Selvi.J.Jayalalithaa & Ors. v. Central Bureau of Investigation

the income tax department, without making any further specificallegation, the above said FIR was registered for the offencesunder Sections 13(2) r/w 13(1)(e) of the Act. 2.2. Thereafter, pursuant to the notification of Government ofTamil Nadu dated 03.08.1996, Government of India had issuednotification dated 07.08.1996 entrusting the investigation of thecase to the Central Bureau of Investigation in respect of the FIRregistered 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 FIRwas registered by the C.B.I. as R.C.No.50(A)/96 on 02.10.1996 forthe above said offences under the Act. It is claimed by the CBIthat the Vigilance and Anti-Corruption Department, Tamil Nadu, wasalready investigating a separate case against A1 for the allegedoffences under Sections 13(2) r/w 13(1)(e) of the Act in CrimeNo.13 of 1996, and as such, they have not investigated for the saidoffences. On the other hand, they have altered the offences underSections 13(2) r/w 13(1)(d) of the Act and conducted investigationon the basis of the acceptance of Demand Drafts, including a DD ofUS $ 3 lakhs said to have been sent by one Dr.K.T.B.Menon, by A1during the year 1992 while she was the Chief Minister. As the saidMenon died, it is stated in the charge sheet that there was nosufficient 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 investigationwas conducted regarding the alleged receipt of other 89 DDs andcash of Rs.15,00,000/-. It is further stated in the charge sheetthat out of 89 DDs purchased in the names of 57 persons, 12 personswere found to be fictitious, 12 persons in whose names DDs werepurchased denied the purchase of DDs and 33 persons confirmed thepurchase of DDs and presenting to A1 as birthday gifts. Out of 33persons, 21 persons, who had gifted DDs were MLAs, Ministers orparty leaders appointed as Chairman of Government Corporations andother Government bodies and they were concerned in officialbusiness transaction or to be transacted with A1 in her capacity asthe Chief Minister and thereby A1 accepted the DDs or valuablethings from 21 persons who had official connections with herwithout consideration and thereby committed the offence underSection 11 of the Act.2.4. The allegation as per the charge sheet against A2 and A3is to the effect that both of them were Ministers in the Cabinet ofA1 during the relevant period and A2 provided an amount ofRs.22,53,700/- and A3 provided an amount of Rs.25,50,000/- for thepurchase of DDs in favour of A1 and they have presented the same toA1 on her birthday in the year 1992 and thereby abetted her toaccept the valuable things, i.e., DDs, without consideration andaccordingly, A2 and A3 said to have committed an offence punishableunder Section 12 of the Act.3. Mr.B.Kumar, learned Senior Counsel appearing for A1, putforward two fold contentions, one on merits and another on https://hcservices.ecourts.gov.in/hcservices/ inordinate and unexplained delay in registering the FIR as well ascompleting the investigation and filing the final report. 4. Regarding the merits, the learned Senior Counsel for A1contended that the final report is confined in respect ofpresentation of DDs only by 21 persons out of whom, A2 and A3 arealso included and as such, from 19 persons statements were recordedby the investigating officer under Section 161 of the Code andwithout exception all the 19 persons stated that A1 is the GeneralSecretary of the political party, namely, All India Anna DravidaMunnetra Kazhagam (for short "AIADMK"), in which, they are themembers and they have collected money from party sympathizers andworkers, who have contributed Rs.5/- or Rs.10/- etc. and aftermobilizing the funds they have purchased the DDs and given to A1 asbirthday gift and as such, the said trivial amounts collected fromparty loyalties would attract the provisions under Section 20(3) ofthe Act and as such, even on the basis of materials available onrecord presumption cannot be raised under Section 20 (1) of the Actand thereby the ingredients of the offence under Section 11 of theAct are not attracted. It is submitted that A1 during the relevantpoint of time had dual capacity, viz., as a Chief Minister and asa General Secretary of the party and the persons or numerouspersons giving valuable thing as birthday gift out of love andaffection to A1 only as a party leader would not attract theingredients of Section 11 of the Act.5.1. The learned Senior Counsel would contend that 19 persons,in view of the above said submissions, have not contributed theirown funds and they have mobilized the contributions from the partyloyalties for presenting the same to their leader and as such theyhave acted as a conduit between the larger number of partysympathizers and loyalties and their leader viz., thepetitioner/A1. It is contended that even assuming that the said 19persons having business transaction or to be transacted with theGovernment as it is alleged that they have been selected orappointed to one post or the other in the Government, has norelevance, as they have not paid any money for taking DDs and onthe other hand, money for taking the said DDs was mobilised onlyfrom the contributions made by the workers, sympathisers andadmirers of A1 to present the same to their leader (A1) as birthdaygift. It is contended that in respect of other persons excluding 19persons, as stated above, who have given the DDs are concerned ex-facie Section 11 of the Act, even according to the final report, isnot attracted as other persons have not had any dealing with theGovernment at any time either before or after giving the DD and assuch, even as per the final report, Section 11 of the Act is notattracted. The learned Senior Counsel would contend that in respectof a foreign draft for US $ 3 lakhs, the final report itselfconcludes that no offence is made out under the Act. He wouldfurther contend that A1 disclosed the DDs received by her andaccounted for in the income tax proceedings and he placed relianceon the statements recorded under Section 161 of the Code fromL.W.117/the Deputy Commissioner of Income Tax, Chennai, in which,it is stated that 29 persons filed affidavits stating that the https://hcservices.ecourts.gov.in/hcservices/ amounts were collected from the party workers. Therefore, it issubmitted that the income tax authorities have held that thereceipt of DDs cannot be considered as a gift, but would be treatedas income in the hands of the assesse and as such, the conclusionof the income tax authorities themselves will show that there is nocontravention of Section 11 of the Act. 5.2. The second limb of the contention of the learned SeniorCounsel for the petitioner (A1) is on the ground of delay. It iscontended that the occurrence took place in the year 1992 and theFIR was registered on 24.06.1996 by the C.B. C.I.D., andthereafter, C.B.I. registered the FIR on 02.10.1996 and the finalreport was filed on 31.07.2006 and as such, 10 years delay incompleting the investigation and filing the final report and thereis a total delay of 14 years and 5 months from the date of incidentand there is absolutely no proper explanation from the prosecutionfor such an inordinate delay. It is contended that the petitionercannot be held to be liable for such an inordinate delay incompleting the investigation and filing the final report. Theinordinate delay of 10 years in completing the investigation wouldcertainly infringe the right to speedy trial and would amount toviolation of Article 21 of the Constitution of India. It ispointed out by the learned Senior Counsel that as per the counter,the final report was finalized on 21.12.2001 itself recommending toprosecute A1 under Section 11 of the Act and A2 and A3 underSection 12 of the Act, but the final report was filed only on31.07.2006 and there is no explanation for the delay of five yearsin filing the final report after taking the decision. The onlyexplanation as per the counter is that time had been spent inconsulting Attorney General whether or not sanction is required toprosecute A1 and if so, who should grant sanction. It is submittedthat such explanation is wholly unacceptable for the simple reasonthat 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 finalreport and as such, there is no need for sanction. In support ofsuch contention, learned Senior Counsel for the petitioner placedreliance 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 thesaid decision, in a case of M.L.A., the Speaker of the LegislativeAssembly is competent to give sanction and in this case, thesanction was ultimately obtained from the Speaker of the Tamil NaduLegislative Assembly. Therefore, it is submitted that theinordinate delay in completing the investigation is not at allproperly explained by the prosecution and as such, thepetitioner/A1's constitutional right recognised under Article 21 ofthe Constitution stands violated and thereby the proceedingspending against the petitioner is liable to be quashed andconsequently, the impugned order passed by the learned trial Judgedismissing the discharge petition is liable to be set aside. 