SELVI J JAYALALITHAA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) THERE are three accused in this case. As per the charge sheet, the petitioner in Crl.R.C.No.609 of 2011 and Crl.O.P.No.19152 of 2010 has been arrayed as A1 and the petitioners in Crl.R.C.Nos.636 of 2011 and 667 of 2011 have been arrayed as A2 and A3 respectively. A1 has been implicated for the offence under Section 11 and A2 and A3 have been implicated for the offence under Section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act"). 1A. The petitioners preferred discharge petitions under Section 239 of the Code of Criminal Procedure (hereinafter referred to as "the Code") and as against the dismissal of their discharge petitions, they have preferred the above revisions before this Court. As far as A1 is concerned, apart from preferring discharge petition before the trial court, she has also preferred a petition before this Court under Section 482 of the Code in Crl.O.P.No.19152 of 2010 seeking for the relief of quashing the proceedings mainly on the ground of delay in registering the First Information Report and filing the charge sheet on the basis of the principle laid down by the Hon'ble Apex Court in Abdul Rehman Antulay and others V. R.S.Nayak reported in 1992 (1) SCC 225 to the effect that an objection based on denial of right to speedy trial and for relief on that account should first be addressed to the High Court.

(2.) THE factual matrix of the case right from registering the First Information Report culminating into filing of the final report in this case is to be stated hereunder : 2.1. THE Deputy Superintendent of Police, Crime Branch C.I.D., registered the FIR in Crime No.15 of 1996 for the offence under Sections 13(2) r/w 13(1)(e) of the Act. THE said FIR was registered on 24.06.1996 in respect of the transactions alleged to have taken place between 1990 and 1993 on the basis of the D.O. Letter written by the Director General of Income Tax (Investigation), Chennai. THE said letter was incorporated in the above said FIR which reveals that A1 has disclosed in her income tax returns regarding the gifts including DDs and cash given to her on the occasion of her birthday totalling to an amount of Rs.2,09,50,012/- and alleging that the genuineness of the gifts have not been proved and hence, the department has added the said amounts as income in her hands. On receipt of the said letter from the income tax department, without making any further specific allegation, the above said FIR was registered for the offences under Sections 13(2) r/w 13(1)(e) of the Act. 2.2. THEreafter, pursuant to the notification of Government of Tamil Nadu dated 03.08.1996, Government of India had issued notification dated 07.08.1996 entrusting the investigation of the case to the Central Bureau of Investigation in respect of the FIR registered in Crime No.15 of 1996 by the C.B. C.I.D., Chennai, under Sections 13(2) r/w 13(1)(e) of the Act. Accordingly, the FIR was registered by the C.B.I. as R.C.No.50(A)/96 on 02.10.1996 for the above said offences under the Act. It is claimed by the CBI that the Vigilance and Anti-Corruption Department, Tamil Nadu, was already investigating a separate case against A1 for the alleged offences under Sections 13(2) r/w 13(1)(e) of the Act in Crime No.13 of 1996, and as such, they have not investigated for the said offences. On the other hand, they have altered the offences under Sections 13(2) r/w 13(1)(d) of the Act and conducted investigation on the basis of the acceptance of Demand Drafts, including a DD of US $ 3 lakhs said to have been sent by one Dr.K.T.B.Menon, by A1 during the year 1992 while she was the Chief Minister. As the said Menon died, it is stated in the charge sheet that there was no sufficient material to establish a case under Section 13(2) r/w 13(1)(d) of the Act. 2.3. THE charge sheet in this case was filed on 31.07.2006. It is stated in the charge sheet that thereafter the investigation was conducted regarding the alleged receipt of other 89 DDs and cash of Rs.15,00,000/-. It is further stated in the charge sheet that out of 89 DDs purchased in the names of 57 persons, 12 persons were found to be fictitious, 12 persons in whose names DDs were purchased denied the purchase of DDs and 33 persons confirmed the purchase of DDs and presenting to A1 as birthday gifts. Out of 33 persons, 21 persons, who had gifted DDs were MLAs, Ministers or party leaders appointed as Chairman of Government Corporations and other Government bodies and they were concerned in official business transaction or to be transacted with A1 in her capacity as the Chief Minister and thereby A1 accepted the DDs or valuable things from 21 persons who had official connections with her without consideration and thereby committed the offence under Section 11 of the Act. 2.4. THE allegation as per the charge sheet against A2 and A3 is to the effect that both of them were Ministers in the Cabinet of A1 during the relevant period and A2 provided an amount of Rs.22,53,700/- and A3 provided an amount of Rs.25,50,000/- for the purchase of DDs in favour of A1 and they have presented the same to A1 on her birthday in the year 1992 and thereby abetted her to accept the valuable things, i.e., DDs, without consideration and accordingly, A2 and A3 said to have committed an offence punishable under Section 12 of the Act.

