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Judgment
M. Karpagavinayagam, J.—The God is omnipotent, omniscient and omnipresent. Now, we have been seeing that there is a constant and
continuous attempt being made to replace the word ""God"" by the word ""corruption"".
Day-in and day-out there is a preaching of sermons listing out the evils of corruption and raising slogans with catch-words against the corruption.
Similarly, we have been seeing that there are positive and constructive remedial measures and steps taken for its eradication by the agency
concerned. We have also been seeing that there is a constant debate throughout the globe regarding the magnitude and multi-dimensional causes of
corruption. But even then, ""omnipresent"" corruption with its tentacles poses a great threat to the welfare of society and grows in menacing
proportion.
An impression is also created by and large that corruption is an inevitable evil. However, the persons who are at the helm of affairs do forget the
popular saying:
Dharmo Rakshathi Rakshithaha
If we protect ""Dharma"", Dharma will protect us. If we protect ""law"", law will protect us. To put it differently, if we do not protect law, law will not
protect us.
In our democratic set up based on the concept of ''Rule of Law'', everybody shall accept that the law is supreme. Even the ruler is under the
God and law. Everyone is under the supremacy of law. Whoever he may be; however high he may be, no matter how powerful he may be, and
however rich he may be, but he is under the law.
In British India, corruption was kept under check by the effective enforcement of laws by the police. After independence, we had the Prevention
of Corruption Act, 1947. Later, the Prevention of Corruption Act, 1988 came into force to contain corruption. Vigilance Commission came into
being both at the Centre and the States to deal with the compLalnts of corruption. Despite all these, we witness a steady rise in the magnitude of
corruption in public life. The above measures have not prevented the slide in the overall integrity of those in public service.
It is said that the corruption has now become a way of life and permeates almost every sphere of our daily lives. It is also said that there is
virtually no activity of the Government not tainted by corruption in some measure and no Government programme is safe. Corruption in the
administrative set up hampers efficiency of the Government.
The law-enforcing agency cannot turn a blind eye to the present sorry state of affairs marked by rampant corruption. Corruption basically
implies ''misuse of public office for private profit.'' The range of transactions and deals involved are vast from the elemental speed money deals to
Commissions on simple purchases and works contracts.
There is an imperative need for cleansing of the Administrative System which has been nurturing corruption. The people as such are now fed up
with corruption and abuse of power at all levels. Greasing the palms continues to be a way of life for anything and everything. In the words of
Krishnaiyer, J ""gratification is speed money"".
At present our country has been afflicted with this virus of corruption which is eating into the vitals of our character and strength. Corruption or
graft is a cancer which has to be contained, if it cannot be completely eradicated. Corruption is becoming more and more organised and
sophisticated.
Once upon a time, there was a feeling in the minds of the people that an act of giving bribe or the act of getting bribe for getting things done,
was considered to be an act of disgrace. Could it be said that such gracious,.feeling continues in our society? Is it not true, that the public servants,
who are clean, are heckled as (useless) Who is responsible for this unhealthy degeneration? What are the ways to attain independence from this all
powerful evil? It cannot be denied that every wing of the society and every leader of the various sects of the whole country like parents. Teachers,
politicians, heads of the Government, Press, etc. shall bear the responsibility. If the ""Zurasic Park"" is allowed to grow further, certainly there would
be a situation, where the lawlessness will be the law of the country. The amendments by introducing various Acts alone woiild not be sufficient, to
eradicate the evil of corruption. But, the mending of the mental make up of the public is quite essential, as that alone would create a corruption-free
society to a larger extent.
There is a famous song in Tamil:
(The gangs that loot
Never stop their plots;
The groups making laws
Never stop fighting the flaws.
But lo! none can accomplish this feat
unless the thieves change their heart:)
The above view of the great Pose Pattukottai Kalyanasundaram is to be taken note of, in the present juncture.
Hence, a systematic effort to inculcate, values of integrity, honesty and probity in public life need to be undertaken on a large scale at all levels
in the entire country so that we can have a clean and corrupt-free administration in India as a whole.
These are all the thoughts which came up in my mind in the context of the present situation, while dealing with this petition.
This is a case which relates to the alleged Acts of corruption committed by the former Chief Minister, the former"" Ministers and other Officials.
It is vehemently stated in this case that false and frivolous accusations of corruption have been made through this charge sheet against the
adversaries, the past rulers, exposing them to social ridicule with an ulterior motive of wreaking vengeance due to past animosity at the instance of
the present rulers.
This objection by the persons concerned who have been charge-sheeted now cannot be given due importance by this Court, as it is the settled
position of law that this Court at the threshold of commencement of trial would not go into the question, whether the accusation is genuine or mala
fide. However, it shall be stated that the person facing the corruption charges cannot be denied his right to raise the legal issues even at this stage in
order to ventilate his grievance before this Court, though it is procLalmed that the said person is not above law.
Let us now come to the present petition. This is the revision petition filed by Mr. V. R. Nedunchezhian the petitioner (A-3) against an order
dismissing his application by rejecting his discharge and framing the charges under the relevant sections of Indian Penal Code and Prevention of
Corruption Act, dated 14-5-1998.
The grievance expressed by the petitioner in this petition is that without any material, the learned Special Judge framed charge against the
petitioner (A-3) and rejected to discharge him.
Mr. V.R. Nedunchezhian, arrayed as A-3 in C.C. No. 15/97 is the former Finance Minister of Government of Tamil Nadu during the relevant
period 1995-96. After the formation of the new Government, a compLalnt dated 13-8-1996 against the former Chief Minister, the former
Ministers and officials over the irregularities in the purchase and supply of colour T.V. sets in the villages, was given by one Narayana, I.A.S. to the
Inspector General of Police (Crimes), Madras and the same was forwarded by the I.G. of Police on 14-8-1996 with a direction to the Deputy
Superintendent of Police to register the case and to take necessary further action and accordingly, it was registered in Cr. No. 21 /96 for the
offences under Sections 120B readwith 109 read with 409, I.P.C. and Section 13(2) read with 13(1)(c) and (d) of Prevention of Corruption Act,
1988.
Since there is no allegation against the petitioner, the former Finance Minister, in the compLalnt, his name was not mentioned in the F.I.R. After
finishing the investigation, the charge-sheet was filed against 11 persons including the petitioner as A-3 under the relevant sections of the Indian
Penal Code and of Prevention of Corruption Act, 1988, on 23-10-1997. This was taken on file by the XII Additional Special Judge, Chennai in
C.C. No. 15/97.