5.3. Mr.B.Kumar, learned Senior Counsel for the petitioner, inrespect of the above contentions would place reliance on thefollowing decisions of the : https://hcservices.ecourts.gov.in/hcservices/ (1)A.R.Antulay & Others V. R.S.Nayak & another reportedin AIR 1992 (1) SCC 225 ;(2)R.Ramachandrao Rao V. State of Karnataka reported in2002 (4) SCC 578 ; (3)Madheswari Singh & another Vs. State of Biharreported in AIR 1986 Pata 324 ;(4)Biswanathprasad Singh Vs. State of Bihar reported in1994 (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 othersreported in AIR 2008 SC 3077 ; (7)Vakil Prasad Singh Vs. State of Bihar reported inAIR 2009 SC 1822 ; and(8)K.Krishnasingh Vs. State reported in 2007 (1) MWN(Cr.) 60 ;6. Mr.S.Ashok Kumar, learned Senior Counsel for thepetitioner/A2 in Crl.R.C.No.636 of 2011 submitted that he isadopting the arguments of Mr.B.Kumar, learned Senior Counsel for A1in respect of delay in completing the investigation and filing thefinal report and thereby infringing the fundamental right of theaccused to speedy trial guaranteed under Article 21 of theConstitution of India. It is further submitted that as per thecharge sheet, the prosecution has come forward with two versions,one version is on the basis of the statements given by the incometax officers particularly L.W.117 to the effect that DDs presentedto A1 cannot be considered as gifts, but would be treated as incomein the hands of the assessee and another version is on the basis ofthe statements recorded under Section 161 of the Code to the effectthat DDs were presented to A1 by the persons who are havingbusiness transaction or to be transacted with the Government andthereby A1 committed the offence under Section 11 of the Act and A2and A3 under Section 12 of the Act. Therefore, it is contended thatthe prosecution itself has not come forward with a clear andconsistent version even as per the final report filed in this case.It is further contended that there is absolutely no materialavailable on record to show that A2 had directly presented the DDsto A1. It is contended that even assuming that A2 had given the DDin person to A1, A2 had already assumed office as a Minster and assuch, he is not going to gain anything and therefore, it cannot bestated that A2 abetted A1 to accept the valuable things i.e., DDswithout consideration in order to attract the ingredients of theprovisions of Section 12 of the Act. The learned Senior Counselwould submit that all these important factors have been overlookedby the learned trial Judge while passing the impugned order ofrejecting the discharge petition and as such, the impugned order isliable to be set aside.7. Mr.V.Gopinath, learned Senior Counsel for A3 also adoptedthe arguments advanced by the learned Senior Counsel for A1 inrespect of delay in completing the investigation and therebyinfringing the fundamental right of speedy trial enshrined underArticle 21 of the Constitution. It is further contended that four https://hcservices.ecourts.gov.in/hcservices/ witnesses have been examined during the course of investigation,viz., L.Ws.24, 38, 39 and 42 implicating A3. It is the prosecutionversion that the amount was given to them by L.W.44, who is thebrother of A3 and there is no allegation of A3 giving money to themfor taking DDs. L.W.44, on the other hand, in his statementrecorded under Section 161 Cr.P.C. that he had no political dealingwith his brother A3 and he had never carried any DD from anyoneeither to A3 or to anyone at any point of time. Therefore, there isabsolutely no material available on record as to how the DDs havebeen taken on behalf of A3 and A3 was the Minister at the time ofthe alleged transaction. It is pointed out that the DD was taken inthe personal name of A1 and not as the Chief Minister and as such,the DDs were not given to A1 as the Chief Minister and only as theleader of the party for giving her as birthday gift and as such,the ingredients of the offence under Section 12 of the Act are notattracted against A3.8. Per contra, Mr.N.Chandrasekaran, learned Special PublicProsecutor for CBI, would contend that a prima facie case is madeout to implicate the petitioners, namely, A1 for the offence underSection 11 and A2 and A3 for the offence under Section 12 of theAct. It is contended that there are enough materials available onrecord through the statements recorded from the witnesses underSection 161 of the Code to attract the ingredients of the offenceunder Sections 11 and 12 of the Act and the probative value of suchstatements recorded under Section 161 of the Code cannot be goneinto at the stage of discharge petition or quashing theproceedings. It is contended that detailed counters are also filedin this matter highlighting the materials available on recordimplicating each one of the petitioners. He would also placereliance on the provision under Section 20 of the Act and contendedthat in view of the materials available on record attracting theprovisions under Sections 11 and 12 of the Act, the presumptioncontemplated under Section 20 of the Act is necessarily to be drawnagainst the petitioners/A1 to A3. The learned Special PublicProsecutor for CBI would submit that though there is a delay on thepart of the respondent in conducting investigation, no malafideintention could be attributed on the part of the investigatingagency and such delay is caused only due to administrative andprocedural reasons. It is contended that merely because there is adelay, there is no prerogative right conferred on the petitionersto seek the relief of quashing and discharge.9. The learned Special Public Prosecutor placed reliance on adecision of this Court in V.Thiagarajan V. State reported in 2008(2) MLJ (Cri.) 731 and contended that in the said decision thisCourt considered the principles laid down by the Hon'ble Apex Courtin a catena of decisions regarding the exercise of power underSection 482 of the Code as well as the scope and power of thisCourt regarding the discharge of an accused.10. This Court has given its careful and anxious considerationto the rival contentions put forward by either side and thoroughlyscrutinised the entire materials available on record and perused https://hcservices.ecourts.gov.in/hcservices/ the petitions filed by the petitioners and the counters filed bythe respondent and also perused the impugned orders passed by thelearned trial Judge.11. As already pointed out by this Court, A1 to A3 haveinvoked the provision under Section 239 of the Code by filingdischarge petitions and A1 during the pendency of such dischargepetition also preferred a petition before this Court invoking theprovision under Section 482 of the Code for quashing theproceedings. Therefore, it is relevant to refer the above said twoprovisions of the Code in order to highlight the scope and ambit ofthe powers conferred under the said provisions.12. Section 239 of the Code reads as hereunder :"239. When accused shall be discharged – If, uponconsidering the police report and the documents sent withit under section 173 and making such examination, if any,of the accused as the Magistrate thinks necessary andafter giving the prosecution and the accused anopportunity of being heard, the Magistrate considers thecharge against the accused to be groundless, he shalldischarge the accused, and record his reasons for sodoing."Section 428 of the Code reads as hereunder :"482. Saving of inherent powers of High Court –Nothing in this Code shall be deemed to limit or affectthe inherent powers of the High Court to make such ordersas may be necessary to give effect to any order underthis Code, or to prevent abuse of the process of anyCourt or otherwise to secure the ends of justice."13. A reading of the above said provision makes it crystalclear that the obligation to discharge the accused under Section239 of the Code arises when the learned trial Magistrate considersthe charge against the accused to be groundless on the basis of theexamination of the materials produced along with the final reportunder Section 173 of the Code. 14. It is worthwhile to refer the principles laid down by theHon'ble Apex Court in a landmark case in R.S.Nayak V. A.R.Antulay(AIR 1986 SC 2045) has held as follows :"The Cr.P.C. contemplates discharge of the accused bythe Court of Session under S.227 in a case triable by it ;cases instituted upon a police report are covered by S.239and cases instituted otherwise than on police report aredealt with in S.245. The three sections contain somewhatdifferent provisions in regard to discharge of theaccused. Under S.227, the trial Judge is required todischarge the