IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 02.11.2017 PRONOUNCED ON:9.11.2017 CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Original Petition No.18620 of 2017 and Crl.M.P.Nos. 11320 and 11321 of 2017 G.Sampath Kumar, IPS Superintendent of Police, Railways (Under Suspension) No.2, Special Railway Quarters, G.Corner, Golden Rock, Trichy 620 004. .. Petitioner/4th Accused Versus State of Tamil Nadu, rep.by The Deputy Superintendent of Police, CB CID OCU-II, Egmore, Chennai-600 008. .. Respondent/Complainant Criminal Original Petition filed under Section 482 of Cr.P.C., to quash the proceedings in C.C.No..9 of 2015 on the file of the Special Court for Prevention of Corruption Act Cases, Chennai.
For Petitioner .. Mr.R.C.Paul Kanakaraj For Respondent .. Mr.P.Govindarajan, Addl.Public Prosecutor (Crl.side)
O R D E R
This Criminal Original Petition is filed by the 4th Accused seeking to quash the proceedings in C.C.No..9 of 2015 on the file of the Special Court for Prevention of Corruption Act Cases, Chennai.
2. The petitioner herein is an IPS Officer formerly attached to 'Q' Branch of CID Tamil Nadu Police. He is arrayed as 4th Accused in C.C.No.9 of 2015 on the premise that he while discharging his duty as Superintendent of Police 'Q' Branch of CID, Chennai, has abused his official position and indulged in extortion of money through Mahendra Singh Ranka-A-1 and his associates S.Nemichand-A-2 and Hirakumar Jambar-A-3. According to the prosecution, the petitioner herein as Superintendent of Police 'Q' Branch CID, Chennai during the course of his discharging duty, got some information about betting in IPL Season VI. Mahendra Singh Ranka(A-1) who belongs to Jain Community was a friend, informant and financier for A-4. With the said proximity Mahendra Singh Ranka (A-1) had given an impression to some of his community persons who were involved in betting as bookies or punters that he can save them from being prosecuted and detention under Goondas Act if they pay him money. First he has contacted Sri.Gowtham Chand Nimani, who is an accused in the IPL Cricket betting case registered on 16/17.05.2013 at 00.30 hours in CBCID Metro Crime No.1 of 2013, on a complaint given by one K.R.Senthilkumar, Police Inspector, CBCID in Metro Branch and passed on the information that he is wanted in IPL betting case and if he pay Rs.5.00 lakhs, he can save him from the arrest. On the next day i.e. on 18.05.2013 Gowtham Chand Nimani, fearing police action and believing the version of Mahendra Singh Ranka, has paid Rs.5.00 lakhs to Mahendra Singh Ranka through one Manoj.
3. With the similar line of threat Mahendra Singh Ranka has extorted Rs.5.00 lakhs from Mahaveer Chand and Ugamraj Surana @ Pappu. Mahendra Singh Ranka has contacted all these persons through his friend Nemichand who is arrayed as A-2 and Harikumar Jambar who is arrayed as A-3 in this case and collected money through his employee Manoj Sharma @ Manoj. From all these three persons namely Gowtham Chand Nimani, Mahaveer Chand and Ugamraj Surana @ Pappu, Mahendra Singh Ranka has collected Rs.15.00 lakhs in toto and out of which he has shared Rs.7.5 lakhs with Nemichand (A-2) and Hirakumar Jambar(A-3).