On service of summons, all the accused persons filed various applications seeking for different reliefs before framing the charges. As one
among them, the petitioner filed an application in Crl. M.P. No. 390 of 1998 u/s 239, Cr. P.C. requesting to discharge. Though the applications
were separately filed by all the accused, the learned trial Judge disposed of those applications by common order on 14-5-1998. In the said order,
the learned trial Judge considered the contention urged by the petitioner and rejected his prayer for discharge holding that there are some materials
and framed charges against him and others. This revision has been filed before this Court, challenging the order impugned so far as he is
concerned.
The prosecution case is that during the year 1995-96, the petitioner (A-3) along with 10 other accused entered into a criminal conspiracy to
do illegal act in the purchase of colour T.V. sets by the Government for the purpose of distribution in the villages and obtained a pecuniary
advantage by abusing the office of Public Servant as a Finance Minister and thereby committed the offences under Sections 120B, I.P.C. and
13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
The arguments advanced by the learned counsel for the petitioner, while assailing the impugned order could be summarised as follows:--
(i) Admittedly, the petitioner/accused had not received any illegal gratification from any other persons for approval of the purchase of the T.V. sets.
Further, there is nothing on record to show that the petitioner had in any way helped other to get the alleged illegal gratification in the said
transaction . There is also nothing to show that the conspiracy had taken place between the petitioner and others.
(ii) The charge levelled against the petitioner is totally groundless and it was made with mala fide intention only to damage his name and reputation.
Apart from the only signature of the petitioner/A-3 in the Note Proposal File dated 11-12-1995, there is nothing in the entire record of case to
implicate him as an accused. On 9-12-1995 the Finance Secretary himself has signed his name on the Note Proposal File. It was later circulated to
the petitioner on 11-12-1995. Since the Finance Secretary has already endorsed and signed, the petitioner as a Finance Minister put his signature
on 11-12-1995. Therefore, the charges framed against the petitioner are illegal and he is liable to be discharged.
The counsel for the petitioner in order to sustain his plea regarding the discharge would cite several authorities.
In reply to the said contentions, the learned Public Prosecutor would submit as follows:--
(i) The present revision petition is not maintainable against an order of framing charges which is an interlocutory order, as no revision would lie
against the same u/s 397(2), Cr. P.C. as well as Section 19(3)(c) of the P.C. Act.
(ii) Though the petitioner has not received any pecuniary advantage for himself, Section 13(1)(d)(i) of P.C. Act, 1988 would apply to the case of
the petitioner as he has abused his official position by obtaining pecuniary advantage for others.
(iii) Though the Finance Secretary Mr. Rajaraman, witness, has raised finance objection, the petitioner signed the file which would tantamount to
illegal omission, which was done in pursuance of the conspiracy.
(iv) The petitioner is charged u/s 120B, I.P.C. As per Section 10 of the Evidence Act, where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence, anything said, oral or written by any one of such persons is a relevant fact for proving
existence of conspiracy. It is not necessary that there should be proof of fact that the conspiracy hatched.
The learned Public Prosecutor would also cite as many authorities in order to substantiate his submissions.
Having regard to the various pleas raised on either side, the two important questions would arise for consideration in this case:
(1) Whether the impugned order is interlocutory in nature which prohibits the entertainment of the revision by this Court?
(2) Even assuming that the said revision is maintainable, can it be said that the impugned order is illegal and the petitioner is liable to be discharged?
The objection raised by the learned Public Prosecutor with reference to the maintainability of the revision is on the basis of the decision
rendered by the Apex Court in V.C. Shukla Vs. State through C.B.I., holding that no revision could be entertained against an order framing
charges which is an interlocutory order. This revision filed before this Court is under Sections 397 and 401, Cr. P.C. Though this Court has got
powers under Sections 397 and 401, Cr. P.C. to call for the records of any proceeding before any inferior Criminal Court and go into the
correctness, legality or propriety of any order any such proceeding of such inferior Court, u/s 397(2) the powers of revision shall not be exercised
in relation to an interlocutory order.
It is also pointed out by the learned Public Prosecutor that u/s 19(3)(c) of P.C. Act the Court shall not exercise the powers in revision in
relation to any interlocutory order passed by the Special Court in the proceedings under the Act. Therefore, if the Court comes to the conclusion
that the impugned order framing the charge against the petitioner is an interlocutory order, then this Court has necessarily to dismiss the petition as
not sustainable in law.
In V.C. Shukla Vs. State through C.B.I., , the Apex Court, while dealing with Section 11 of Special Courts Act, 1979, would hold that the
order framing charges is an interlocutory order and the appeal against the same is incompetent. While defining the interlocutory order, it is held as
follows (Paras 22, 23, 44 and 45):---
To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or
collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the
commencement of an action and the entry of the judgment. Untwalia, J. in the case of Madhu Limaye Vs. The State of Maharashtra, clearly mean
to convey that an order framing charge is not an interlocutory order but is an intermediate order... Thus, summing up the natural and logical
meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights
of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a
particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial at all.... As
the decisions of this Court in the cases of Madhu Limaye Vs. The State of Maharashtra, and Amar Nath and Others Vs. State of Haryana and
Another, were given with respect to the provisions of the Code, particularly Section 397(2), they were correctly decided and would have no
application to the interpretation of Section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue
of the non obstante clause.... We are satisfied that so far as the expression ''interlocutory order'' appearing in Section 11(1) of the Act is
concerned, it has, been used in the natural sense and not in a special or a wider sense as used by the Code in Section 397(2).
Thus, the meaning of ''interlocutory order'' as contained in Section 11 of Special Courts Act, was given by the Apex Court in consonance with
the avowed object of the introduction of the said Act. But, the decision in Madhu Limaye Vs. The State of Maharashtra, with which the Apex
Court in V.C. Shukla Vs. State through C.B.I., agreed, would clearly say that the order framing the charge under Criminal Procedure Code
affecting the rights of the parties would be revisable in the revisional jurisdiction. Therefore, it cannot be called to be an interlocutory order but as
interpreted by the Apex Court, it could be termed as an intermediate order, since it affects the lib-erty and rights of the parties.
Moreover, the impugned order in the instant case does not confine itself with the framing of charges alone, but also would advert to
consideration of the grounds urged by the petitioner for discharge and rejection of the same on giving the reasons. All the more reason, that the
impugned order giving reasonings passed by the trial Court for refusing to discharge can be subjected to the scrutiny by the revisional Court, in
order to find out whether the order is correct, proper and legal.