accused if he 'considers that there is notsufficient ground for proceeding against the accused'.Obligation to discharge the accused under S.239 ariseswhen "the Magistrate considers the charge against the https://hcservices.ecourts.gov.in/hcservices/ accused to be groundless." The power to discharge isexercisable under S.245 (1) when "the Magistrateconsiders, for reasons to be recorded, that no caseagainst the accused has been made out which, ifunrebutted, would warrant his conviction ....." It is afact that Ss.227 and 239 provide for discharge beingordered before the recording of evidence and theconsideration as to whether charge has to be framed or notis required to be made on the basis of the record of thecase, including documents and oral hearing of the accusedand the prosecution or the police report, the documentssent along with it and examination of the accused andafter affording an opportunity to the two parties to beheard. The stage for discharge under S.245, on the otherhand, is reached only after the evidence referred to inS.244 has been taken. Notwithstanding this difference inthe position there is no scope for doubt that the stage atwhich the Magistrate is required to consider the questionof framing of charge under S.245 (1) is a preliminary oneand the test of "prima facie" case has to be applied. Inspite of the difference in the language of the threesections the legal position is that if the trial court issatisfied that a prima facie case is made out, charge hasto be framed."(emphasis supplied by this Court)15. The Hon'ble Apex Court in yet another decision in State ofMaharashtra V. Som Nath Thapa (AIR 1996 SC 1744) held that,"If there is ground for presuming that the accused hascommitted the offence, a Court can justifiably say that aprima facie case against him exists, and so, frame chargeagainst him for committing that offence. In Black's LawDictionary word 'presume' has been defined to mean "tobelieve or accept upon probable evidence". LegalDictionary has quoted in this context a certain judgmentaccording to which "A presumption is a probable consequencedrawn from facts (either certain, or proved by directtestimony) as to the truth of a fact alleged." Theaforesaid shows that if on the basis of materials onrecord, a Court could come to the conclusion thatcommission of the offence is a probable consequence, a casefor framing of charge exists. To put it differently, ifthe Court were to think that the accused might havecommitted the offence it can frame the charge, though forconviction the conclusion is required to be that theaccused has committed the offence. It is apparent that atthe stage of framing of charge, probative value of thematerials on record cannot be gone into ; the materialsbrought on record by the prosecution has to be accepted astrue at that stage."16. In yet another decision in State of Delhi V. Gyan Devi(2000 (8) SCC 239) the Hon'ble Apex Court has held as follows : https://hcservices.ecourts.gov.in/hcservices/ "It is well settled that at the stage of framing ofcharge the trial court is not to examine and assess indetail the materials placed on record by the prosecutionnor is it for the court to consider the sufficiency ofthe materials to establish the offence alleged againstthe accused persons. At this stage of charge the Court isto examine the materials only with a view to be satisfiedthat a prima facie case of commission of offence allegedhas been made out against the accused persons. It isalso well settled that when the petition is filed by theaccused under Section 482 Cr.P.C. seeking for thequashing of charge framed against them the court shouldnot interfere with the order unless there are strongreasons to hold that in the interest of justice and toavoid abuse of the process of the court the charge framedagainst the accused needs to be quashed."(emphasis supplied by this Court)17. The Hon'ble Apex Court in a landmark case in Pepsi FoodsLtd., Vs. Special Judicial Magistrate reported in 1998 SCC (Cri.)1400 considered the scope and power of the High Court under Article226 and Article 227 of the Constitution of India as well as thepower of the High Court under Section 482 of the Code. The Hon'bleApex Court in that decision has held as hereunder :“22. It is settled that the High Court can exerciseits power of judicial review in criminal matters. ….Under Article 227 the power of superintendence by theHigh Court is not only of administrative nature but isalso of judicial nature. This article confers vast powerson the High Court to prevent the abuse of the process oflaw by the inferior courts and to see that the stream ofadministration of justice remains clean and pure. Thepower conferred on the High Court under Articles 226 and227 of the Constitution and under Section 482 of the Codehave no limits but more the power more due care andcaution is to be exercised while invoking these powers.When the exercise of powers could be under Article 227 orSection 482 of the Code it may not always be necessary toinvoke the provisions of Article 226. ….26. Nomenclature under which petition is filed isnot quite relevant and that does not debar the court fromexercising its jurisdiction which otherwise it possessesunless there is special procedure prescribed whichprocedure is mandatory. If in a case like the present onethe court finds that the appellants could not invoke itsjurisdiction under Article 226, the court can certainlytreat the petition as one under Article 227 or Section482 of the Code. It may not however, be lost sight ofthat provisions exist in the code of revision and appealbut some time for immediate relief Section 482 of theCode or Article 227 may have to be resorted to forcorrecting some grave errors that might be committed bythe subordinate courts. The present petition though filed https://hcservices.ecourts.gov.in/hcservices/ in the High Court as one under Articles 226 and 227 couldwell be treated under Article 227 of the Constitution.….29. No doubt the Magistrate can discharge theaccused at any stage of trial if he considers the chargeto be groundless, but that does not mean that the accusedcannot approach the High Court under Section 482 of theCode or Article 227 of the Constitution to have theproceeding quashed against him when the complaintdoes not make out any case against him and still he mustundergo the agony of a criminal trial. ….”The principles laid down by the Hon'ble Apex Court in the decisionscited supra would make it crystal clear that while invoking theprovision under Section 239 of the Code, the Court has to considerand examine only materials available on record as produced by theprosecution while filing the final report in order to find outwhether there is a prima facie case made out against the accused,whereas, the inherent power under Section 482 of the Code can beexercised by the High Court to give effect to any order under theCode or to prevent the abuse of process of any Court or otherwiseto secure the ends of justice. Therefore, the inherent powerconferred under Section 482 of the Code is a wider one than that ofthe power under Section 239 of the Code.18. At the outset, it is to be stated that A1 apart fromraising grounds in respect of merits of the case also raised theground of inordinate and unexplained delay in registering the FIR,completing the investigation and filing the final report in thedischarge petition. However, considering the principle laid down bythe Hon'ble Apex Court in A.R.Anulay V. R.S.Nayak reported in(1992) 1 SCC 225, wherein, the Hon'ble Apex Court has held that "anobjection based on denial of right to speedy trial and for reliefon that account, should first be addressed to the High Court", A1thought it fit to prefer the above said Criminal Original Petitionbefore this Court for quashing the proceedings on the ground ofinordinate and unexplained delay in completing the investigationduring the pendency of the discharge petition before the trialcourt. 19. It is also relevant to refer the scope and ambit of thepowers of the High Court under Section 482 of the Code as held bythe Hon'ble Apex Court in Pankaj Kumar V. State of Maharashtrareported in AIR 2008 SC 3077. In the said decision, the Hon'bleApex Court, referring and relying the earlier decisions in JanataDal Vs. H.S. Chowdhary & Ors. (1992 4 SCC 305), KurukshetraUniversity & Anr. Vs. State of Haryana & Anr. [(1977) 4 SCC 451]and State of Haryana & Ors. Vs. Bhajan Lal & Ors. (1992 Supp (1)SCC 335), held as hereunder :"10. The scope and ambit of powers of the High Courtunder Section 482, CrPC or Article 227 of the Constitutionhas been enunciated and reiterated by this Court in aseries of decisions and several circumstances under whichthe High Court can exercise jurisdiction in quashingproceedings have been enumerated. Therefore, we consider https://hcservices.ecourts.gov.in/hcservices/ it unnecessary to burden the judgment by making referenceto all the decisions on the point. It would suffice tostate that though the powers possessed by the High Courtsunder the said provisions are very wide but these shouldbe exercised in appropriate cases, ex debito justitiae todo real and substantial justice for the administration ofwhich alone the courts exist. The inherent powers do notconfer an arbitrary jurisdiction on the High Court to actaccording to whim or caprice. The powers have to beexercised sparingly, with circumspection and in the rarestof rare cases, where the court is convinced, on the basisof material on record, that allowing the proceedings tocontinue would be an abuse of the process of the court orthat the ends of justice require that the proceedingsought to be quashed. 