Supreme Court of India was dealing with the petition challenging the order dated 08.11.2021 passed by the High Court of Madras in Writ Petition No. 34845 of 2018.
Brief Facts:
The appellant was a cabinet minister in the State of Tamil Nadu from 2014. Mr. R.S. Bharathi filed a complaint with the Directorate of Vigilance and Anti-Corruption. He also filed a criminal petition before the Madras High Court. Respondent No.1 filed a complaint before Director, Directorate of Vigilance and Anti-Corruption and SP, Anti-Corruption Bureau, CBI. As no action was forthcoming by the aforesaid Authorities, respondent No.1 filed a writ petition before the High Court seeking, inter alia, a mandamus directing the Director, Directorate of Vigilance and Anti-Corruption to register an FIR on the basis of the complaint lodged by him and to constitute an SIT for the purpose of investigation. Broadly, the allegation against the appellant is that while he was serving as a Minister, he is alleged to have misused his powers to influence the tender process and ensured that tenders were awarded to his close aides. Accordingly, a status report was produced before the High Court. On perusal of the aforesaid report, the High Court granted time to complete the preliminary enquiry. The Investigating Officer appointed by the High Court completed the preliminary enquiry and submitted a final report to the Director of Vigilance and Anti-Corruption.
Appellant’s Contention:
Learned counsel for the appellant submitted that there is no reason for not making over the documents to the appellant as the State has not claimed that the documents are privileged. It was submitted that FIRs cannot be lodged solely on basis of the CAG report. The appellant should have been given an opportunity to counter the allegations, and the State could not have registered the FIR in a haste, based on certain general observations by the High Court.
Respondent’s Contention:
Learned Counsel for the respondent submitted that there is no provision of law which mandates disclosure of preliminary Enquiry Report before the stage contemplated under Section 207 of the Cr.P.C. However, the accused will be given the relied upon documents at the time of framing charges, wherein he can take appropriate legal recourse. The FIR was filed based on a fresh enquiry conducted in the light of the CAG report and not solely based on the preliminary Enquiry Report filed in the aforesaid writ petition.
SC’s Observations:
The issue before the SC was whether the appellant herein is entitled to the preliminary report in the present facts and circumstances?
SC stated that the High Court has committed a patent error in not taking the matter to its logical conclusion. It is a settled principle that the State cannot blow hot and cold at the same time. When the State Government changed its stand, the High Court neither provided the appellant an opportunity to defend himself, nor sought a reasoned justification from the State for having turned turtle. Although the High Court directed the appellant to file a counter affidavit in the writ proceedings, the State hastened to register the aforesaid FIR on 09.08.2021
SC noted that the contention of the State may be appropriate under normal circumstances wherein the accused is entitled to all the documents relied upon by the prosecution after the Magistrate takes cognizance in terms of Section 207 of CrPC. However, this case is easily distinguishable on its facts. Initiation of the FIR in the present case stems from the writ proceedings before the High Court, wherein the State has opted to re-examine the issue in contradiction of their own affidavit and the preliminary report submitted earlier before the High Court stating that commission of cognizable offence had not been made out. It is in this background we hold that the mandate of Section 207 of CrPC cannot be read as a provision etched in stone to cause serious violation of the rights of the appellant accused as well as to the principles of natural justice.
SC Held:
After evaluating submissions made by both the parties the SC held that “viewed from a different angle, it must be emphasized that prosecution by the State ought to be carried out in a manner consistent with the right to fair trial, as enshrined under Article 21 of the Constitution. When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover. Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428 of 2018 are restored on the file of the High Court of Madras.”
Case Title: S.P. Velumani v. Arappor Iyakkam and Ors.
Bench: CJI. N.V. Ramana and J. Krishna Murari and J. Hima Kohli
Citation: CRIMINAL APPEAL No. 867 of 2022
Decided on: 20th May, 2022
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