In Century Spinning and Manufacturing Co. Ltd. and Others Vs. State of Maharashtra, it is held as follows (para 16):--
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 charges 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.
It is also held by the Apex Court in State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., as thus:--
The order of framing of charge substantially affects the liberty of a concerned person.
Therefore, in order to find out whether the special Court has applied its judicial mind while passing the impugned order before framing charges,
which would substantially affect the right of the accused and while giving the reasons for the rejection of the grounds for discharge, the Court in
revisional jurisdiction has to necessarily entertain the revision to exercise its powers to correct the illegality committed, if any, by the trial Court.
In view of the above reasoning, I am of the considered opinion that the impugned order cannot be considered to be an interlocutory order, as it
has affected the right of the parties, so as to entitle the party from approaching this Court through this revision and as such, the revision is
maintainable.
Coming to the second point, it is quite relevant to quote the provisions under which the application was filed by the petitioner requesting for
discharge before the trial Judge.
Section 239, Cr. P.C. is as follows:--
When 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.
Under this section, when the trial Court considers that the charge against the accused is groundless, it shall discharge the accused by recording its
reasons.
Section 240, Cr. P.C. provides thus:--
Framing of charge.-- (1) If, upon such consideration, examination, if any, and hearing the Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his
opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and expLalned to the accused, and he shall be asked whether he pleads guilty of the offence charged or cLalms
to be tried.
Under this section, if he forms an opinion that the accused could be adequately punished for the offence on finding ground for presuming that the
accused committed the said offence, he shall frame charge.
The reading of both the sections would reveal that the decision as to whether to frame charge or not is to be taken by the trial Court only after
the application of judicial mind to the facts of the case.
Then, let us see the various authorities which would give the guidelines to the trial Courts for the process of invoking Sections 239 and 240 of
Cr. P.C. and other analogous provisions in Cr. P.C.
In R.S. Nayak Vs. A.R. Antulay and Another, , the Apex Court would observe as under (para 44):--
The Code contemplates discharge of the accused by the Court of Session u/s 227 in case triable by it; cases instituted upon a police report are
covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain somewhat
different provisions in regard to discharge of the accused. u/s 227, the trial Judge is required to discharge the accused if he ''considers that there is
no sufficient ground for proceeding against the accused''. Obligation to discharge the accused u/s 239 arises when ""the Magistrate considers the
charge against the accused to be groundless"". The power to discharge is exercisable u/s 245(1) when ""the Magistrate considers, for reasons to be
recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction.... In spite of the difference in the
language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.
In Ajay Malik v. State (1997) 1 Cur Cri 61 the Delhi High Court would make the following observation:--
The Court is not to frame the charge at the mere asking of the prosecution. It has to direct its judicial mind to the question as to whether or not the
charge is required to be framed. It is not a mere empty formality or a mere dressing on the salad. What is expected of the Magistrate is to give
reasons so that ""on the reading of the order one can perceive clearly as to how and on what basis the trial Court came to the conclusion that a
prima facie case was made out against the accused"". And, while furnishing the reasons he is neither expected nor required to either enter into a
lengthy discourse or to bring out a ponderous judgment. But then, giving of reasons is among the most important duties of the Court. It is a check
on unbridled discretion without which the freedom of Court may perhaps become unfettered and undirected and judging may become arbitrary.
In Ratnatraya Heat Exchangers Ltd. v. Lokendar nath Sharma (1997) 1 Cur Cri 184, the following is the observation made by the Punjab and
Haryana High Court:--
This Court on comparison of Section 227, Cr. P.C. held ""In Section 239, Cr. P.C. the words used are groundle Sections To my mind a reading of
Sections 227 and 239, Cr. P.C. gives an impression that a Magistrate has much less powers to discharge than the Sessions Judge is entitled to
discharge if he does not find that there are sufficient grounds for proceeding which means that even if there are grounds against the accused but
these may not be sufficient for proceeding. u/s 239, Cr. P.C. the Magistrate is entitled to discharge an accused if the charge against him is
groundless meaning thereby that there is absolutely no case against him. This position excludes the situation where there are some grounds which
may not be sufficient for proceeding. To hold that the charge is groundless, the situation can only be when there is no substance in the charge but to
hold that there are not sufficient grounds, this may not be situation. There may be some grounds and the charge may not be groundless but these
grounds may not be sufficient for proceeding.... To my mind his power for discharging u/s 239, Cr. P.C. are much narrower than the powers u/s
227, Cr. P.C. At the stage of framing of charges, a Magistrate had only to see whether a prima facie case regarding the commission of certain
offences is made out. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in
the case. He is not required to pass an order discharging the accused on consideration of case on merits at the stage of framing of charges without
affording an opportunity to prosecution to adduce evidence.
In Satish Mehta v. Delhi Administration (1996) 3 Cri 85 , the Apex Court would observe thus:--
In a situation arises u/s 239 of the Code, the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides
considering the police report and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused
for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which
shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally
affect even the very substainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the
ground"" may be any valid ground including insufficiency of evidence to prove charge.
In State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., , the Supreme Court would observe thus (at pp. 2454-55 of Cri LJ):--
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 a prima facie case against him exists, and so, frame charge against him for committing that offence.
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.
The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence in a probable
consequence, a case for framing of charge exists. 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 tnaterials brought on record by the prosecution has
to be accepted as true at that stage.
In Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, , the Apex Court would observe as follows:--
Section 227 itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that ""the Judge shall
discharge when he considers that there is no sufficient ground - for proceeding against the accused"". The ""ground"" in the context is not a ground for
conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the
time of framing of charge. The Court, therefore, need not undertake an elaborate inquiry in sifting and weighing the materials. Nor is it necessary to
delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record, if generally accepted, would
reasonably connect the accused with the crime.... Section 227 which confers power to discharge an accused was designed to prevent harassment
to an innocent person by the arduous trial or the ordeal of prosecution. The power has been entrusted to the Sessions Judge who brings to bear his
knowledge and experience in criminal trials.... The discretion exercised by the trial Court in discharging the appellant''s father was correct.
Although it was his moral obligation as manager of the family to protect the deceased and safeguard her life, but that by itself without anything more
is not sufficient to frame a charge against him.