11. Although in Bhajan Lal's case (supra), the courtby way of illustration, formulated as many as sevencategories of cases, wherein the extra-ordinary powerunder the aforestated provisions could be exercised by theHigh Court to prevent abuse of process of the court yet itwas clarified that it was not possible to lay down preciseand inflexible guidelines or any rigid formula or to givean exhaustive list of the circumstances in which suchpower could be exercised.12. The purport of the expression "rarest of rarecases" has been explained very recently in Som Mittal(supra). Speaking for the three-Judge Bench, Hon'ble theChief Justice has said thus:"When the words 'rarest of rare cases' are usedafter the words 'sparingly and with circumspection'while describing the scope of Section 482, those wordsmerely emphasize and reiterate what is intended to beconveyed by the words 'sparingly and withcircumspection'. They mean that the power underSection 482 to quash proceedings should not be usedmechanically or routinely, but with care and caution,only when a clear case for quashing is made out andfailure to interfere would lead to a miscarriage ofjustice. The expression "rarest of rare cases" is notused in the sense in which it is used with referenceto punishment for offences under Section 302 IPC, butto emphasize that the power under Section 482 Cr.P.C.to quash the FIR or criminal proceedings should beused sparingly and with circumspection.""20. Bearing in mind the above legal position in respect ofscope and ambit of powers of this Court under Section 239 of theCode and under Section 482 of the Code, let me now consider the twofold submissions made by Mr.B.Kumar, learned Senior Counsel for thepetitioner/A1 regarding the merits of the case and the delay incompleting the investigation. https://hcservices.ecourts.gov.in/hcservices/

21. Let me now consider the first submission regarding themerits of the case. At the outset, it is to be stated that the entire allegationsagainst A1 are founded on the basis of her voluntary disclosure inrespect of gifts including DDs and cash received by her on theoccasion of her birthday in her income tax returns and also thereceipt of a foreign DD to the tune of US $ 3 lakhs on her birthdayin the year 1992. In the final report, it is stated that nooffence is made out on the basis of the receipt of US $ 3 lakhs byway of DD. Though it is alleged that she had accepted 89 DDs worthabout Rs.2,00,00,012/- from 57 persons, ultimately in the chargesheet, it was confined to only 21 persons, who have gifted the DDsto A1 including A2 and A3 and other AIADMK party leaders, who havebeen subsequently appointed as Chairman of Government Corporationsand other government bodies and as such, it is alleged that theywere concerned in official business transaction or to be transactedwith A1 in her capacity of the Chief Minister and as such, A1 saidto have committed the offence under Section 11 of the Act. 22. The sheet-anchor of the contentions of the learned SeniorCounsel for A1 is that the statements recorded from 19 personsdisclosed that they have taken DDs out of the funds mobilised fromthe contributions of Rs.5/- or Rs.10/- etc. by the party workers,sympathisers, admirers and well-wishers of A1 to present the DDs toher on her birthday and as such, it cannot be stated that the said19 persons have given their own money for taking DDs, and on theother hand, they have acted only as a conduit between the largenumber of persons who had paid the money and the petitioner (A1)and therefore, those 19 persons having alleged business transactionor to be transacted with the Government has no relevance as theydid not pay any money on their own attracting the ingredients ofSection 11 of the Act.23. It is also contended by the learned Senior Counsel for thepetitioner (A1) that in view of the above said factor to the effectthat the trivial amounts have been contributed by the party workersand others for taking DDs and as such, the provision under Section20(3) of the Act is attracted and accordingly, the presumptioncannot be raised against the petitioner (A1). It is also contendedthat the petitioner/A1 was not only the Chief Minister of TamilNadu, but she had the dual capacity as she was also the GeneralSecretary of the AIADMK party and as such, it cannot be stated thatthe said DDs were received by her only in her capacity as the ChiefMinister, viz., as a public servant, on the other hand, she hadreceived the said DDs from her party workers, sympathisers only asthe leader of the political party on the occasion of her birthday.Though learned Senior Counsel raised substantial contentions, asstated above, this Court is of the considered view that the abovesaid contentions cannot be considered at the stage of framing thecharge and the same would amount to appreciation of evidence andsuch exercise cannot be undertaken while dealing with the petitionfor discharge or the petition for quashing. It is well-settledthat at the stage of framing the charge the Court has to find outwhether a prima facie case is made out against the accused only on https://hcservices.ecourts.gov.in/hcservices/ the basis of the materials available on record. The court cannotconduct a roving enquiry or to consider the probative value of thematerials available on record. 24. The learned Senior Counsel for A1 placed reliance on thepresumption clause under Section 20(3) of the Act. It is relevant to refer the provisions under Sections 11, 12and 20 of the Act as hereunder :"S.11. Public servant obtaining valuable thing,without consideration from person concerned in proceedingor business transacted by such public servant -Whoever, being a public servant, accepts or obtains oragrees to accept or attempts to obtain for himself, of orany other person, any valuable thing withoutconsideration, or for a consideration which he knows tobe inadequate, from any person whom he knows to havebeen, or to be, or to be likely to be concerned in anyproceeding or business transacted or about to betransacted by such public servant, or having anyconnection with the official functions of himself or ofany public servant to whom he is subordinate, or from anyperson whom he knows to be interested in or related tothe person so concerned, shall be punishable withimprisonment for a term which shall be not less than sixmonths but which may extend to five years and shall alsobe liable to fine.S.12. Punishment for abetment of offences defined inSection 7 or 11 -Whoever abets any offence punishableunder Section 7 or Section 11 whether or not that offenceis committed in consequence of that abetment, shall bepunishable with imprisonment for a term which shall benot less than six months but which may extend to fiveyears and shall also be liable to fine.S.20. Presumption where public servant acceptsgratification other than legal remuneration -(1) Where, in any trial of an offence punishableunder Section 7 or Section 11 or Clause (a) or Clause (b)of sub-section (1) of Section 13 it is proved that anaccused person has accepted or obtained or has agreed toaccept or attempted to obtain from himself, or for anyother person, any gratification (other than legalremuneration) or any valuable thing from any person, itshall be presumed, unless the contrary is proved, that heaccepted or obtained or agreed to accept or attempted toobtain that gratification or that valuable thing, as thecase may be, as a motive or reward such as is mentionedin Section 7 or, as the case may, without considerationor for a consideration which he knows to be inadequate.(2) Where in any trial of an offence punishableunder Section 12 or under Clause (b) of Section 14, it is https://hcservices.ecourts.gov.in/hcservices/ proved that any gratification (other than legalremuneration) or any valuable thing has been given oroffered to be given or attempted to be given by anaccused person, it shall be presumed, unless the contraryis proved, that he gave or offered to give or attemptedto give that gratification or the valuable thing, as thecase may be, as a motive or reward such as is mentionedin Section 7, or, as the case may be, withoutconsideration or for a consideration which he knows to beinadequate.