Summary
On a writ petition seeking an FIR against a former Tamil Nadu Minister for allegedly steering tenders to his aides, the Madras High Court ordered a preliminary enquiry by a Vigilance Superintendent of Police, whose sealed-cover report led the State to seek closure, saying no cognizable offence was found. After a change of government the State recanted, citing CAG reports, and registered an FIR under the IPC and the Prevention of Corruption Act. The High Court refused the Minister a copy of the report and closed the petition. The Supreme Court directed that the report and documents be supplied to him and restored the writ petition: the High Court had failed to peruse the report it had ordered and denied the appellant natural justice, and Section 207 CrPC is not etched in stone where the FIR stems from writ proceedings in which the State contradicted its own affidavit.
Issues
- Whether an accused is entitled, before cognizance and the stage of Section 207 CrPC, to a copy of a preliminary enquiry report obtained by the High Court in writ proceedings which had exonerated him and been accepted by the State, where the State later reversed its stand and registered an FIR.
- Whether the High Court could close the writ petition without perusing the enquiry report it had ordered, merely on the State's changed submissions, and whether the State may 'blow hot and cold' on the same material.
Provisions considered
- Section 207, Code of Criminal Procedure, 1973Ordinarily the accused receives the documents relied upon by the prosecution only after the Magistrate takes cognizance (In Re: Criminal Trials Guidelines), but Section 207 cannot be read as a provision etched in stone so as to cause serious violation of the accused's rights and natural justice where the FIR stems from writ proceedings in which the State contradicted its own affidavit and the earlier preliminary report finding no cognizable offence. (¶¶ 24, 26)
- Article 21 (right to fair trial), Constitution of IndiaProsecution by the State must be carried out consistently with the right to fair trial; with no specific privilege pleaded, there was no good reason to keep the report shrouded in a sealed cover. (¶¶ 27, 28)
- Sections 13(1)(c), 13(1)(d) and 13(2) (with Sections 120B, 409, 420 and 109 IPC), Prevention of Corruption Act, 1988Offences alleged in FIR No. 16/2021 of 09.08.2021 registered after the State's change of stand; the prayer to quash the FIR was not pressed and liberty was reserved to pursue it before the High Court. (¶¶ 11, 17, 29)
Held
- The High Court committed a patent error in not taking the matter to its logical conclusion: having itself ordered a preliminary enquiry by a special officer, it failed even to peruse the report once submitted, left the decision entirely to the State Government and, relying only on State counsel's submissions, made sweeping observations prejudicial to the appellant. Such an approach cannot be countenanced in law. (¶¶ 18, 19, 20)
- The State cannot blow hot and cold at the same time. Its initial affidavit was categorical that it did not intend to proceed against the appellant; when it turned turtle, the High Court neither gave the appellant an opportunity to defend himself nor sought a reasoned justification from the State, which hastened to register the FIR. Natural justice required that the appellant be allowed to defend himself on the material that had initially exonerated him and been accepted by the State. (¶¶ 21, 22)
- Though under normal circumstances an accused obtains the prosecution's documents only after cognizance under Section 207 CrPC, this case is distinguishable: the FIR stemmed from the writ proceedings in which the State re-examined the issue contrary to its own affidavit and the preliminary report; Section 207 cannot be read so rigidly as to violate the appellant's rights and natural justice, prosecution must be consistent with the right to fair trial under Article 21, and absent any pleaded privilege the report should not have remained in a sealed cover. (¶¶ 26, 27, 28)
- The High Court shall supply the appellant a copy of the Superintendent of Police's report and the other documents; W.P. No. 34845 of 2018 and Crl.O.P. No. 23428 of 2018 are restored for disposal on their own merits uninfluenced by these observations, with liberty to the appellant to seek quashing of the FIR before the High Court. (¶ 29)
Result
Appeal disposed of; the Madras High Court's order of 08.11.2021 closing W.P. No. 34845 of 2018 set aside to the extent indicated; the High Court directed to furnish the appellant the preliminary enquiry report of the Superintendent of Police with the other documents; the writ petition and Crl.O.P. No. 23428 of 2018 restored for decision on merits, with liberty to the appellant to challenge FIR No. 16/2021 before the High Court.