IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 27.08.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.10255 of 2010 Balakrishnan @ Parthi Baskar ... Petitioner Vs State rep. by The Director Vigilance and Anti-Corruption Chennai ... Respondent PRAYER: Criminal Original Petition filed under section 482 of Criminal Procedure Code directing the respondent to register a case on the basis of complaint given by the petitioner on 10.06.2009. For Petitioner : Mr.Abudu Kumar Rajarathinam for M/s.K.Senthilnathan For Respondent : Mr.A.Saravanan Govt. Advocate (Crl.side) O R D E R
This petition has been filed under Section 482 Criminal Procedure Code seeking direction to the respondent towards registration of a case on the basis of the complaint given by the petitioner dated 10.06.2009.
2. The complaint of the petitioner reads as follows –
I am residing at the above mentioned address. I got General Power from one Chinniyan and others for S.No.299/1A 1.76 Acre and S.No.230/7A. 3.00 Acres in Koyambedu Thirumangalam village. Some cases are pending between us and Sri Krishna Tiles Pottaries (P) Ltd. for the above mentioned land W.P.No.12613/01 is pending before the Hon’ble High Court at Madras. Moreover Sri Krishna Tiles Pottaries (P) Ltd. sold the above said 4.76 acres of land to Ozone Construction (P) Ltd. We have impleaded them as a party in W.P.No.12613/01 which is pending before the Hon’ble High Court.
In the meanwhile on 20.07.2002 I sent my objections to CMDA not to issue planning permission in the above said 4.76 acres of land, till the disposal of W.P.No.12613/01.
I filed a writ petition in W.P.No.16346/07 against 1. CMDA 2.M/s.Sri Krishna Tiles 3.M/s.Ozone Constructions (P) Ltd. on 02.05.07 the Hon’ble High Court granted interim injunction against CMDA and others for not to give planning permission in the above said 4.76 acres of land. Moreover on 28.06.07 the Hon’ble High Court has ordered in W.P.No.16346/07 that CMDA to consider my objections dated 20.07.2002 within 4 weeks and also give a fresh objections within a week. I had given my objections on 16.07.2007
In this situation the then CMDA member secretary had sent a letter dated 16.06.2008 on 20.05.2008 to the Secretary, Housing and Urban Development Department. In that letter, he had not mentioned about the issue with regard to giving permission to M/s.Ozone Projects (P) Ltd. And concealed my objections and the above mentioned pending cases. The CMDA Member Secretary had willfully omitted to state my objections even after the order of the Hon’ble High Court.
I state that by suppressing the real state of affairs to the Secretary, Housing and Urban Development Department, the then Member Secretary, CMDA attempted to get planning permission in favour of M/s.Ozone Projects Private Limited.
This act by abusing his position as a public servant and obtaining a valuable thing i.e. Planning Permission in favour of M/s.Ozone Projects Private Limited is punishable u/s 13(1) (d) (ii) of the Prevention of Corruption Act, 1988.
I understand apart from Mr.Mohan the then Member Secretary, other officials in collusion with M/s.Ozone Projects Private Limited are involved in the said offence.
Thus I request you to register a case and investigate the matter against Mr.Mohan, Ozone Projects (P) Ltd. and others.
3. The learned counsel for the petitioner would state that in seeking the permission of the Secretary, Housing and Urban Development Department, the Member Secretary, CMDA was duty bound to inform the objections if any to the grant of planning permission. The position that the above said rule has not been complied with itself would be sufficient to register a case under Section 13 (1)(d)(ii) of the Prevention of Corruption Act, 1988.