(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw thepresumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, inits opinion, so trivial that no inference of corruptionmay fairly be drawn."25. A reading of the provision under Section 11 of the Actwould make it clear that the said provision is corresponding to theprovision under Section 165 IPC which was repealed subsequently bythe Act (49 of 1988 Section 31). 26. The Hon'ble Apex Court in R.S.Nayak V. A.R.Antulayreported in 1986 (2) SCC 716 dealt with the essential ingredientsof the provisions under Section 165 IPC and the said provision isverbatim the same as that of the provision under Section 11 of theAct and the Hon'ble Act has held that the following are theessential ingredients to attract Section 165 IPC:"(i) the accused was a public servant ; (ii) he accepted or obtained or agreed to accept orobtain a valuable thing without consideration or for aninadequate consideration knowing it to be inadequate ;(iii) the person giving the thing must be a personconcerned or interested in or related to the personconcerned in any proceeding or business transacted orabout to be transacted by the government servant or havingany connection with the official himself or of any publicservant to whom he is subordinate; and(iv) the accused must have knowledge that the persongiving the thing is so concerned or interested orrelated."The Hon'ble Apex Court in that decision further held thatindisputably the field under Section 165 is wider. Therefore, it isneedless to state that the provision under Section 11 of the Act isalso wider.27. It is pertinent to note that as per Sub-Section (1) & (2)of Section 20 of the Act, there is a presumption clause in respectof offence under Sections 11 and 12 of the Act. As far as the caseon hand is concerned, as it is already pointed out that A1 hadadmitted the receipt of demand drafts and termed them as gifts asdisclosed in her income tax returns and as such, the presumptioncontemplated under Section 20(1) of the Act is to be raised against https://hcservices.ecourts.gov.in/hcservices/ A1 and as far as A2 and A3 are concerned, the presumptioncontemplated under sub-section (2) to Section 20 has to be raised.It is well-settled that such presumption is a rebuttable one and itis for the accused to rebut the presumption only during the courseof trial and not at the stage of framing of charge. Merely because19 persons have stated in their statements recorded under Section161 of the Code to the effect that the DDs were taken from thecontribution of Rs.5/-, Rs.10/- etc. (trivial amounts) from theparty workers, sympathisers and admirers, the petitioners/A1, A2and A3 cannot invoke the provision under Section 20 (3) of the Act.It is relevant to note that as per Section 20 (3) of the Act, theCourt may decline to draw the presumption under sub-section (1) or(2), if the amount is so trivial. However, the provision underSection 20 (3) of the Act could be considered only at the time oftrial by testing and analyzing the evidence of the above said 19persons by way of appreciation of the evidence and such exercisecannot be undertaken at the pre-trial stage, namely, at the time offraming the charge.28. As far as A2 and A3 are concerned, it is to be stated thatthey have been implicated for the offence under Section 12 of theAct on the allegation of abetting A1 to commit the offence underSection 11 of the Act. It is pertinent to note that it is allegedagainst A2 and A3 in the charge sheet that A2 has provided anamount of Rs.22,53,700/- and A3 has provided Rs.25,50,000/- for thepurchase of DDs in favour of A1 and presented the same to her onher birthday in the year 1992 and during the said relevant period,they were Ministers in the Cabinet of A1. It is pointed out by thelearned Special Public Prosecutor as per the counter that L.Ws.8,63, 64 and 67 have implicated A2. In respect of A3, it is pointedout by the learned Special Public Prosecutor that the prosecutionplaced reliance on the statements of L.Ws.24, 38, 39 and 42 andamong them L.W.42 has stated in his 161 statement that the amountfor purchase of DDs was provided by A3 and the DD was purchased asinstructed by him and as such, it cannot be stated that there is nomaterial available on record to link A3 with the allegedtransactions. It is already pointed out that he was also a Ministerin the Cabinet of A1. Added to the above said factors, it is alsopointed out earlier that even in respect of the offence underSection 12 of the Act, there is a presumption clause contemplatedas per Section 20 (2) of the Act and as A1 accepted and admittedthe receipt of DDs, the prosecution is entitled to place relianceon the presumption clause under Section 20(2) of the Act in respectof A2 and A3 and as such, it is for A2 and A3 to rebut thepresumption only at the time of trial. In view of the aforesaidreasons, this Court is of the considered view that the contentionsraised in respect of the merits of the case are untenable.29. In respect of the second limb of the contention of thelearned Senior Counsel for A1 seeking the relief of quashing theproceedings on the ground of inordinate delay in completing theinvestigation and filing the final report, it is to be borne inmind of this Court about the factual scenario of the sequence ofevents right from registering the FIR to filing the final report https://hcservices.ecourts.gov.in/hcservices/ coupled with broad features of the nature of allegation levelledagainst A1.30. The FIR in this case was originally registered on24.06.1996 for the offences under Sections 13(2) r/w 13(1)(e) ofthe Act by the Deputy Superintendent of Police, C.B.C.I.D., on thebasis a D.O. Letter sent by the Director General of Income Tax(Investigation), Chennai, furnishing details of gifts received byA1 on the occasion of her birthday as disclosed in her income taxreturns. Thereafter, the case was entrusted to CBI and the CBIregistered the FIR in R.C.No.50(A)/1996 for the offences underSections 13(2) r/w 13(1)(e) of the Act and the said FIR was alsoregistered on the basis of the communication of the DirectorGeneral of Income Tax (Investigation), Chennai, on the basis of thedisclosure of the gifts received by A1 on her birthdays in herincome tax returns. Again after commencement of investigation, itis stated in the charge sheet that the allegations attracted theprovisions under Sections 13(2) r/w 13(1)(d) of the Act andaccordingly, the said provision was substituted in the FirstInformation Report registered in Crime R.C.No.50(A)/1996 andproceeded with the investigation and ultimately, as already pointedout, the final report was filed only for the offence under Section11 of the Act as against A1 and for the offence under Section 12 ofthe Act as against A2 and A3. It is to be reiterated that the wholeallegation is founded on the basis of disclosure of the giftsreceived by A1 in her income tax returns and the above said FIRswere not registered on the basis of any complaint preferred by anyaggrieved persons or from any other source of information.Therefore, it is crystal clear that A1 has not suppressed anymaterial factor and there is absolutely no clandestine dealingsalleged against her. Further it is also relevant to state that theFIR was registered on the allegation of receipt of 89 DDs from 57persons including a foreign DD for US $ 3 lakhs, but ultimately atthe time of filing the final report, the allegation was confined toonly 21 persons including A2 and A3. Therefore, the value of theDDs comes to Rs.1,48,00,000/- and in respect of the foreign DD foran amount of US $ 3 lakhs, it is stated in the final report that nooffence is made out.31. It is pertinent to note that the alleged transactions tookplace between 1990 and 1993 as per the FIR registered in CrimeNo.15 of 1996 dated 24.06.1996 by the C.B.C.I.D.. The second FIRwas registered on 02.10.1996 in R.C.No.50(A)/1996 by the CBI.Therefore, there is a delay of four years in registering the FIR inthis case. The investigation was completed and the final reportwas filed only on 31.07.2006 and as such, there is a delay of 10years in filing the final report from the date of registration ofthe FIR and nearly about 14 years in filing the final report fromthe date of alleged transactions as it is stated in the finalreport that the alleged transactions took place in the year 1992. 