4. During the relevant point of time, one Kitty @ Uttam C.Jain of Mumbai has approached Mahendra Singh Ranka through Nemichand(A-2) and Hirakumar Jambar (A-3) to help him from the tracking of IPL betting case investigation, for which Mahendra Singh Ranka (A-1) has demanded Rs.1,20,00,000/-, from him. Kitty @ Uttam C.Jain has directed his friend Nithesh Bothra to contact Mahendra Singh Ranka (A-1) to give money. Accordingly, on 21.5.2013 between 8.pm and 8.30 pm Nithesh Bothra delivered cash of Rs.50.00 lakhs to Mahendra Singh Ranka (A-1) in the parking area of his residence at Purasawakkam and further as directed by Mahendra Singh Ranka (A- 1), Nithesh Bothra and his friend Vinoth Jamath handed over cash of another Rs.50.00 lakhs to one Mlle Daga a friend of Mahendra Singh Ranka (A-1) on 22.05.2013 at 1.30 pm at the shop of Malle Daga named J.K.Jewellers at NSC Bose Road, Chennai in the presence of witness Narendra Kumar Daga and on the same day at around 2.15 pm Nithesh Bothra on the instructions of Mahendra Singh Ranka, had delivered Rs.20.00 lakhs in cash to Ganpath Lal Bapel, brother-in-law of Mahendra Singh Ranka (A-1) in the presence of Subash an employee of Ganpath Lal Bapel at Sonal jewellers, Mint Street, Chennai. All these money were paid by Kitty @ Uttam C.Jain, through Nithesh Bothra, as per the instructions of Mahendra Singh Ranka.
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5. Having collected around Rs.1,35,00,000/- as stated above, from Gowthan Chand Nimani, Mahaveer Chand, Ughamraj Surana @ Pappu and Kitty @ Utham C.Jain, under threat of prosecution in IPL betting case and false promise to save them from prosecution and Preventive detention, Mahendra Singh Ranka gave Rs. 60.00 lakhs to the petitioner herein (A-4) in the following manner:-
(i) On 22.5.2013 at 22.15 hours, as per the instructions of the petitioner (A-4) Mahendra Singh Ranka has paid Rs.10.00 lakhs to Sathappan (L.W.17) an employee of Varadarajan (L.W.16) near Ashoka Hotel, Egmore, Chennai.
(ii) On 23.5.2013 at 13.30 hours, as per the instructions of the petitioner (A-4) Mahendra Singh Ranka has paid Rs.5.00 lakhs to Sasikumar (L.W.19) a representative of Jayachandran (L.W.18) near Ashoka Hotel, Egmore, Chennai.
(iii) On 23.5.2013 between 9.41 and 10.11 hours, as per the instructions of the petitioner (A-4) Mahendra Singh Ranka has paid Rs.15.00 lakhs to K.K.Murugan friend of the petitioner (L.W.20) through his employee Subramanian @ Samy (L.W.21) at Ashoka Hotel, Egmore, Chennai.
(iv) On 23.5.2013, Mahendra Singh Ranka has paid Rs.30.00 lakhs to the petitioner (A-4) directly at his office.
6. While the police of CBCID were investigating IPL cricket betting case in Crime No.1 of 2013, Gowtham Chand Nimani has given a written complaint on 26.6.2013 disclosing extortion of Rs.5.00 lakhs from him by Mahendra Singh Ranka through his employee Manoj. On receipt of this complaint the respondent police has registered a complaint and probed the matter wherein they have found a larger extent of crime committed by Mahendra Singh Ranka and his associates, including the petitioner herein as narrated above.
7. The petitioner herein has filed a discharge petition before the trial court but could not succeed and now he has filed the present petition to quash the final report which culminated in C.C.No.9 of 2015 on the ground that:
1. the prosecution case bristles with mala fide and cannot be proceeded further.
2. After registering the case in Crime No.2 of 2013 on 26.6.2013, he was proceeded departmentally as per Rule 8 of All India Services (Disciplinary and Appeal) Rules, 1869 for 8 charges including the charge of extorting Rs.60.00 lakhs as bribe amount from persons accused in Crime No.1 of 2013 in the IPL Cricket betting case and failed to maintain absolute integrity. Enquiry 7 report submitted by the Enquiry Officer has concluded that the above charge against the petitioner is not proved. Whereas the other charge like participating in media programme without prior sanction of the Government been proved. Since he was found not guilty in the departmental proceedings and being exonerated from the charge of extortion, he cannot be prosecuted for the same charge in the criminal proceedings.