It is manifest from the reading of the above decisions that the charges can be framed against any 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. As
shown earlier, it-is observed in catena of authorities that the prosecution must show a prima facie case against the accused in order to enable the
Court to frame a charge against him. If the evidence before the Court is of such type which if unrebutted and unchallenged by way of cross-
examination would not be sufficient enough to convict the accused ultimately, then the Court would not be justified in framing the charge against the
accused. The Court at that stage is under no obligation to make an elaborate enquiry by sifting and weighing the material to find out a case against
the accused beyond a reasonable doubt which is required to do at the time of the final hearing. The trial Court Judge at that preliminary stage is
required to find out whether there is any material which may lead to the inference that the accused has committed an offence. Thus, the charge can
be framed by the Court against an accused, if the material placed before it raises a strong suspicion that the accused has committed an offence. 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 during trial.
With the above background, it is to be seen now as to whether the learned trial Judge was justified in ordering the framing of the charges by
rejecting the petition filed by the petitioner for discharge.
The grounds mentioned in the impugned order passed by the trial Judge refusing to discharge are given below:--
(i) Though the petitioner knew very well that the Finance Secretary objected to the illegal price hike of Rs. 2,000/- for every set without taking into
consideration of the objections raised by his own Finance Department, he simply cleared the proposal for purchase of T. V. by signing the file on
11-12 -1995. Though he had not obtained any pecuniary advantage for himself, he enabled the"" others to obtain pecuniary advantage, which
resulted in the loss to the Government.
(ii) In this case, it is found that all the accused were involved in the criminal conspiracy to commit criminal breach of trust in respect of the funds
belonging to the Government and that the public servants, viz., A1 to A7 misused their position as public servants committed criminal misconduct
and gained pecuniary advantage either for themselves or for others. One of the characteristics of conspiracy will always be secrecy. The fact that
A3 failed to attach any importance to the valid and serious objections raised by his own Finance Department for the proposal to purchase of T. V.
set at a price higher than the market price and affixed his signature in the file would be an indicative factor to show that the petitioner was a party to
conspiracy. Whether the petitioner had knowledge about the shady transactions or . not is to be proved by the prosecution only during the course
of trial. But for his approval, the Government would not have suffered a great loss.
On the basis of these findings referring the various materials referred to above, the learned trial Judge framed two charges. The first charge is
the general charge relating to conspiracy against all the accused, while the second charge is a specific charge framed against the petitioner A3. The
following is the operative portion of the order framing charges against A3, the petitioner:--
In the result it is held that there are sufficient grounds to frame charges against the accused and charges should be framed as follows:--
(1) u/s 120(b) IPC r/w 13(2) r/w 13(1)(d)(ii) and (111) and 13(1)(c) of Prevention of Corruption Act, 1988 r/w 109, IPC 409 IPC,409 r/w
109,IPC against A1 to A11.
(2) u/s 13(2) r/w 13(l)(d) (ii) and (iii) of Prevention of Corruption Act against A3.
Before dealing with first charge being a conspiracy charge framed against all the accused including the petitioner, let us first consider the second
charge being specific charge, namely, Section 13(2) read with 13(1)(d)(ii) and (iii) of the P.C. Act framed against petitioner.
Section 13 provides thus:--
A public servant is said to commit the offence of criminal misconduct,
(a) to (c)....
(d) if he
(i)....
(i) by abusing his position as a public servant, Obtains for himself or for any other person any valuable thing or pecuniary advantage;
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
(e)....
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but
which may extend to seven years and shall also be liable to fine.
Though the charge had been framed against the petitioner u/s 13(1)(d)(ii) and (iii), the learned Public Prosecutor would submit that Section
13(1)(d)(i) of the P.C. Act isz attracted to the case of the petitioner. In the counter it is mentioned as follows:--
The respondent submits that Section 13(1)(d)(i) of the Prevention of Corruption Act is attracted in the case of the accused petitioner though the
petitioner has not received any pecuniary advantage for himself.... The respondent submits that Section 13(1)(d)(i) of Prevention of Corruption Act
is attracted if the accused as a public servant by abusing his official position obtains pecuniary advantage to others.
In view of the different charges pointed out by the learned public prosecutor, though the said charge had not been framed, let us quote the said
provision also, that is, Section 13(1)(d)(i):--
A public servant is said to commit the offence of criminal misconduct, if he, by corrupt or Illegal means, obtains for himself or for any other person
any valuable thing or pecuniary advantage.
From the reading of all the above three provisions, it is cleat that the main ingredient is that the accused being a public servant shall obtain
pecuniary advantage or valuable thing either for himself or for any other person, either by abusing his position as public servant or while holding the
office as public servant without any public interest. So, the obtaining the pecuniary advantage or valuable thing which is common to all these three
clauses in Section 13(1)(d) is the essential element to be alleged on the basis of the materials for framing the charges.
In this context, the observation in the impugned order and the statement made by the respondent in the counter are relevant. In the impugned
order in para 21 it is stated as follows:--
Through A3 had no obtained any pecuniary advantage for himself, he enabled others to obtain pecuniary advantage which resulted in the loss to
the Government.
In the counter in para 2 it is stated as follows"":--
The respondent submits that Section 13(1)(d)(i) of the Prevention of Corruption Act is attracted in the case of the accused petitioner though the
petitioner has not received any pecuniary advantage for himself.
Thus, it is the admitted case of the prosecution that the petitioner did not receive any pecuniary advantage for himself nor obtained any money
or valuable thing for others.
The word ""obtain"" as per Oxford English Dictionary, Vol. X, (page 669) would mean (a) ""to come into possession or enjoyment of
(something) by one''s own effort, or by request; (b) to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get"".
Therefore, the word ""obtain"" signifies an active conduct on the part of the person in obtaining a thing either for himself or for others.
While interpreting the word ""obtains"", the Apex Court in M. Narayanan Nambiar Vs. State of Kerala, , would observe as follows (Para 10):--
Obtains"" means acquire or get.... On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a
public servant for himself, or for any other person by abusing his position as a public servant, falls within the mischief of the said clause.
In view of the above legal position, in the absence of any material to show that the petitioner obtained any pecuniary advantage or valuable
thing for himself or for any other person, framing of the charge u/s 13(1)(d)(ii) and (iii) or evenfor Section 13(1)(d)(i) as how projected by the
prosecution in the counter filed before this Court, is not valid and as such, the said charge against the petitioner is groundleSections Consequently,
the petitioner is entitled to be discharged for the said offence u/s 13(1)(d) read with 13(2) of the P.C. Act.