32. It is seen that in the final report there is absolutely noexplanation whatsoever for such an inordinate delay of more than adecade for completing the investigation and filing the final https://hcservices.ecourts.gov.in/hcservices/ report. Equally there is no explanation for the delay of fouryears in registering the FIR in the above said two FIRs. Only forthe first time, in the counter filed before the trial court in thedischarge petition and before this Court in the Criminal OriginalPetition for quashing the proceedings in Crl.O.P.No.19152 of 2010,the respondent has come forward with the explanation to the effectthat the investigation was to be conducted in USA, UK and UAE andas such, the time to complete the same took a very long time. I amunable to accept such a strange and curious explanation for thesimple reason that even as per the allegations contained in the FIRand the charge sheet only one DD is in relation to a foreigncountry for an amount of US $ 3 lakhs and in respect of the same,it is stated that no offence is made out and as such, there is noquestion of conducting the investigation in various countries. Itis also pertinent to note that in respect of the said foreign DD ofUS $ 3 lakhs, it is stated that in the month of May 2000 itself thedocuments have been collected and further it is mentioned in theannexure attached to the charge sheet that on 21.12.2001 itself,recommendation was made for prosecuting A1 for the offence underSection 11 and A2 and A3 for the offence under Section 12 of theAct and as such, there is no explanation for further delay of sixyears in filing the final report. 33. Yet another explanation given by the respondent is thatafter completion of investigation in the year 2000 itself, it tooktime for getting legal opinion from the Attorney General of Indiain respect of obtaining sanction for prosecuting A1 for the offenceunder the Act. It is to be stated that A1 was the Chief Ministeronly upto May 1996 and thereafter, she was only an M.L.A. 34. The Hon'ble Apex Court in Habibulla Khan Vs. State ofOrissa reported in (1995) 2 SCC 437 held that sanction forprosecution under Section 19 of the Act against persons alleged tohave committed the offences during their tenure as Ministers afterthey ceased to be the Ministers not required, though they continuedto be MLAs and even assuming that MLAs are public servants. Thesaid decision was rendered by the Hon'ble Apex Court as early as inthe year 1995. 35. Again, in P.V.Narasimha Rao V. State (CBI/SPE) reported in1998 (4) SCC 626 the Hon'ble Apex Court has held that in respect ofa Member of Parliament, who is a public servant, the sanction shallbe obtained from the Chairman of the Rajya Sabha or the Speaker ofthe Lok Sabha, as the case may be and as such, in respect of anM.L.A., the Speaker of the Legislative Assembly is the competentauthority to accord sanction and accordingly, in the instant case,it is stated in the charge sheet that the sanction was obtainedfrom the Speaker of the Tamil Nadu Assembly as sanction wasaccorded as per the decision of the Hon'ble Apex Court inP.V.Narasimha Rao's case.36. It is pertinent to note that the Hon'ble Apex Courtrendered the said decision in P.V.Narasimha Rao's case as early asin the year 1998 and even in the said case, the CBI is the https://hcservices.ecourts.gov.in/hcservices/ respondent and as such, on the face of it, the explanation offeredby the respondent for the inordinate delay is unacceptable. On theother hand, it is relevant to note that there is absolutely noallegation made against the petitioners in respect of causinghindrance and thereby stalling or hampering the investigationeither in the counter filed in the Criminal Original Petition or inthe counter filed in Criminal Revision Petitions and thepetitioners are not at all responsible for such inordinate delay incompleting the investigation and filing the final report. Thesword of Damocles due to prolonged investigation over a period of10 years in this case is perilously hanging over the heads of thepetitioners. It is imperative at the very threshold to state thatin all criminal prosecutions right to a speedy trial is now aninalienable fundamental right of the citizen under Article 21 ofthe Constitution of India. Such right cannot be allowed to bewhittled down on the ground of flimsy and untenable excuse for theinordinate delay in completion of the investigation.37. At this juncture, it relevant to refer the followingdecisions:A Full Bench of the Patna High Court in Madheswari Singh &another V. State of Bihar reported in AIR 1986 PATNA 324 quashedthe criminal proceedings on the ground of inordinate andunexplained delay.38. The said Full Bench decision of the Patna High Court gotthe seal of approval from the Hon'ble Apex Court in A.R.Antulay V.R.S.Nayak reported in 1992 (1) SCC 324. In the said decision, theHon'ble Apex Court incorporated the said Full Bench decision ashereunder :"74. At this stage, we think it appropriate to dealwith the facts of and the principles enunciated inMadheshwardhari Singh V. State of Bihar AIR 1986 PAT 324which decision is the subject matter of Criminal AppealNo.126 of 1987 preferred by the State of Bihar. In fact,the learned counsel for the petitioners-accused stronglyrelied upon it. Five questions were referred to the FullBench, namely :"(1) Whether the fundamental right to a speedypublic trial enshrined in Article 21 of theConstitution by precedential mandate is confined toonly capital offences or is attracted to all offencesgenerically ?(2) Whether the aforesaid right to a speedy trialis applicable only to the proceedings in Court strictosenso or includes within its sweep the precedingpolice investigation as well ?(3) Is a speedy trial equally mandated by boththe letter and spirit of the Code of CriminalProcedure, 1973?(4) Whether the ratio in State of Bihar V.Ramdaras Ahir (1985 Crl.L.J. 584) (Pat HC) and inState V. Maksudan Singh (AIR 1986 Pat 38) are https://hcservices.ecourts.gov.in/hcservices/ applicable equally to all offences and irrespective ofthe fact whether the proceedings are a trial or anappeal against acquittal ?(5) Whether an outer time-limit to concretise theright to a speedy public trial is envisioned byprinciple of precedent ?"....."76. Sandhawalia, CJ., speaking for the FullBench, held, on a review of several decisions of thisCourt and of the United States of America, that rightto speedy trial is inherent in and flows from Article21. The learned Chief Justice stated the followingfour principles as flowing from Article 21, viz.,(1) That, now by precedential mandate the basichuman right to a speedy public trial in all criminalprosecutions has been expressly written as if with penand ink in the constitutional right relating to lifeand liberty guaranteed under Article 21 of ourConstitution. Further, that this right is identical incontent with the express constitutional guaranteeinserted by the Sixth Amendment in the American-Constitution.(2) That the American precedents on the SixthAmendment of that Constitution would be equallyattracted and applicable as persuasive on this facetof Article 21 of our Constitution as well.(3) That once the constitutional guarantee on aspeedy trial and the right to a fair, just andreasonable procedure under Article 21 has beenviolated, then the accused is entitled to anunconditional release and the charges levelled againsthim would fall to the ground.(4) That a callous and inordinate prolonged delayof ten years or more, which, in no way arises from theaccussed's default (or is otherwise not occasioned dueto any extraordinary and exceptional reasons), in thecontext of reversal of a clean acquittal on a capitalcharge, would be per se prejudicial to the accused andwould plainly violate the constitutional guarantee ofa speedy trial under Article 21.77. The other findings of the Full Bench are tothe following effect :1. the right to speedy trial applies not only tomajor crimes but to minor offences as well;2. it takes in its fold not only the proceedingsin court but also the preceding police investigation;3. the provisions of the CrPC and the BiharPolice Manual not only embody the spirit of a speedypublic trial but, in fact, epitomise it by expressprovisions mandating speedy and expeditious disposalwithin specified time limits. There is no conflictbetween Article 21 and the provisions of the Code. https://hcservices.ecourts.gov.in/hcservices/