3. Sanction for prosecution has been accorded by the authority without considering the vital documents such as his affidavit before Justice Mukul Mudgal Committee which vitiates the sanction order.
4. The reading of the final report does not disclose any material to charge the petitioner under Prevention of Corruption Act, as public servant he has committed any misconduct. While so, the other charges found in the final report like Section 384, 420 and 120B of IPC against the petitioner will not get attracted.
5. The CBCID Manual mandates that before registering the complaint based on some specific information, the content of the complaint has to be verified. Whereas in this case immediately on receipt of the complaint from Gowtham Chand Nimani on 26.6.2013 at 11.30 hours FIR has been registered for the offence under Section 420, 406 and 506(ii) IPC in Crime No.2 of 2013, totally in violation of CBCID Manual.
6. During the departmental enquiry Gowtham Chand Nimani has stated that he gave the complaint in English, whereas the FIR is in Tamil which clearly show that the actual complaint given by Gowtham Chand Nimani is not forwarded to the court forthwith as contemplated under the Code.
8. The respondent has filed a detailed counter wherein they have stated how the crime came to light in which A-2 has actively involved and made pecuniary benefit by abusing his official position.
9. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondent. Since the petitioner has put forth his case on 6 different grounds it is appropriate for this Court to analyse each ground separately as pleaded by the petitioner.
Whether the final report is Manifestation of Mala fide design against the petitioner:-
10. The learned counsel for the petitioner submitted that the 9 petitioner herein being the Superintendent of Police 'Q' Branch was probing a case connected with fake passport case involving International Gang, in the course of that investigation he got several incriminating materials against persons of high status in the society revealing their involvement in IPL Cricket betting through foreign connection. Immediately he has shared the information with his higher officials and as an officer of the 'Q' Branch, besides he is also competent to probe that case so, he had been collecting information through sources including Mahendra Singh Ranka, who is one of his informants. Only based on his information CBCID were able to register Crime No.1 of 2013 on 16/17.5.2013 at 00.30 hours. When the Supreme Court took cognizance of betting and spot fixing in IPL 2013 and appointed Justice Mukul Mudgal to probe the allegation, the petitioner herein appeared before the committee and has filed a detailed affidavit disclosing involvement of several persons and how he was able to collect this information.
11. The affidavit before Justice Mukul Mudgal Committee filed by the petitioner herein discloses that while he was interrogating one Mohammed Jaffar @ Jaffarullah, regarding fake passports and human trafficking he has revealed the names of middlemen and officials in Delhi. Some of the Middlemen names revealed by Jaffarullah was Harish Bajaj and his associate Easwaran. His further investigation had revealed that the said Harish Bajaj was also involved in match fixing through bookies and some officials were helping him. In his affidavit he has also referred Kitty @ Utham Jain who is one of the bookies who is alleged to have paid Rs.1,20,00,000/- to Mahendra Singh Ranka(A-1) which is part of trial in this case. Apart from the name of some of the higher officials he has also mentioned the names of M.S.Dhoni and Meiyappan of Chennai Super Kings. In his affidavit he has also expressed his apprehension that the Tamil Nadu CBCID which has taken up investigation is not carrying on the investigation in the right direction. Hence, the matter has to be given to a joint investigation team including specialized agencies such as Enforcement Directorate, Directorate of Revenue Intelligence, Income Tax, CBI and National Investigation Agency.
12. Relying upon the above affidavit, the learned counsel submitted that since the petitioner has appeared before Justice Mukul Mudgal Committee and had exposed several persons, to gag him he has been arrayed as A-4 in the complaint given by Gowtham Chand Nimani against Mahendra Singh Ranka.