Let us now come to the charge of conspiracy framed as first charge against all the accused including A3, the petitioner herein.
For dealing with the question, whether the framing of the charge for conspiracy was on the basis of the materials available on record, it is quite
appropriate to deal with the entire materials collected by the prosecution leading to the presentation of the charge sheet.
There are 123 witnesses cited in the charge sheet. From the statements recorded during the course of investigation, the documents relied upon
by the prosecution and the charge sheet and the memo of evidence filed in this case, the following facts would emerge:--
(a) Al Selvi JayaLaltha was the Chief Minister of the State of Tamil Nadu during the relevant period. At the instance of Al, a Cabinet note was
prepared by A2, the then Minister for Local Administration for discussion over the subject of providing colour T. V. sets for habitation in rural
areas. On 20-7-1995, the Cabinet meeting was held. All the Ministers including Al Chief Minister, A2 Selvaganapathy, the Minister for Local
Administration and the petitioner (A3) V. R. Nedunchezhian, the Finance Minister participated. The Cabinet decided -in favour of the proposal.
(b) Al Selvi Jayalalitha announced on 15-8-1995 on Independence Day Celebration at the Secretariat, that colour Television sets numbering
50,000 would be given to all habitations in villages involving an expenditure of Rs. 75 crores before March 1996. In October 1995, T. V.
Approval Committee was constituted consisting of A4 H. M. Pandey, I.A.S., Secretary to Rural Development Department as Chairman, A5 M.
Sathiyamoorthy, I.A.S., Director, Rural Development as Member Secretary and. Machendranathan, IAS, Director of Town Panchayats as a
Member.
(C) On 6-10-1995 quotations were invited from the T. V. Manufacturers numbering about 197. However, only 6 T. V. Companies were allowed
to participate in the process of acquiring T. Vs. following the Limited Tender System instead of open Tender System. After negotiations with these
six companies, the price of one T. V. set was fixed at Rs. 14,500/- for all the T.V. Companies.
(d) Mr. Machendranathan, I.A.S., Member of the Committee objected to the procedure adopted by the Approval Committee and that the price
fixed was more than the amount which was quoted by one of the six Companies. The Approval Committee conducted meetings on five occasions
though was attended by the said Machendranathan, objecting to the above procedure, which is in violation of the rules, did not sign the minutes.
However, this proposal was sent to the Government for approval.
(e) Mr. Rajaraman, the Finance Secretary, one of the witnesses in this case, raised number of objections on 13-11-1995 stating that Open Tender
System should have been called as per the G.O. dated 22-8-1994, that the prices fixed should be compared with the market price and bulk
orders should result in reduced prices and that the time limit for the receipt of quotation should have been extended and thereby"" prices of T.V.
sets could have been further reduced.
(f) When A10 Sasikala and All Bhaskaran came to know about the delay in the file informed A1 Selvi Jayalalitha, who instructed her Secretary
Varadarajulu, I.A.S. to check up the reason for the delay in processing the file. He came to know that Mr. Rajaraman, Finance Secretary raised
objections. This was informed by Varadarajulu, Secretary to the then Chief Minister on 29-11-1995. Therefore, she called a special meeting at her
camp office at No. 36, Poes Garden on 30-11-1995 on a public holiday. The invitees attended are A3 Selvaganapathy, A6 Haribhaskar, then
Chief Secretary, Varadarajulu, then Secretary to Chief Minister, Rajaraman, Finance Secretary, A4 H. M. Pandey, I.A.S. and A5
Sathiyamoorthy, IAS.
(g) In the said meeting, Mr. Rajaraman, Finance Secretary expLalned the objection of the Finance Department to the then Chief Minister in details.
Then, the Minister for Local Administration explained the views of the Rural Development Department. After hearing the different views of the
Finance, and Rural Development Departments, the then Chief Minister Selvi Jayalalitha decided to approve the proposal of the Rural Development
Department to place orders for the purchase of Colour T. V. sets at the rate of Rs. 14,500/- per set with those six Companies without adopting
Open Tender System, overruling the views of the Finance Department.
(h) Then, the Secretary Dr. Narayan, I.A.S. on perusing the note of the Finance Secretary instructed to prepare the revised note for circulation
incorporating the points raised by Finance Department. On pro rata basis as per the instructions of the Secretary, allotment to the six Companies
for the supply of various number of T. V. sets were made. Thereafter, the revised note for circulation was signed by Mr. Peter, Deputy Secretary,
Rural Development Department. Then, Mr. Narayan, Rural Development Secretary signed on 9-12-1995. Afterwards, the entire file along with
the revised circulation note was set to Finance Secretary Mr. Rajaraman. After perusal, he put his signature in the file.
(i) Thereafter, the file was sent to the Chief Secretary Haribhaskar (A6) who signed the file on 10-12-1995. Then, the entire file was sent to
Minister for Local Administration, who also signed on the same day. On 11-12-1995 the file was sent to the Finance Minister (A3) V. R.
Nedunchezhian and he signed in the file on the same day. Finally, the entire file was sent to the then Chief Minister, who signed the file on the same
date. Thereafter, the draft G.O. was prepared and sent to the Finance Department. Joint Secretary, Finance made some corrections and returned
the draft G.O. After corrections were carried out, the G.O. was issued on 13-12-1995 itself.
(j) After the issuance of G.O., all the T. V. Companies received 25% advance and started the supplies. After getting invoices with proof of
delivery, the payments were made by the D.R.D. to the Companies. A2 Selvaganapathy, Former Minister demanded and obtained Rs.
47,00,000/- as pecuniary advantage through his P.A. Janarthanam (A7) from Uptron India Limited. A4 Pandey, IAS and A5 Sathiyamoorthy,
IAS demanded and obtained Rs. 82.25 lakhs as pecuniary advantage from Uptron India Limited. A7 Janarthanam, P.A. to Selvaganapathy,
Former Minister, demanded and obtained Rs. 28.56,000/- as pecuniary advantage from Keltron India Limited. A2 Selvaganapathy demanded and
obtained pecuniary advantage from Videocon Agent Rs. 1,41,72,000/- through his P.A. Janarthanam. A4 Pandey, I.A.S. demanded and received
pecuniary advantage of Rs. 37,79,200/- from Videocon Agent, A5 Sathiyamoorthy demanded and obtained pecuniary advantage of Rs.