(3.) THE learned Senior Counsel would contend that 19 persons, in view of the above said submissions, have not contributed their own funds and they have mobilized the contributions from the party loyalties for presenting the same to their leader and as such they have acted as a conduit between the larger number of party sympathizers and loyalties and their leader viz., the petitioner/A1. It is contended that even assuming that the said 19 persons having business transaction or to be transacted with the Government as it is alleged that they have been selected or appointed to one post or the other in the Government, has no relevance, as they have not paid any money for taking DDs and on the other hand, money for taking the said DDs was mobilised only from the contributions made by the workers, sympathisers and admirers of A1 to present the same to their leader (A1) as birthday gift. It is contended that in respect of other persons excluding 19 persons, as stated above, who have given the DDs are concerned ex-facie Section 11 of the Act, even according to the final report, is not attracted as other persons have not had any dealing with the Government at any time either before or after giving the DD and as such, even as per the final report, Section 11 of the Act is not attracted. THE learned Senior Counsel would contend that in respect of a foreign draft for US $ 3 lakhs, the final report itself concludes that no offence is made out under the Act. He would further contend that A1 disclosed the DDs received by her and accounted for in the income tax proceedings and he placed reliance on the statements recorded under Section 161 of the Code from L.W.117/the Deputy Commissioner of Income Tax, Chennai, in which, it is stated that 29 persons filed affidavits stating that the amounts were collected from the party workers. THErefore, it is submitted that the income tax authorities have held that the receipt of DDs cannot be considered as a gift, but would be treated as income in the hands of the assesse and as such, the conclusion of the income tax authorities themselves will show that there is no contravention of Section 11 of the Act. 5.2. THE second limb of the contention of the learned Senior Counsel for the petitioner (A1) is on the ground of delay. It is contended that the occurrence took place in the year 1992 and the FIR was registered on 24.06.1996 by the C.B. C.I.D., and thereafter, C.B.I. registered the FIR on 02.10.1996 and the final report was filed on 31.07.2006 and as such, 10 years delay in completing the investigation and filing the final report and there is a total delay of 14 years and 5 months from the date of incident and there is absolutely no proper explanation from the prosecution for such an inordinate delay. It is contended that the petitioner cannot be held to be liable for such an inordinate delay in completing the investigation and filing the final report. THE inordinate delay of 10 years in completing the investigation would certainly infringe the right to speedy trial and would amount to violation of Article 21 of the Constitution of India. It is pointed out by the learned Senior Counsel that as per the counter, the final report was finalized on 21.12.2001 itself recommending to prosecute A1 under Section 11 of the Act and A2 and A3 under Section 12 of the Act, but the final report was filed only on 31.07.2006 and there is no explanation for the delay of five years in filing the final report after taking the decision. THE only explanation as per the counter is that time had been spent in consulting Attorney General whether or not sanction is required to prosecute A1 and if so, who should grant sanction. It is submitted that such explanation is wholly unacceptable for the simple reason that A1 was the Chief Minister only upto May 1996 and thereafter, she was only an M.L.A. and even at the time of filing the final report and as such, there is no need for sanction. In support of such contention, learned Senior Counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court in P.V.NarasimhaRao V. State (CBI/SPE) reported in 1998 (4) SCC 626. As per the said decision, in a case of M.L.A., the Speaker of the Legislative Assembly is competent to give sanction and in this case, the sanction was ultimately obtained from the Speaker of the Tamil Nadu Legislative Assembly. THErefore, it is submitted that the inordinate delay in completing the investigation is not at all properly explained by the prosecution and as such, the petitioner/A1's constitutional right recognised under Article 21 of the Constitution stands violated and thereby the proceedings pending against the petitioner is liable to be quashed and consequently, the impugned order passed by the learned trial Judge dismissing the discharge petition is liable to be set aside. 5.3. Mr.B.Kumar, learned Senior Counsel for the petitioner, in respect of the above contentions would place reliance on the following decisions of the : 1. A.R.Antulay & Others V. R.S.Nayak & another reported in AIR 1992 (1) SCC 225 ; 2.R.Ramachandrao Rao V. State of Karnataka reported in 2002 (4) SCC 578 ; 3.Madheswari Singh & another Vs. State of Bihar reported in AIR 1986 Pata 324 ; 4.Biswanathprasad Singh Vs. State of Bihar reported in 1994 (Supp) (3) SCC 97 ; 5.Ramanand Chaudary V. State of Bihar reported in 2002 (1) SCC 149 ; 6. Pankaj Kumar V. State of Maharashtra and others reported in AIR 2008 SC 3077 ; 7. Vakil Prasad Singh Vs. State of Bihar reported in AIR 2009 SC 1822 ; and 8. K.Krishnasingh Vs. Statereported in 2007 (1) MWN (Cr.) 60 ;