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Synopsis

The Supreme Court on Tuesday cleared the decks for resumption of police probe against Tamil Nadu's Minister for Electricity, Excise, and Prohibition, V Senthil Balaji in the cash-for-job scam of 2011-15 by setting aside the Madras High Court's "shocking" order for de novo investigation, which even went against the previous order by the top court.

The court also allowed the investigation by the Enforcement Directorate in the matter, in a further trouble for the leader and others.

"The Investigation Officer shall proceed with further investigation in all cases by including the offences under the Prevention of Corruption Act. Any let up on the part of the Investigation Officer in this regard will pave the way for this court to consider appointing a Special Investigation Team in future," a bench of Justices Krishna Murari and V Ramasubramanian cautioned.

Dealing with multiple appeals against the high court's orders, the bench noted that what was interesting was that the order directing de novo investigation in all the three cases, had actually inured to the benefit of the accused, but the high court put it on the ground that the credibility of the investigation should not be eroded. 

"In fact, the accused did not seek de novo investigation on the ground of slackness on the part of the Investigating Officer, but it was Devasagayam (complainant) who sought it, with the able assistance of the Investigating Officer," it said.

"What is shocking is that the high court directed reinvestigation to be started ab initio, wiping out the earlier investigation altogether," the bench said.

"The high court not only directed the wiping out of the investigation carried out so far, but virtually wiped out even the judgment of this court of September 08, 2022. Hail judicial discipline!" the bench added.

The bench underscored, "We have had precedents of this court reading down statutes but never one of reading down a judgment". 

On September 8, 2022, the Supreme Court had said that refund of money or a compromise between bribe giver and taker was no ground to quash a graft case as corruption by a public servant is an offence against the state and the society at large.

A bench of Justices S A Nazeer (since retired) and V Ramasubramanian had then restored the criminal complaint against Balaji, minister in the Dravida Munnetra Kazhagam (DMK) government, in the scam during his tenure as Transport Minister between 2011 and 2015.

Going into the facts of the instant matter, the division bench said, "We have seen in this case, persons aspiring to secure public employment, paying illegal gratification, through persons who are public servants, to persons in power and later coming to the court supporting the accused on the basis of an out of court settlement". 

"What was compromised between the complainant and accused is not just their disputes, but justice, fair-play, good conscience and the fundamental principles of criminal jurisprudence. In fact, the case on hand is one where there are two teams just for the purpose of record, but no one knows who is playing for which team and where the match was fixed," the bench said.

The court further observed the investigation and trial of a criminal case cannot be converted by the complainant and the accused into a friendly match. "If they are allowed to do so, it is the Umpire who will lose his wicket," the bench said.

"It is an irony that persons who are victims of a huge jobs-for-cash scam are alleged to have come to court with unclean hands by persons whose hands were allegedly tainted with corruption money," the bench said.

Justice Ramasubramanian, who authored the judgment on the part of the bench, said, "We must remember that certain theories of law were developed at a time when the process of administration of the criminal justice system was in the hands of honest and responsible Police officials and the stream remained largely unpolluted". 

"Today the situation is different. In cases of this nature, where some of the complainants and the accused have come together to form an unholy alliance, the victims of crime cannot be left at the mercy of such partnerships," the bench said.

The court pointed out in the case, the Investigation Officer did not choose to include the offences under the PC Act from the year 2015 till 08.03.2021. 

"This cannot be taken to the credit of the Minister, but should be taken as a discredit of the prosecution. If the shield of office protected him from 2015 till he formed part of the splinter group and the shield stood temporarily removed for a brief period of time until he again became a Minister in the next regime, the same cannot be said to be a case of political vendetta. We do not know whether the complainants would have entered into a compromise in July, 2021 if he had not become a Minister again in the new regime," the bench said.

With regard to the contention of the accused questioning the ED probe, the bench said that it was true that there were some offences, which, though scheduled offences, might or might not generate proceeds of crime. 

"For instance, the offence of murder punishable under Section 302 is a scheduled offence. Unless it is a murder for gain or murder by a hired assassin, the same may or may not generate proceeds of crime. It is in respect of such types of offences that one may possibly argue that mere commission of the crime is not sufficient but the generation of proceeds of crime is necessary. In the case of an offence of corruption, the criminal activity and the generation of the proceeds of crime are like Siamese twins," the bench said.

In the matter, the court pointed out all the three FIRs alleged that the accused herein had committed offences included in the Schedule by taking illegal gratification for providing appointments to several persons in the Public Transport Corporation. 

In one case it is alleged that a sum of more than Rs 2 crores had been collected and in another case, a sum of Rs 95 lakhs had been collected. 

"It is this bribe money that constitutes the ‘proceeds of crime’ within the meaning of Section 2(1)(u) of the PMLA. It is no rocket science to know that a public servant receiving illegal gratification is in possession of proceeds of crime. The argument that the mere generation of proceeds of crime is not sufficient to constitute the offence of money-laundering, is actually preposterous," the bench said.

The bench also pulled up Tamil Nadu police, saying, "We do not know why the State Police were averse to the idea of including the offences punishable under the Prevention of Corruption Act, in any of the three FIRs". 

"While one may be averse to corruption, one cannot be averse to the PC Act," the bench said.

With regard to complainant Devasagayam, the court said that it appeared that he originally had a genuine grievance against the culprits at the bottom of the layer, but he later turned out to be a Trojan horse, willing to sabotage the investigation against influential persons. 

"But alas, Devasagayam was not the only one to be blamed. He had a silent partner in the prosecution. If Devasagayam leapfrogged several miles to protect the actual culprits, the High Court seems to have gone one step further by ordering de novo investigation on a point not canvassed in the petition filed by Devasagayam," the bench said. 

Case Title: Y. BALAJI v KARTHIK DESARI & ANR. ETC.