56,68,800/- from Videocon Agent. A7 Janarthanam, P.A. demanded and obtained Rs. 10,00,000/- as pecuniary advantage from the Agent of
Solidaire T.V. Company. A2 Selvaganapathy demanded and obtained Rs. 4,72,00,000/-as pecuniary advantage from B.P.L. Agent. A4 Pandey,
obtained Rs. 30,00,000/- and A4 Sathiyamoorthy obtained Rupees 40,00,000/- from B.P.L. Agents, through A8 Duraisamy, who took Rs.
5,00,000/- for himself. All Bhaskaran demanded and obtained Rs. 30,00,000/- from B.P.L. Agent. A6 Haribhaskar, the then Chief Secretary
obtained Rs. 35,00,000/- from B.P.L. Agent as pecuniary advantage through A9 Muthukumarasamy.
In the light of the above facts, the learned Public Prosecutor would submit by referring Section 10 of the Evidence Act, that for the purpose of
proving the conspiracy, it is not necessary that there should be a direct proof of fact that the conspirators actually met and that since the petitioner
being a Finance Minister signed in the file, even though the said file contained the objection of the Finance Secretary and that even after perusing
the objection, the act of signing would tantamount an illegal omission, an overt act, which was done in pursuance of the conspiracy and as such, the
framing of the charge for conspiracy was legal.
In the impugned order passed by the trial Judge also it is observed, while refer-, ring the materials for conspiracy, as follows:--
As far as A3 is concerned, he had not taken into consideration several objections raised by his own Finance Department. Having known very well
that the Finance Secretary objected to the illegal price hike of Rs. 2,000/- per set, A3, the then Finance Minister simply cleared the proposal for
purchase of T. V. on 11-12-95.... Conspiracy in general is hatched secretely. Only from the attendant circumstances and attitude of the persons
involved in the conspiracy one can, gather the existence of a criminal conspiracy.... The plea as to whether the 3rd accused had knowledge about
the shady transactions or not should be proved or established only during the course of the trial.
Before going into the question as to whether the finding with reference to the charge of conspiracy and the submissions made by the Public
Prosecutor is correct or not, let us now understand the ingredients of criminal conspiracy as defined in Section 120A of the Indian Penal Code.
In this connection, it is relevant to note that Sections 120A and 120B, which are the two sections in Chapter 5-A of IPC came to be
introduced by the Criminal Law Amendment Act of 1913. The Statement of Objects and Reasons stated that a need was felt for the same to make
conspiracy a substantive offence.
Section 120A defines criminal conspiracy as below:
120-A. Definition of criminal cons-piracy:-- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation:-- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
This definition shows that conspiracy consists in either doing an illegal act or a legal act by illegal means.
Section 120B, IPC is the penal section, which provides thus:--
120-B. Punishment of criminal conspiracy.-- (1) Whoever is a party to criminal conspiracy to commit an offence punishable with death,
imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy,
be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment of either description for a term not exceeding six months, or with fine or with both.
It is true that the conspiracy may be a chain, where each party performs even without the knowledge of the other, a role that aids or abets
succeeding parties in accomplishing the criminal objectives of the conspiracy. For example, in a case of smuggling, what is done in the process of
procuring and distributing narcotics or smuggled goods for sale in different parts of the globe? In such a case, these smugglers, middlemen, retailers
are privies to a single conspiracy to smuggle and distribute narcotics. These smugglers know that the middlemen must sell to retailers; and the
retailers know that the middlemen must buy from importers. Thus the conspirators at one end at the chain know that the unlawful business would
not, and could not, stop with their buyers, and those at the other end know that it had not begun with their settlers. The action of each has to be
considered as a spoke in the hub-there being a rim to bind all the spokes together in a single conspiracy. While referring this example, the Apex
Court in State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., would observe as follows (at p. 2453 of Cri LJ):--
To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases,
intent of lawful use being made of the goods or services in question may be inferred from the knowledge itself.... Finally, when the ultimate offence
consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the
conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to
an unlawful use.
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on
evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely
upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire
whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former
does not render them conspirators, but the latter does. It is however, essential that the offence of conspiracy required some kind of physical
manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is
necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review 1974, 297 at 299) expLalns the limited nature of this
proposition:
Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this
proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by
words or conduct. Thus, it has been said that it is necessary to prove that the parties ""actually came together and agreed in terms"" to pursue the
unlawful object; there need never have been an express verbal agreement, it being sufficient that there was ""a tacit understanding between
conspirators as to what should be done.
It is a well-recognised principle of criminal jurisprudence that there cannot be any presumption in favour of the prosecution. There is only one
presumption and that is a sine qua non of the criminal jurisprudence and it is with regard to the innocence of the accused. The onus to prove the
guilt of the accused beyond any shadow of doubt is always on the prosecution. However, in a case under the present Act, the onus would shift on
the accused only in those discerning few cases where the accused accepts gratification other than legal remuneration u/s 20 of the Act. The said
burden would shift on the accused only when it is shown that the accused has accepted or obtained illegal gratification as a motive or reward.
As we all know, conspiracy consists simply in the agreement or confideracy to commit an offence. It is not an ingredient of the offence u/s
120B that all the parties should agree to do a single act. It may, in fact, comprise the commission of a number of acts. It is also not necessary that
each member of the conspiracy must know all the details of conspiracy. Although the common design is the root of the charge, it is not necessary
to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by common means, and so
to carry it into execution. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one
part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were
pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. It is not necessary to prove
that the conspirators actually met; nor is it necessary to show that they communicated in any way. In fact, the Court may infer a conspiracy even
though the conspirator may not have even known each other.
It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main
object of the conspiracy. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others, it will not
affect the culpability of those others, when they are associated with the object of the conspiracy.
In a criminal conspiracy, what is to be proved is agreement and common design. It is true that this proof need not be by direct evidence and
that existence of a conspiracy may even be a matter of inference deduced from criminal acts done in pursuance of a common criminal purpose.
To constitute a single conspiracy there must be a common design and a common intention of all to work in furtherance of the common design.
Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part
to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil
scheme may be promoted by a few, some way drop out and some may join at a later stage. But the conspiracy continues until it is broken up. The
conspiracy may develop in successive stages.
The above principles have been Lald down in the following decisions:--
(1) Kehar Singh and Others Vs. State (Delhi Administration), ;
(2) Ajay Malik v. State (1997) 1 Cur Cri R 61 ;
(3) Yash Pal Mittal Vs. State of Punjab, ;
(4) In Re: Kodur Thimma Reddi and Others, ;
(5) Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., .
