra Vs. Delhi Administration and Another, lays down that

the Court has got power to consider even materials which the accused himself produced at the stage contemplated u/s 227 of the Code (in

Sessions cases). Therefore, framing of charge is not an empty formality to be observed by the Court and in order to safeguard the person''s liberty,

unless there are grounds to presume prima facie case against the accused, no charge can be framed and he is entitled for discharge.

Bearing this view in mind when the case against the petitioner herein is considered, it is clear that ""there is no ""ground"" to frame any charge

against the petitioner and as such the charge framed against her by the trial Court has to be set aside and she has to be discharged.

In the result, Crl.R.C. No.-406 of 1998 is allowed and the petitioner/accused in discharged u/s 239 Cr.P.C. Crl.R.C. No.606 of 1999 is

allowed and the charges framed against the petitioner/ accused in C.C. No.4 of 1997 are set aside. In view of the order passed in the above two

petitions, Crl.R.C. No.929 of 1999 is dismissed as unnecessary. Crl.R.C. No.930 of 1999 is allowed and the charges framed against the

petitioner/accused in C.C. No.13 of 1997 are set aside and the petitioner is discharged u/s 239 Cr.P.C.