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13. A perusal of the counter filed by the respondent and the documents relied on by the prosecution as well as the petitioner herein, what this Court could find is that on late night of 16.5.2013, K.R.Senthilkumar, Inspector, Metro Branch, CBCID, Alandur, Chennai, has raided the residence of Harish Bajaj and his associates on the basis of reliable information that Harish Bajaj S/o Amarlal Bajaj and his associates are involved in betting and gambling. Mr.Senthilkumar and his team has raided the premises and collected incriminating materials in the course of search and has submitted a report on 16/17.5.2013 at 00.30 hours. In the said First Information Report (Cr.No.1/2013) 16 persons were arrayed as accused who were all suspected to be bookies. The list of accused includes persons who are accused in this case (Cr.No.2/2013) alleged to have given money to A1-Mahendra Singh Ranka. The very next day i.e. on 17.5.2013, Gowtham Chand Nimani had been contacted by Mahendra Singh Ranka through his agent Manoj. This could have happened only if Mahendra Singh Ranka had a mole in the police department, who had leaked the names of suspects.
14. Admittedly, A-4 is known to Mahendra Singh Ranka and A-4 was holding very sensitive post in the 'Q' Branch. The affidavit filed by the petitioner herein before the Justice Mukul Mudgal Committee dated 19.1.2014 discloses his knowledge about sensitive informations. Long before his appearance before the Committee, based on the complaint given by Gowtham Chand Nimani, case has been registered in Crime No.2 of 2013 against Mahendra Singh Ranka. The defacto complainant has informed the police that Mahendra Singh Ranka had collected 5.00 lakhs from him promising to save him from IPL cricket betting case, but he has not saved him. He came to know that he had been cheated under threat of prosecution. Only the further investigation in this case had brought to light the role of A-4. By that time when the petitioner participated in media talk show and Mukul Mudgal Committee enquiry on 19.1.2014 enough material had been already surfaced against the petitioner. Therefore, this Court finds no reason to draw a conclusion that the petitioner has been implicated as accused with mala fide intention after his participation in Talk Show and his appearance before Justice Mukul Mudgal Committee. This conclusion get strengthened by other facts considered in the later portion of this order.
Impact of Departmental proceedings on the criminal prosecution:-
15. The learned counsel for the petitioner contended that in 13 the departmental proceedings 8 charges were framed against the petitioner and the charge of extortion has been found not proved and he has been exonerated, so there cannot be parallel investigation by prosecution on the same charge.
16. A perusal of the enquiry report reveals that out of 8 charges 6 charges are in connection with the misconduct of addressing media without prior permission and disclosing the stream of investigation in the IPL betting case. The charge 7 and 8 relates to extortion of Rs.60.00 lakhs from the accused persons and non intimation of receiving Rs.15.00 lakhs as loan. While the enquiry officer has concluded that no material evidence is available to find guilty of extortion of money he has concluded that availing loan of Rs.15.00 lakhs without intimating the employer is a misconduct.
17. The said Enquiry report is not final and conclusive of the departmental proceedings. Under the Service Jurisprudence the enquiry report is only a fact finding exercise. It is the disciplinary authority who decide upon the Enquiry report and it does not reach finality, till the other appellate avenues are exhausted. The criminal prosecution cannot be foreclosed, based on the enquiry report which has not reached finality. While statements of witnesses have been recorded under 161 of Cr.P.C. indicates prima facie case against the petitioner herein, the said statements cannot be nullified by contra statements recorded during the disciplinary proceedings. The statements recorded under Section 161 Cr.P.C. has to be proved or contradicted as per the procedure established under law during the trial. The said process cannot be curtailed by recording contra statements in the disciplinary proceedings so as to render criminal investigation and prosecution as a nugatory. It will be improper to accept the proposition placed by the learned counsel for the petitioner that enquiry report will have override effect of criminal prosecution.