Let us now refer Section 10 of the Evidence Act.
Section 10 of the Evidence Act reads as under:
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such person was a party to it.
It is observed by the Apex Court, while dealing with Section 10 of the Evidence Act, in Natwarlal Sakarlal Mody v. State of Bombay (1963)
65 Bom LR 660 as follows:--
This section lays down a rule of evidence and its application is strictly conditioned by the existence of reasonable ground to believe that two or
more persons have conspired together to commit an offence. The opening words of the section laying down a condition and the qualification Lald
down in the body of the section in regard to admissible acts, this is, they should be in reference to their common intention and also should have
been committed, after the time when such intention was first entertained, indicate that the existence of a conspiracy must be established by prima
facie evidence before the acts done or things written by any of the persons can be used as evidence against the others or for the purpose of
proving the existence of the conspiracy.... Shortly stated. before the section can be invoked, as a general rule, some prima facie evidence should
be placed before the Court to enable it to form and opinion that there is reasonable ground to believe that two or more persons have conspired
together; and if that condition is fulfilled the acts and declarations of a conspirator against his fellow conspirators may be admitted as evidence.
We may point out that under the principle contained in Section 10 of the Evidence Act, once a conspiracy to commit an illegal act is proved,
act of one conspirator becomes the act of the other. For application of Section 10 of the Evidence Act, the knowledge of the conspiracy of the
conspirator shall be proved.
For application of Section 10 of the Evidence Act, there must be a reasonable ground to believe conspiracy exists and certain persons are the
conspirators. The prosecution, for application of Section 10 of the Evidence Act, must show that there is a conspiracy in between the accused and
another on the one hand, and on the other hand, a conspiracy in between the said another and others to commit certain actionable wrong or
offence. If there is no evidence on record except the signature of the accused in file, prima facie to prove the factum of conspiracy, and there is no
evidence to prima facie suggest that the signature was made by the accused in reference to the common design of the conspirator after it was first
entertained. Section 10 of the Evidence Act is of no use.
The above principles have been Lald down in Shivnarayan Laxminarayan Joshi and Others Vs. State of Maharashtra, .
Bearing this legal position in mind, let us now go into the materials available on record as against the petitioner in regard to the first charge
framed.
In the instant case, the part played by the petitioner is that he signed in the file on 11-12-1995. The witnesses who speak about the putting of
signature by the petitioner on 11-12-1995 and the relevant file in which the signature is found are being relied upon by the prosecution to connect
the petitioner with the conspiracy charge. It is mentioned in the impugned order that having known very well that the Finance Secretary objected to
the illegal price hike of Rupees 2,000/- per T. V. set, A3, the then Finance Minister simply cleared the proposal for pursuance of T. V. by signing
the file on 11-12-1995. So, the main part attributed to the petitioner is that he did not take into consideration the objection of his own Department.
The main witness who speaks about the objection is Rajaraman, Finance Secretary. Mr. Rajaraman has given statement u/s 161, Cr. P.C. before
the investigating Officer as well as 164 before the Magistrate. He would state in both the statements that when the proposal came from the T. V.
Advisory Committee after getting the views of Rural Development Department, as a Finance Secretary he raised several objections on 13-11-
1995, since the fixing the price as Rs. 14,500/- in a Limited Tender System and payment of 25% advance would amount to violating the rules
under relevant G.Os. and that on 30-11-1995, the then Chief Minister called the Secretary of the Finance Department as well as the other officials
in Rural Development and Minister for Rural Development including the Chief Secretary and that in that meeting also Rajaraman raised a similar
objection. But, the then Chief Minister after hearing the different, views of both the Departments, namely, Finance Department and Rural
Development Department, overruling the objection of the Finance Department and directed to approve the proposal of the Advisory Committee
for purchase of the T. V. sets in Limited Tender System for the said price accepting the views of the Rural Development Department. Only
thereafter, the revised note was prepared by the Deputy Secretary of Rural Development, one Peter, a witness in this case and the same was
signed by him on 9-12-1995. The entire file was sent to the Finance Secretary Rajaraman on the same day. Though the objection was raised by
the Finance Secretary earlier, he put his signature on 9-12-1995 on the revised note and thereafter, the file was sent to the Chief Secretary, who in
turn signed on 10-12-1995. On the same day, A2 Selvaganapathy, then Minister for Local Administration also signed. Afterwards, the file was
sent to the petitioner (A3). On 11-12-1995 he signed and then the file went to the Former Chief Minister, who signed the file immediately on the
same day. Therefore, the perusal of the file and the revised note of the circular and the statements of Rajaraman under Sections 161 and 164, Cr.
P.C. and the statements of other witnesses would clearly show that the objection raised by the Finance Secretary on two occasions were
overruled by the then Chief Minister on 30-11-1995 and only thereafter, the Finance Secretary signed the file on 9-12-1995 and Finance Minister
(A3) signed on 11-12-1995.
In view of the fact situation, it cannot be contended that the petitioner simply cleared the file though it was objected to by the Finance
Secretary. And a matter of fact, as indicated above, the objections and overruling the said objections by then Chief Minister and the revised note
for circulation as per the direction of former Chief Minister and the signature of the Finance Secretary on the revised note are all found available in
the record. More important thing is, the petitioner even while putting the signature in the file, put his signature only below the signature of the
Minister for Local Administration, that too, on 11-12-1995, that is, two days later to the signature put by the Finance Secretary in the file.
The only material on the basis of which the charge of conspiracy was framed, as pointed out in the impugned order and the learned Public
Prosecutor, is the failure on the part of the Finance Minister to take into consideration of the objection raised by his Finance Secretary and simply
cleared the file on 11-12-1995 by signing the same, which tantamounts to an illegal omission, an overt act, which was done in pursuance of the
conspiracy.
The trial Judge, while relying upon the said material, has overlooked the very important factor that the objection raised by the Finance
Secretary earlier was overruled by the former Chief Minister as early as 30-11-1995 and then on the direction of the former Chief Minister the
revised note was prepared by the Secretary of the Rural Development Department and the same was signed by the Rural Development
Department Secretary and the Finance Secretary on 9-12-1995 and that when Finance Secretary signed on 9-12-1995, he did not raise any
objection, since it was a revised note as per the direction of former Chief Minister and thereafter the file was signed by the other officials and other
Ministers and on 11-12-1995 the file was circulated to the finance Minister, who in turn perused the file and signed the same on the same date, as
there was no fresh objection raised by the Finance Secretary. Therefore, the question of illegal omission to take into consideration the objection
raised by the Finance Secretary does not arise. When there was no illegal omission, it cannot be said that the petitioner had knowledge about the
conspiracy alleged to have been hatched by others.
