IN the COURT of SPECIAL JUDGE XXXVI ADDITIONAL CITY CIVIL and SESSIONS JUDGE, BANGALORE Spl

1 IN THE COURT OF SPECIAL JUDGE XXXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE Spl. C.C. No: 208 of 2004 Selvi J Jayalalithaa .. Accused No.1 Vs. The Supdt. of Police, DV & AC, Chennai. .. Complainant MEMORANDUM OF WRITTEN ARGUMENTS FILED UNDER SEC. 314 OF Cr.P.C ON BEHALF OF ACCUSED NO.1 1) Accused No.1 has been charged with substantive offence U/s 13 (2) read with Sec 1 3 (i) (e) of the P.C. Act. She has also been charged for the offence of conspiracy u/s 120-(B) I.P.C. Accused No.2 to 4 the charge sheet alleges have abetted A1 in the offence u/s. 13 (i) (e) of the P.C Act. They are therefore charged also u/s 109 IPC. 2) A2 to A4 have never held any public office and therefore they had never been public servants. They are implicated as abettors and co-conspirators in this case, which is unjustified and utterly without justification or lawful basis. A1 is totally innocent and may be honourably acquitted. 3) The Accused No.1 was sworn in as Chief Minister of Tamil Nadu on 24.6.1991 and held that office for five years till 12.5.1996. DMK party, which is an arch political rival to the AIADMK party lead by A1 came to power in May 1996. The prosecution was launched against the Accused in utter malice and the proceedings were taken in total violation of the provisions of Cr.P.C and complete negation of her fundamental rights and fairness. These are detailed in subsequent paragraphs. The FIR in this case was launched against her on 18.09.1996 (Ex P-2266). The charge sheet was filed subsequently on 2 4.6.1997. The check period was taken as 1.7.1991 to 30.4.1996. The prosecution has enclosed along with charge sheet VII Annexures. (Ex.P2327 to 2333) listing out the properties allegedly acquired during the check period and also expenditure incurred by the accused. The charge sheet ultimately conclude the disproportionate asset in a sum of Rs.66,65,20,395/-. With a view to prove the charges, the prosecution examined 259 witnesses and have marked 2341 exhibits, besides material objects documents and exhibits in X series. 4) The Accused have examined 99 defence witnesses and have marked 384 exhibits on their behalf in proof of their defence. She had independently proved the extent of income as well as expenditure incurred by her. 5) The proceedings are contrary to mandatory requirements under Criminal Procedure Code and the Accused No.1 has been gravely prejudiced in her defence. Before dealing with the merits of the case, Accused No.1 seeks to highlight these aspects. They are briefly mentioned hereinafter: ILLEGALITIES DURING INVESTIGATION AND REGISTERING AND FILING OF THE CASE 1) THE REGISTRATION OF FIR P- 2266 DATED 18:09:1996 IS ILLEGAL. II) The above aspect arise and flow from the following undisputed facts. i) PW-232 Dr. Subramaniam Swamy presented a petition before the Principal Sessions Judge (PSJ) in Crl.M.P.No.3238/1996, under Section 200 of the Code. Sworn statement of Dr. Subramaniam Swamy recorded by learned Principal District & Sessions Judge (PSJ for short) who was also at the time acting as a Special Court having 3 competence to try cases under P.C. Act. The petition of Dr. Subramaniam Swamy is Ex.P-2320. ii) On 21:06:1996 PSJ passed an order directing an enquiry into the complaint by PW- 232 Dr. Subramaniam Swamy under Section 202 of the Code. The order directs PW-240 Lathika Charan then, Deputy Inspector General of Police in the Vigilance Anti-Corruption Department of Tamil Nadu to investigate and report to the Court in two months time. iii) The PW-240 in her evidence states that she enlisted number of officers including Nallamma Naidu PW-259 for the purposes of investigation under Section 202 Cr.PC. (Whether the officers who made the investigation at the instance of PW-240, if empowered either under Section 17 or under Section 18 will be considered later). iv) PW-240 in her evidence submits that they have gathered huge amount of documents and records from registration department, income tax department, banks and from other financial institutions. v) In this regard both PW-240 and 259 admit in their evidence that in such an enquiry they examined more than 300 witnesses and recorded their statements. vi) PW-240 also admits that the witnesses who examined were summoned to appear under Section 160 of the Code. One of the persons examined was Dr. Subramaniam Swamy (PW- 232). vii) In the meanwhile, the accused filed a revision to the High Court