Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. Aggrieved by the aforesaid order, the appellant has filed the present appeal by way of Special Leave. It may not be out of place to note that the appellant has also filed Crl.M.P.No.56512/2022 before this Court seeking quashing of the aforesaid FIR. S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS. [N. V. RAMANA, CJI]
15. The learned Senior Counsel appearing for the appellant contended orally and through written submissions as under: – (i) That there is no reason for not making over the documents to the appellant as the State has not claimed that the documents are privileged. (ii) The reliance on two reports by the Comptroller and Auditor General of India (hereinafter “CAG”) by the State of Tamil Nadu is misplaced as there is no criminality disclosed in the aforesaid report. (iii) That FIRs cannot be lodged solely on basis of the CAG report. (iv) The appellant should have been given an opportunity to counter the allegations, and the State could not have registered the FIR in a haste, based on certain general observations by the High Court. (v) This case is a clear case of regime revenge wherein change in political dispensation has resulted in the State recanting its initial position to abuse the process against the appellant herein.
16. On the contrary, the learned Senior Counsel appearing on behalf of the State of Tamil Nadu has contended that: – (i) There is no provision of law which mandates disclosure of preliminary Enquiry Report before the stage contemplated under Section 207 of the Cr.P.C. However, the accused will be given the relied upon documents at the time of framing charges, wherein he can take appropriate legal recourse. (ii) The FIR was filed based on a fresh enquiry conducted in the light of the CAG report and not solely based on the preliminary Enquiry Report filed in the aforesaid writ petition.
17. At the outset, it may be noted that an application was filed before us seeking quashing of the subsequent FIR. However, the learned Senior Counsel appearing on behalf of the appellant has not pressed the same before us. He has limited his submissions only to the aspect concerning non-disclosure of the preliminary enquiry report of Ms. Ponni, IPS, Superintendent of Police, Directorate of Vigilance and Anti- Corruption and the ancillary documents. Accordingly, we intend to deal with this aspect alone.
18. Having heard learned counsel for the parties and on perusing the documents available on record, we may note that the facts of this case are clear. Initially, a private complaint was filed by respondent No.1 and thereafter, a writ petition was filed by him seeking investigation into the allegations made in the complaint. When the matter was taken up by the High Court, it directed an enquiry by a responsible officer, Ms. Ponni, Superintendent of Police, Director of Vigilance and Anti-Corruption. Accordingly, the Court appointed officer submitted her preliminary enquiry report to the Director of Vigilance and Anti-Corruption, who in turn submitted a final report before the High Court in a sealed cover. In the meanwhile, the Government took a decision to close the case based on the aforesaid report submitted by the Court appointed officer. Rather than deciding this issue, the High Court adjourned the matter by a month.
19. However, it appears that due to various reasons, the matter could not be listed until 19.07.21. In the meanwhile, the State Government had changed. In a turn of events, the State Government went back on their earlier stand to close the criminal case. Instead, the State Government submitted before the High Court that they intended to conduct further investigation in the aforesaid matter.
20. In our considered opinion, the High Court has committed a patent error in not taking the matter to its logical conclusion. Without considering the material before it, and by merely relying on the submissions made by the learned counsel for the State, the High Court has made sweeping observations which are prejudicial to the appellant. It was the High Court which had ordered that a preliminary enquiry be conducted and a report be submitted by the special investigating officer. However, once the enquiry was completed, the High Court failed to even peruse the said report. Rather, the High Court left the decision completely in the hands of the State Government. Such an approach, as adopted by the High Court in the present matter, cannot be countenanced in law.
21. It is a settled principle that the State cannot blow hot and cold at the same time. When the State Government changed its stand, the S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS. [N. V. RAMANA, CJI] High Court neither provided the appellant an opportunity to defend himself, nor sought a reasoned justification from the State for having turned turtle. Although the High Court directed the appellant to file a counter affidavit in the writ proceedings, the State hastened to register the aforesaid FIR on 09.08.2021.
22. It is noteworthy that the initial affidavit filed by the State was categorical that they did not intend to pursue action against the appellant herein. However, the subsequent change of stand by the State clearly contradicts the expectation brought about by the initial affidavit. The principles of natural justice demanded that the appellant be afforded an opportunity to defend his case based on the material that had exonerated him initially, which was originally accepted by the State.
23. Therefore, the only issue which requires this Court’s consideration is whether the appellant herein is entitled to the preliminary report in the present facts and circumstances.
24. Learned counsel for the State has contended that the accused would be entitled to access the report only after the Magistrate takes cognizance in terms of Section 207 of the CrPC. He has relied on In Re: Criminal Trials Guidelines Regarding Inadequacies and Deficiencies v. State of Andhra Pradesh & Others, (2021) 10 SCC 598 to contend that the accused is entitled to seek documents only in terms of Section 207 of the CrPC and any production of the documents beyond the ambit of aforesaid section, is untenable in law.
25. On the other hand, the learned counsel for the appellant has distinguished the present case on the fact that the subsequent FIR was filed due to direct judicial interference.
26. We may note that the contention of the State may be appropriate under normal circumstances wherein the accused is entitled to all the documents relied upon by the prosecution after the Magistrate takes cognizance in terms of Section 207 of CrPC. However, this case is easily distinguishable on its facts. Initiation of the FIR in the present case stems from the writ proceedings before the High Court, wherein the State has opted to re-examine the issue in contradiction of their own affidavit and the preliminary report submitted earlier before the High Court stating that commission of cognizable offence had not been made out. It is in this background we hold that the mandate of Section 207 of CrPC cannot be read as a provision etched in stone to cause serious violation of the rights of the appellant-accused as well as to the principles of natural justice.
27. Viewed from a different angle, it must be emphasized that prosecution by the State ought to be carried out in a manner consistent with the right to fair trial, as enshrined under Article 21 of the Constitution.
28. When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.
29. In view of the aforesaid discussion, and taking into consideration the peculiar facts of the instant case, particularly the fact that the High Court had ordered an enquiry and obtained a report without furnishing a copy thereof to the appellant and unceremoniously closed the writ petition, we deem it appropriate to issue the following directions: – a. The High Court is directed to supply a copy of the report submitted by Ms. R. Ponni, Superintendent of Police along with the other documents to the appellant herein. b. Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428 of 2018 are restored on the file of the High Court of Madras. c. The High Court is directed to dispose of the cases on their own merit, uninfluenced by any observation made herein. d. Although the prayer for quashing of the FIR was not orally pressed before this Court, however, the appellant is granted liberty to seek appropriate remedy before the High Court.
30. Accordingly, the appeal is disposed of on the above terms. Pending application, if any, stands disposed of. Nidhi Jain Appeal disposed. (Assisted by : Tamana, LCRA) S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS. [N. V. RAMANA, CJI]