4. Only upon registration of a case and investigation thereupon it would be possible to ascertain if or not a offence stood committed. The respondent has filed a counter informing that the challenge of the petitioner herein to the grant of patta to a rival party in W.P.No.12613/01 was negated under orders of this Court dated 25.04.2002. In respect of the orders of this Court in W.P.No.16346/07 dated 06.07.2007 wherein a direction was issued to the authorities viz. CMDA to dispose of the representation/objection of the petitioner before considering the application for planning permission pending before it, it is informed that CMDA had acted after obtaining an opinion of its senior law officer as also an Additional Advocate General of this Court and that the action of CMDA was well within legal ambits. The counter also informs of an enquiry officer having perused the documents and enquiry report. A senior officer of the respondent upon perusal had opined that there was no material to register a case, as requested by the petitioner. In response to what is informed in the counter, the learned counsel appearing for the petitioner would place reliance upon the judgment reported in 2007 (1) Supreme Court Cases 110 [M.C.Mehta (Taj Corridor Scam) v. Union of India and others] and particularly Paragraph 29 of such decision wherein the Apex Court had held as follows –
29. In R. Sarala v. T.S. Velu the facts were as follows. A young bride committed suicide within seven months of her marriage. An inquiry under Section 174(3) CrPC was held. The Magistrate conducted the inquiry and submitted a report holding that due to mental restlessness she had committed suicide and no one was responsible. He further opined that her death was not due to dowry demand. However, the police continued with the investigation and submitted a challan against the husband of the deceased and his mother for the offence under Sections 304-B and 498-A IPC. The father of the deceased was not satisfied with the challan as the sister-in-law and the father-in-law were not arraigned as accused. Therefore, the deceaseds father moved the High Court under Section 482 CrPC. A Single Judge of the High Court directed that the papers be placed before the Public Prosecutor. He was asked to give an opinion on the matter and, thereafter, the Court directed that an amended charge-sheet should be filed in the court concerned. This Court held as follows:
In this case the High Court has committed an illegality in directing the final report to be taken back and to file a fresh report incorporating the opinion of the Public Prosecutor. Such an order cannot stand legal scrutiny. The formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. There is no stage during which the investigating officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the superior police officer in the rank as envisaged in Section 36 of the Code. A Public Prosecutor is appointed, as indicated in Section 24 CrPC, for conducting any prosecution, appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. He is the officer of the court. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court.
5. Placing reliance on the above, the learned counsel would state that the question of whether a case existed towards putting up an accused for trial would be a matter for investigation and the decision thereon would rest solely with the investigating officer. Thus, an investigation could not be avoided by placing reliance on the opinions rendered by law officers. Again, the learned counsel would inform that as per G.O.(D) No.1, P&AR (Per-N), dated 28th January 1992, it would be for the Government in consultation with the Vigilance Commissioner to order preliminary enquiry/detailed enquiry/ registration of regular case, as the person whose action is complained of is the Chief Executive Officer of CMDA which is a statutory body and he also happens to be a member of the All India Services.
6. The learned counsel for the petitioner points out that the petitioners objections had been overruled by the CMDA and the same was under challenge under separate writ petitions. The Member Secretary of CMDA had addressed the Secretary to Government Housing and Urban Development Department under communication dated 16.05.2008 seeking approval for planning permission. The objections raised by two others had been informed but the objection of this petitioner stood suppressed.
7. I heard the learned Government Advocate on the above submissions.
8. On the facts as put forth, this Court is of the view that the same call for a fair appreciation on whether the allegations made, raise concerns befitting an investigation. A proper decision in this regard may be arrived at upon conduct of a preliminary enquiry. Hence, this Court requires the respondent to direct the conduct of a preliminary enquiry in respect of the complaint of the petitioner dated 10.06.2009. Should such preliminary enquiry reveal the commission of any offence, it would follow that a case be registered and investigated upon.
9. With the above direction, the petition is disposed of.
27.08.2010
Internet : Yes/No
Index : Yes/No
rgr/avr
To
1. The Director
Vigilance and Anti-Corruption
Chennai
2. The Public Prosecutor,
High Court, Madras.
C.T.SELVAM, J.
rgr/avr
Crl.O.P.No.10255 of 2010
27.08.2010