In my opinion, after considering the entire records and the statements of the witnesses, the case of the petitioner (A3) will have to be separated
from that of the rest of the accused regarding the existence of an agreement to do an illegal act. If at all, there was such an agreement, it has to be
inferred from the evidence on record or from the overt act, it can be attributed to the other persons. But, it cannot be said that the petitioner (A3)
knew about the agreement.
As stated earlier, the participation in the acts shall be with the knowledge about the existence of the agreement to commit an illegal act, that is,
conspiracy. The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or the other of the acts
described in the section. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence. It can be
established by direct evidence or by circumstantial evidence. But, Section 10 of the Evidence Act introduces the doctrine of agency and if the
conditions Lald down therein are satisfied , the act done by one is admissible against the co-conspirators. As indicated earlier, Section 10 of the
Evidence Act, as the opening words show, will come into play only when the Court is satisfied that there is reasonable ground to believe that two
or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a
person was a party to the conspiracy before his acts can be used against the co-conspirators.
With this background, we have to see the part played by the petitioner, in order to find out whether he was a party to the conspiracy with the
knowledge regarding the existence of a conspiracy to do an illegal act.
The petitioner though he was the Finance Minister, was never contacted and consulted with reference to the file circulated by the Secretary of
the Rural Development Department regarding the approval of the proposal to accept for the purchase of T.V. sets at the hike price of Rs. 2,000/-
per set. The file was sent to the Finance Secretary alone. The Finance Secretary after recording his objection on 13-11 -1995 did not send the file
to the Finance Minister, whereas he sent it back to the Rural Development Department Secretary. When this objection was brought to the notice
of the former Chief Minister by the other accused, the Private Secretary contacted the Finance Secretary and collected informations regarding the ,
nature of the objection. This has let to the convening of a meeting at the residence of the then Chief Minister. In the meeting, the very same
objection was raised by the Finance Secretary. However, the former Chief Minister overruled the objection and accepted the view of the Local
Administration Minister and approved his views and directed to send the revised file. In this context, it is to be pointed out that the Finance Minis
Ler was never consulted and invited with reference to this proposal, whereas the Finance Secretary alone was invited. Though the Minister for
Local Administration was called to the meeting and he was allowed to give his views for approval of the price hike of Rs. 2,000/-, there is no
reason as to why the Finance Minister was not called.
It is not the case of the prosecution that at any time, the Finance Minister asked his Finance Secretary, who is a subordinate, not to raise those
objections. It is also not the case of the prosecution that he only overruled the objection by accepting the view of the Rural Development
Department and sent the file to the former Chief Minister by signing the same. It is a clear stand taken by the prosecution on the basis of the
materials, that the objection raised by the Finance Secretary was overruled by the former Chief Minister and then revised note was prepared under
the direction and the same was signed by the Finance Secretary without raising any objection thereafter and then only it was signed by the officials
concerned and the Minister for Local Administration and then by the petitioner in the capacity as Finance Minister.
Under these circumstances, it is clear from the materials that the Finance Minister did not come into the picture at all till the revised note was
sent for the signature of the Finance Minister after overruling the objection of the Finance Secretary. Further, it cannot be inferred that the
petitioner has got any knowledge about the alleged conspiracy hatched by the other accused in this case. As stated earlier, only when there is a
prima facie case for the knowledge about the existence of the agreement to do an illegal act is made out, then alone all the acts committed by the
other accused would be admissible as against the petitioner u/s 10 of the Evidence Act.
It is no doubt true that even a strong suspicion would be sufficient to frame the charge for the alleged conspiracy. In fact, the charge of
conspiracy is a substantive, specific, individual charge. Even when there is no material for the other offence, namely, Section 13(1)(d) of P.C. Act,
if there are some materials which would lead to form a presumptive opinion as to the existence of the factual ingredients constituting the offence of
conspiracy, then it would certainly justify the framing of the charge against the petitioner. This however, requires very strong suspicion which must
be founded upon the materials placed before the trial Judge.
But, in view of the foregoing discussion, there is not even a suspicion as against the petitioner, in the light of the chronological happenings as
narrated by the witnesses in this case.
The learned Public Prosecutor would cite the decision in Shree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia 1989 (1) SCC 751 and
point out the following observation:--
If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own
course. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice which stares the Court in the face.
The case referred to in the said judgment relates to the discharge of one Nathumal and Dilip. The trial Court discharged Nathumal in a case of
offence u/s 302, I.P.C. The State filed a revision challenging the validity of discharge of Nathumal. The other accused Dilip filed a revision before
the High Court of Bombay against the order of framing of charge against him. The High Court of Bombay dismissed the revision preferred by the
State, while accepting the revision of Dilip. When these orders were challenged in the Apex Court, the Apex Court held that the High Court of
Bombay went wrong in discharging Dilip, as there are some materials against him. However, the Apex Court would hold, in so far as Nathumal is
concerned, mere failure of Nathumal being the manager of the family to protect Chanda, the deceased and safeguard her rights by performing his
moral obligation, without anything more is not sufficient to frame a charge against him. With this observation, the discharge of Nathumal was
confirmed by the Apex Court.
The above decision, in a way, helps the petitioner. In this case also, there is only a signature put by the petitioner in the file subsequent to the
direction of the Chief Minister to send the revised note. Therefore, that act putting signature, that too, after the direction of the then Chief Minister,
without anything more is not a material at all to frame a charge against him, as it cannot be said to be the outcome of abetment and conspiracy.
I thus, conclude that there is no material against the petitioner so as to entitle the trial Judge to frame charge of conspiracy as stated above. In
these circumstances, the petitioner is entitled to succeed. The revision is allowed. The order dated 14-5-1998 in C.C.No. 15 of 1997 on the file of
XII Additional Special Judge, Chennai, is set aside and the petitioner is discharged. Consequently, Crl. M.P. No. 6212 stands closed.
Before parting with the case, I shall mention that the observations about other accused were made only for the limited purpose of disposal of
this revision. Therefore, the trial Judge shall dispose of the matter by proceeding the case with the other accused uninfluenced by any of the
observations made above referring about others.