Whether Sanction Order suffers any infirmity:
18. The order according sanction to prosecute the accused is dated 28.4.2015. This has been issued by the Government of India, Ministry of Home Affairs in the name of the President of India and the same has been signed by the Under Secretary to the Government of India. He is the person competent to convey the decision of the President of India. The sanction order vividly states the role of this petitioner in the alleging crime and how he has collected Rs.60.00 lakhs through his agents, representatives and directly from Mahendra 15 Singh Ranka who has extorted money from the IPL betting accused or suspected accused. The sanction order discloses that the confession statement of Mahendra Singh Ranka, statements of witnesses, details of cell phone call records and other documentary evidence indicates the involvement of the petitioner in the criminal conspiracy with other accused namely Nemichand (A-2) and Harikumar Jambar (A-3) and Mahendra Singh Ranka (A-1). Since the materials collected during investigation discloses prima facie case against the petitioner, in the interest of justice he has to be prosecuted before the court of competent jurisdiction.
19. It is the contention of the learned counsel for the petitioner that the affidavit filed by the petitioner before the Mukul Mudgal Committee has not been placed before the sanctioning authority. This contention has no force at all. Under Section 19 of the Prevention of Corruption Act, 1988, cognizance of an offence punishable under Section 7, 10, 11, 13 and 15, can be taken by the court only on previous sanction of the person competent to remove the said public servant from his office and before according sanction the authority shall satisfy himself about the prima facie evidence available to prosecute the public servant. This provision is a shield for honest officers from malicious prosecution. When the sanctioning authority has applied his mind and satisfied himself about the prima facie material to prosecute, there need not be any second scrutiny of his satisfaction which is subjective.
20. In this case, material evidence reveals that on the alleged date the petitioner has deposited Rs.15.00 lakhs in his account and drawn a demand draft in favour of one Smt.Thirumagal of Trichy. As per his instructions Rs.30,000/- has been given to various persons to whom the petitioner owed money and their evidence had been recorded and it is part of prosecution material. The sanction order speaks about all those materials which are incriminating against the petitioner and which disclose prima facie evidence for prosecuting him.
Whether any offence is made out under the Prevention of Corruption Act:
21. The submission of the learned counsel for the petitioner in this regard is baseless and requires outright rejection in view of the fact that materials available against him indicates that he has received money from one of the suspect and had deposited in the bank with the help of police personnels. The Constables who have taken the money 17 and deposited the money in the account of the petitioner have given their statements and it form part of the prosecution record.
22. It is contended by the learned counsel for the petitioner that Mahendra Singh Ranka is not only an informant of the petitioner but also a financier by profession Rs.15.00 lakhs was borrowed by the petitioner from one Thirumagal, a Financier at Trichy and during the month of March 2013, he has returned the said loan amount by way of demand draft. No person who takes bribe will transact it through bank and having given plausible explanation for deposit of Rs.15.00 lakhs in his account there is no ground to suspect his integrity.
23. Whereas the counter indicates that L.W.16 Varadarajan a friend of the petitioner has asked Rs.10.00 lakhs as loan for which A-2 has directed the Varadarajan to receive money from Mahendra Singh Ranka. As per his instructions, Varadarajan has sent his employee Sathappan to collect the money from Mahendra Singh Ranka on 22.5.2013 and he collected Rs.10.00 lakhs from Mahendra Singh Ranka at about 22.15 hours near Ashoka Hotel, Egmore. The statements of Varadarajan and Sathappan as well as the call details between Varadarajan, Sathappan, Mahendra Singh Ranka and A-4 are relied upon by the prosecution to prove this allegation. Similar modes of operandi has been followed by the petitioner in respect of Rs.5.00 lakhs paid to Sasikumar-LW-19 who has collected the money from Mahendra Singh Ranka(A-1) for and on behalf of Jayachandran-L.W.18 as per the instructions of the petitioner herein and Rs.15.00 lakhs has been collected by Subramani @ Samy L.W.21 on 23.5.2013, who is the employee of K.K.Murugan-L.W.20. All these transactions had been done as per the instructions of the petitioner herein. The CDR analysis indicates that there were frequent communications between A-1 Mahendra Singh Ranka, A-2 Nemichand, A-3 Harikumar Jambar and A- 4 G.Sampath Kumar, IPS during the period of commission of offence. The phone calls of witnesses (1) L.W.16 Varadharajan, (2) L.W.18 Jayachandran, (3) L.W.20 K.K.Murugan, (4) L.W.21 Subramani, (5) L.W.17 Sathappan, (6) L.W.19 Sasikumar establishes the frequent communication between A-1 Mahendra Singh Ranka, A-4 G.Sampath Kumar, IPS and the listed witnesses during the period of cash transaction. The time of call, the tower location of persons involved corroborates the statements of the above witnesses.