78. The more important principle enunciated inthis decision relates to the question whether a time-limit should be prescribed to effectuate the saidright. After an elaborate examination of severaldecisions of this Court including Sheela Barse, and ofthe American Supreme Court, the learned Judge came tothe following conclusion :".... an outer limit to concretise the right tospeedy public trial is envisioned both by principleand precedent. It is further held that a callous andinordinately prolonged delay of seven years or more(which does not arise from the default of the accusedor is otherwise not occasioned by any extraordinary orexceptional reason) in investigation and originaltrial for offences other than capital ones plainlyviolate the constitutional guarantee of a speedypublic trial under Article 21.79. He added further :"A sharp note of caution must be sounded. Theaforesaid finding must not be misunderstood ormisconstrued to mean that a delay of less than sevenyears would not in any case amount to prejudice.Indeed, what is sought to be laid down is the extremeouter limit where after grave prejudice to the accusedmust be presumed and the infraction of theconstitutional right would be plainly established.Really, I am somewhat hesitant in spelling out eventhe aforesaid outer time limit which, perhaps, errs onthe side of strictitude. But since we are followingbinding precedent, the same has to be unreservedlyaccepted. Nor is it sought to be laid down that in alesser period than seven years an accused person wouldnot be able to establish circumstances pointing to thepatent prejudice which may entitle him to invoke theguarantee of speedy public trial under Article 21."80. The learned Chief Justice then examined thefacts of the case before him in the light of theprinciples evolved and held that it is a clear casewhere the petitioner's right to speedy trial has beenviolated. He found that the petitioner was not guiltyof obstructive tactics and that the delay was entirelyof the prosecution's doing. Accordingly, theinvestigation and the trial against the petitioner wasquashed. Another Full Bench presided over by the samelearned Chief Justice held in State v. Maksudan Singhthat in case of serious offences like murder, delay of10 years or more occasioned entirely by the default ofprosecution must be deemed to be per se prejudicial tothe accused." https://hcservices.ecourts.gov.in/hcservices/

39. The Hon'ble Apex Court in A.R.Antulay's case further heldthat right to speedy trial flowing from Article 21 encompasses allthe stages, namely, the stage of investigation, inquiry, trial,appeal, revision and re-trial.40.0. It is relevant to refer two of the decisions of theHon'ble Apex Court in which the proceedings have been quashed inrespect of the offence under the Prevention of Corruption Act apartfrom other offences.40.1. In Pankaj Kumar's case (cited supra), the Hon'ble ApexCourt held as hereunder: "14. Time and again this Court has emphasized theneed for speedy investigations and trial as both aremandated by the letter and spirit of the provisions of theCrPC. (In particular, Sections 197, 173, 309, 437 (6) and468 etc.) and the constitutional protection enshrined inArticle 21 of the Constitution. Inspired by the broadsweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union ofIndia & Anr. (AIR 1978 SC 597), in Hussainara Khatoon &Ors. Vs. Home Secretary, State of Bihar (1980 (1) SCC 81),this Court had said that Article 21 confers a fundamentalright on every person not to be deprived of his life orliberty except according to procedure established by law;that such procedure is not some semblance of a procedurebut the procedure should be 'reasonable, fair and just';and therefrom flows, without doubt, the right to speedytrial. It was also observed that no procedure which doesnot ensure a reasonably quick trial can be regarded as'reasonable, fair or just' and it would fall foul ofArticle 21. The Court clarified that speedy trial meansreasonably expeditious trial which is an integral andessential part of the fundamental right to life andliberty enshrined in Article 21.15. The exposition of Article 21 in HussainaraKhatoon's case (supra) was exhaustively considered afreshby the Constitution Bench in Abdul Rehman Antulay & Ors.Vs. R.S. Nayak & Anr. [(1992) 1 SCC 225]. Referring to anumber of decisions of this Court and the Americanprecedents on the Sixth Amendment of their Constitution,making the right to a speedy and public trial aconstitutional guarantee, the Court formulated as many aseleven propositions with a note of caution that these werenot exhaustive and were meant only to serve as guidelines.For the sake of brevity, we do not propose to reproduceall the said propositions and it would suffice to note thegist thereof. These are: (i) fair, just and reasonableprocedure implicit in Article 21 of the Constitutioncreates a right in the accused to be tried speedily; (ii)right to speedy trial flowing from Article 21 encompassesall the stages, namely the stage of investigation, https://hcservices.ecourts.gov.in/hcservices/ inquiry, trial, appeal, revision and retrial; (iii) inevery case where the speedy trial is alleged to have beeninfringed, the first question to be put and answered is -who is responsible for the delay?; (iv) while determiningwhether undue delay has occurred (resulting in violationof right to speedy trial) one must have regard to all theattendant circumstances, including nature of offence,number of accused and witnesses, the work-load of thecourt concerned, prevailing local conditions and so on--what is called, the systemic delays; (v) each and everydelay does not necessarily prejudice the accused. Somedelays may indeed work to his advantage. However,inordinately long delay may be taken as presumptive proofof prejudice. In this context, the fact of incarcerationof accused will also be a relevant fact. The prosecutionshould not be allowed to become a persecution. But whendoes the prosecution become persecution, again dependsupon the facts of a given case; (vi) ultimately, the courthas to balance and weigh several relevant factors -'balancing test' or 'balancing process' - and determine ineach case whether the right to speedy trial has beendenied; (vii) Ordinarily speaking, where the court comesto the conclusion that right to speedy trial of an accusedhas been infringed the charges or the conviction, as thecase may be, shall be quashed. But this is not the onlycourse open and having regard to the nature of offence andother circumstances when the court feels that quashing ofproceedings cannot be in the interest of justice, it isopen to the court to make appropriate orders, includingfixing the period for completion of trial; (viii) it isneither advisable nor feasible to prescribe any outertime-limit for conclusion of all criminal proceedings. Inevery case of complaint of denial of right to speedytrial, it is primarily for the prosecution to justify andexplain the delay. At the same time, it is the duty of thecourt to weigh all the circumstances of a given casebefore pronouncing upon the complaint; (ix) an objectionbased on denial of right to speedy trial and for relief onthat account, should first be addressed to the High Court.Even if the High Court entertains such a plea, ordinarilyit should not stay the proceedings, except in a case ofgrave and exceptional nature. Such proceedings in HighCourt must, however, be disposed of on a priority basis.16. Notwithstanding elaborate enunciation of Article21 of the Constitution in Abdul Rehman Antulay (supra),and rejection of the fervent plea of proponents of rightto speedy trial for laying down time-limits as bar beyondwhich a criminal trial shall not proceed pronouncements ofthis Court in "Common Cause" A Registered Society Vs.Union of India (UOI) & Ors. [(1996) 4 SCC 33], "CommonCause", A Registered Society Vs. Union of India & Ors.[(1996) 6 SCC 775], Raj Deo Sharma Vs. State of Bihar[(1998) 7 SCC 507] and Raj Deo Sharma II Vs. State ofBihar [[1999) 7 SCC 604] gave rise to some confusion on https://hcservices.ecourts.gov.in/hcservices/ the question whether an outer time limit for conclusion ofcriminal proceedings could be prescribed whereafter thetrial court would be obliged to terminate the proceedingsand necessarily acquit or discharge the accused. Theconfusion on the issue was set at rest by a seven-JudgeBench of this court in P. Ramachandra Rao Vs. State ofKarnataka [(2002) 4 SCC 578]. Speaking for the majority,R.C. Lahoti, J. (as his Lordship then was) while affirmingthat the dictum in A.R. Antulay's case (supra) is correctand still holds the field and the propositions emergingfrom Article 21 of the Constitution and expounding theright to speedy trial laid down as guidelines in the saidcase adequately take care of right to speedy trial, it washeld that guidelines laid down in the A.R. Antulay's case(supra) are not exhaustive but only illustrative. They arenot intended to operate as hard and fast rules or to beapplied like a strait-jacket formula. Their applicabilitywould depend on the fact-situation of each case as it isdifficult to foresee all situations and no generalizationcan be made. It has also been held that it is neitheradvisable, nor feasible, nor judicially permissible todraw or prescribe an outer limit for conclusion of allcriminal proceedings. Nonetheless, the criminal courtsshould exercise their available powers such as those underSections 309, 311 and 258 of CrPC to effectuate the rightto speedy trial. In appropriate cases, jurisdiction of theHigh Court under Section 482 CrPC and Articles 226 and 227of the Constitution can be invoked seeking appropriaterelief or suitable directions. The outer limits or powerof limitation expounded in the aforenoted judgments wereheld to be not in consonance with the legislative intent. 