against the order of PSJ ordering an enquiry under Section 202. The revision was decided by High Court, Madras who did not find fault with learned PSJ ordering an enquiry under Section 202, but only stated that PSJ had no 4 jurisdiction to nominate any particular officer to investigate the case whereas the choice must be left to the Director of DVAC to decide upon it. The order of the High Court, Madras is Ex.D10. viii) On receipt of the order under Ex.D10 of the High Court Madras the Director of DVAC V.C.Perumal examined as PW- 241 nominated PW-259 to investigate. PW-240 was directed to supervise the work of PW-259 however PW-240 says she did not do so. ix) PW-259 has been successively filing application before PSJ stating that they want further time to complete the enquiry and to file the report one such application is dated 08:09:199. In this application PW-259 sought for a further period of 4 months for completing the investigation under Section 202 and to file the report before PSJ. x) It is important to note that PW-240 & 259 both admit that hundred of documents, bank records were perused and possession obtained from the banks, income tax, registration departments during the investigation under Section 202, but for none of them there are any seizure list or mahazar therefor. III) CIRCUMSTANCES LEADING TO REGISTRATION OF FIR i) While so, V.C.Perumal (PW241) admits in his deposition during cross examination on 27.01.2003 that as soon as he was promoted as “I.G. of Police” he received the file from PW-240 Tmt. Lathika Sharan. Then he says “the order came from Tamil Nadu Government. The order was given to me by the Department Director, Thiru Raghvan and I was 5 asked to file the FIR in this case. On the basis of legal opinion and I too was satisfied I filed the FIR in this case. The Government Order came from the Government Public Department. I remember the order was signed by either the Chief Secretary or Public Department Secretary”. It is in evidence by letter dated 12.9.1996 addressed to PW241 by Chief Secretary, conveyed the government decision directing V.C.Perumal to register the FIR. Thus, it will be seen that even though the enquiry, as directed the Principal Sessions Judge, was pending, PW-241 had chosen to register the FIR on the directions from the Government. Thus it is submitted the registration of FIR is patently illegal. ii) On the very evidence of PW-241 the following illegalities will render the registration of the FIR itself invalid and all further proceedings would stand vitiated. a) Under Section 154 of Cr.P.C only the Station House Officer on his satisfaction can register an FIR. b) If he does not perform his duties then a person aggrieved by the refusal or inaction can forward the substance of the information to the Superindent of Police. Thus, the Superindent is in the nature of Appellant Authority having supervisory capacity over SHO. c) The State Government can never direct registration of an FIR as the Code does not give any such power to the Government. IV) THE ABOVE ACTION OF THE GOVERNMENT IS INVALID AND CONTRARY TO SETTLED PRINCIPLES OF LAW. a) When statute requires a thing to be done in a particular manner it has to be done in that manner only performance by any other mode is prohibited. 2014 (3) SCC 502 Para 60 & 61. 6 b) When PW-241 under the scheme of the Code is an Appellate Authority to the Station House Officer and therefore, he himself cannot exercise the power of the original authority namely that of SHO he can only correct their mistakes if any. This is laid down in the above decision 2014 (3) SCC 502 Para 63, 66, 68 & 69. This judgment is at Page 61 of Vol.1 Compilation of Judgments. c) When the power of Act is entrusted to a particular body or person he must act and exercise the power independently and cannot be influenced by much less directed by another body even a superior. If he acts on external dictation then the exercise of power will be wholly invalid 1997 (7) SCC 622 Mansukhlal Vithaldas Chauhan V/s State of Gujarat Para 23 & 28 (the judgment was filed before the Court on 23:07:2014). d) The decision reported in 1997 4 SCC 770 (Vol.1 Judgments Pg 106) Union of India V/s Susheel Kumar Modi need for the independent exercise a power by the police is emphasised and earlier judgment in Veeneth Narain case and quotation from Lord Denning cited. (Para 4, 5 & 10 may be seen). e) The registration FIR Exp.2310 is also invalid and makes a strange reading.

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