24. While overwhelming evidence indicate the involvement of the petitioner, there is no scope to quash the final report. There are enough materials to indicate misuse of his official position and receipt 19 of illegal gratification other than the legal remuneration, it is futile to contend that no offence under Prevention of Corruption Act is made out against the petitioner and it is also beyond any comprehension to say all these materials collected during the investigation were done with mala fide intention to fix this petitioner.
Whether CBCID Manual Guidelines are violated
25. The contention of the learned counsel for the petitioner that without proper preliminary enquiry the case has been registered against a public servant contrary to the CBCID Manual guidelines is factually not correct. Initially complaint was only against Mahendra Singh Ranka (A.1). The said complaint was received on 26.6.2013 and registered immediately. At that time neither the petitioner nor others were suspected as accused and during the course of investigation, they have stumbled upon materials indicating involvement of public servant, immediately the higher officials have been informed and necessary permission has been obtained from Director General of Police on 15.4.2014 to proceed and thereafter, further investigation has continued. While the fact being so, this court finds no violation of CBCID Manual guidelines as contended by the learned counsel for the petitioner.
Whether the Original complaint is placed before the court:
26. It is contended by the learned counsel for the petitioner that the defacto complainant during the departmental enquiry he has deposed that he gave a complaint in English whereas the complaint and First Information Report relied on by the prosecution is in Tamil and therefore the entire prosecution is vitiated.
27. Whether the said contention is true or not is a matter for trial. Even if it is true whether it will vitiate the trial is yet another issue which cannot be gone into at this point of time and this Court can only reiterate the law that the probative value of First Information Report which sets criminal law into motion is not an encyclopaedia of crime, any omission or error in the First Information Report will never vitiate the criminal prosecution. So on all force the contention raised by the petitioner does not carry any merit to quash the final report.
28. In A.R.Anthulay's case reported in (1988 (2) SCC 602 the Hon'ble Supreme Court has observed:-
“.......... we must remind ourselves that purity of public life is one of the cardinal principles which must be upheld as a matter of public policy. Allegations of legal infractions and criminal 21 infractions must be investigated in accordance with law and procedure established under the Constitution. Even if he has been wronged, if he is allowed to be left in doubt that would cause more serious damage to the appellant. Public confidence in public administration should not be eroded any further. One wrong cannot be remedied by another wrong.”
This Court is bound to point out that the above said observation is not only applicable for the accused but for both, the prosecution as well as the person accused of a crime.
29. Few infractions or omissions in the process of investigation will not vitiate the entire proceedings to quash the same. The process of trial cannot be short circuited citing trivial lapses or omission. What are all agitated by the petitioner, it is always open to the petitioner to put forth the same in the course of the trial. Therefore, this court dismiss the petition and direct the trial court to take up the trial at the earliest and conclude it within 6 months. Consequently, Crl.M.P.Nos. 11320 and 11321 of 2017 are closed.
Index:Yes 9.11.2017 Internet:Yes gr.
G.JAYACHANDRAN, J gr.
Copy to:-
1. The Special Court for Prevention of Corruption Act Cases, Chennai.
2. The Public Prosecutor, High Court, Madras.
PRE-DELIVERY ORDER IN CRL.O.P.NO.18620 of 2017 9.11.2017