17. It is, therefore, well settled that the right tospeedy trial in all criminal persecutions is aninalienable right under Article 21 of the Constitution.This right is applicable not only to the actualproceedings in court but also includes within its sweepthe preceding police investigations as well. The right tospeedy trial extends equally to all criminal persecutionsand is not confined to any particular category of cases.In every case, where the right to speedy trial is allegedto have been infringed, the court has to perform thebalancing act upon taking into consideration all theattendant circumstances, enumerated above, and determinein each case whether the right to speedy trial has beendenied in a given case. Where the court comes to theconclusion that the right to speedy trial of an accusedhas been infringed, the charges or the conviction, as thecase may be, may be quashed unless the court feels thathaving regard to the nature of offence and other relevantcircumstances, quashing of proceedings may not be in theinterest of justice. In such a situation, it is open tothe court to make an appropriate order as it may deem justand equitable including fixation of time for conclusion oftrial." https://hcservices.ecourts.gov.in/hcservices/

40.2. In yet another decision Vakil Prasad Singh V. State ofBihar reported in AIR 2009 SC 1822 the Hon'ble Apex Court has takena similar view as in the earlier decision cited supra (PankajKumar's case). 41. If the factual scenario in the instant case coupled withthe sequence of events, as stated above, resulting in inordinateand unexplained delay of 10 years in completing the investigationis tested on the touch stone of the principles enumerated by theHon'ble Apex Court in the decisions cited supra, this Court has nohesitation to hold that in the case on hand, the petitioner'sconstitutional right to speedy trial enshrined under Article 21 ofthe Constitution of India stands flagrantly violated. 42. At the risk of repetition, it is to be reiterated thatthere is not only delay of four years in registering the FIR as thealleged transactions are said to have taken place in the year 1992and the first FIR was registered only on 24.06.1996 there is afurther inordinate delay of 10 years in completing theinvestigation and filing the final report and there is absolutelyno acceptable and reasonable explanation forthcoming from theprosecution and on the other hand, the petitioners are in no wayresponsible for such an inordinate delay, as pointed out earlier.The prosecution has miserably failed to show any exceptionalcircumstances which would possibly be taken into consideration forcondoning the callous and inordinate delay of more than a decade incompleting the investigation. It is needless to state that thedelay would not only amount to denial of justice, but also wouldresult in serious miscarriage of justice apart from causing graveprejudice to the petitioners. 43. The Hon'ble Apex Court in the decision cited supra inPankaj Kumar's case (cited supra) has held that inordinately longdelay would be taken as presumptive proof of prejudice. It isalso held by the Hon'ble Apex Court in the decisions cited suprathat the right to speedy trial is not only applicable to the actualproceedings in Court, but also includes within its sweep thepreceding investigation as well and the speedy trial extendsequally to all criminal prosecution and not to any particularcategory of cases. This Court is of the considered view that theprolonged investigation by the respondent could have very wellcaused extreme mental stress and strain to the petitioners. Thesword of Damocles is hanging perilously over their heads for over10 years.44. In the decisions cited supra, the Hon'ble Apex Courthighlighted the principle laid down in a landmark case in State ofHaryana & Ors. V. Bhajan Lal & Ors. (1992 Supp. (1) SCC 335)formulating as many as seven category of cases by way ofillustration, wherein the extraordinary power under Section 482 ofthe Code could be exercised by the High Court to prevent abuse ofprocess of Court or otherwise to secure the ends of justice. https://hcservices.ecourts.gov.in/hcservices/

45. The Hon'ble Apex Court in the decisions held that thepower possessed by the High Court under Section 482 of the Code isundoubtedly very wide, but it has to be exercised in appropriatecases to do real and substantial justice for the administration ofwhich alone the Courts exist.46. In Vakil Prasad Singh (cited supra), the Hon'ble ApexCourt has ultimately held as hereunder : "16. ..... The prosecution has failed to show anyexceptional circumstance which could possibly be takeninto consideration for condoning a callous and inordinatedelay of more than two decades in investigations and thetrial. The said delay cannot, in any way, be said to bearising from any default on the part of the appellant.Thus, on facts in hand, in our opinion, the stated delayclearly violates the constitutional guarantee of a speedyinvestigation and trial under Article 21 of theConstitution. We feel that under these circumstances,further continuance of criminal proceedings, pendingagainst the appellant in court of Special Judge,Muzaffarpur, is unwarranted and despite the fact thatallegations against him are quite serious, they deserveto be quashed."47. The above said principle laid down by the Hon'ble ApexCourt is squarely applicable to the facts of the instant case inview of the reasons assigned earlier. There is absolutely nojustification for subjecting the petitioner (A1) to undergo theordeal of trial after the inordinate and unexplained delay andfurther continuance of the criminal proceedings pending against thepetitioner (A1) would certainly amount to abuse of process ofCourt. In the case on hand, as the petitioner (A1) rightly invokedthe inherent power of this Court under Section 482 of the Code byfiling the above said Crl.O.P.No.19152 of 2010 on the ground ofinordinate and unexplained delay in conducting the investigationand filing the final report and more particularly, on the basis ofthe principle laid down by the Hon'ble Apex Court in A.R.Antulaycase (cited supra) that such an objection based on denial of rightto speedy right should first be addressed before the High Court,this Court has no hesitation to invoke and exercise theextraordinary inherent power under Section 482 of the Code to quashthe entire proceedings as the fundamental right to speedy trial ofA1 enshrined under Article 21 of the Constitution of India has beenflagrantly violated in view of the reasons assigned earlier. 48. Consequently, the impugned order passed by the learnedtrial Judge dismissing the petition for discharge filed by thepetitioner (A1) is liable to be set aside and accordingly, the saidorder of the learned XIII Additional Special Court for CBI Cases,City Civil Court, Chennai, made in Crl.M.P.No.760 of 2009 inC.C.No.26 of 2006 dated 12.04.2011 is hereby set aside and theproceedings initiated against the petitioner (A1) in in C.C.No.26of 2006 stands quashed. https://hcservices.ecourts.gov.in/hcservices/

49. As far as A2 and A3 are concerned, though they have raisedthe ground of inordinate and unexplained delay of 10 years infiling the final report in their discharge petitions, they have notpreferred any petition under Section 482 of the Code seeking therelief of quashing the proceedings. However, as this Court quashedthe entire proceedings in respect of A1, the proceedings initiatedagainst A2 and A3, who have been implicated on the allegation ofabetment under Section 12 of the Act would necessarily fall intothe ground and as such, the impugned orders of dismissal of theirdischarge petitions are also liable to be set aside. Accordingly,the said orders of the learned XIII Additional Special Court forCBI Cases, City Civil Court, Chennai, made in Crl.M.P.Nos.723 and887 of 2009 in C.C.No.26 of 2006 dated 12.04.2011 are also herebyset aside.These petitions are allowed accordingly. Consequently,connected miscellaneous petition in M.P.No.1 of 2010 inCrl.O.P.No.19152 of 2010 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarggTo1. The XIII Additional Special Court for CBI Cases, City Civil Court, Chennai.2. The VIII Additional Sessions Judge/ Principal Judge for CBI Cases, Chennai.3. The Registrar, City Civil Court, Chennai.4. The Superintendent of Police, ACB, Central Bureau of Investigation, Chennai.5. The Special Public Prosecutor for CBI Cases, Madras High Court, Chennai.1 CC to Mr.P.R.Balasubramanian, Advocate, SR.61572 1 CC to Mr.K.Selvarengan, Advocate, SR.61495 1 CC to Mr.N.Chandrasekaran, Special Public Prosecutorfor C.B.I.Cases, S.R.No.61460 Common orderin Crl.O.P.No.19152 of 2010and Crl.R.C.Nos.609, 636 and 667 of 2011 GR(CO)SRA(28/10/2011)