It is quite significant to note which cannot be just glossed over that none other than the Apex Court itself as recently as on September 8, 2022 while taking the bull by the horns and sending a very strong straightforward and firm message all across on the key issue of quashing of criminal proceedings on the basis of compromise between complainant and accused when offences are capable of impacting others has in an extremely laudable, learned, landmark and latest judgment titled P. Dharamaraj vs Shanmugam & Ors in Criminal Appeal No. 1514 of 2022 (Special Leave Petition (Crl.) No. 1354 of 2022) With Criminal Appeal Nos. 15151516 of 2022 (@ Special Leave Petition (Crl.) Nos………………… of 2022) (@ Special Leave Petition (Crl.) D. No. 11748 of 2022) been most forthright in mincing just no words whatsoever to hold most explicitly that, Thus it is clear from the march of law that the Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others..
As seen from the final report filed in this case and the counter affidavit filed by the I.O., persons who have adopted corrupt practices to secure employment in the Transport Corporation fall under two categories namely:
- those who paid money and got orders of appointment; and
- those who paid money but failed to secure employment.
If persons belonging to the 2nd category are allowed to settle their dispute by taking refund of money, the same would affix a seal of approval on the appointment of persons belonging to the 1st category. Therefore, the High Court ought not to have quashed the criminal proceedings on the basis of the compromise. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Justice V Ramasubramanian for a Bench of the Apex Court comprising of Justice S Abdul Nazeer and himself sets the ball rolling by first and foremost putting forth in para 1 that:
Permission to file Special Leave Petition(s) is granted in D.No.11748 of 2022.
As we see, the Bench then points out in para 3 that:
There are three Special Leave Petitions on hand, two of which challenge an Order passed by the High Court of Judicature at Madras in a Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C), quashing a criminal complaint in CC No. 25 of 2021 pending on the file of the Additional Special Court for trial of cases related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu, on the ground that all the victims have compromised their claims with the accused. The third Special Leave Petition arises out of an order of dismissal passed by the High Court in a Criminal Miscellaneous Petition filed by a third party by name Anti Corruption Movement, seeking the recall of the order dated 30.07.2021 in the quash petition.
Background Facts
To put things in perspective, the Bench then envisages in para 5 that:
The brief facts sufficient for the disposal of these special leave petitions are as follows:
- On a complaint lodged by one K. Arulmani, working in the technical wing of the factory of the Metropolitan Transport Corporation of Tamil Nadu, a FIR in Crime No. 344 of 2018 was registered on 13.08.2018. To avoid any confusion, the contents of the said complaint are extracted as follows:
I have been working as a Worker in the Technical Wing of the Factory of Metropolitan Transport Corporation (MTC), at Perambur. In the year 2014, an announcement in regard to vacancies existing for the posts of Conductor and Driver in the Transport Department. When I went to our Head Office in Pallavan Salai in connection with work, one Mr. Rajkumar got introduced to me. He told me that he hails from Pambaipadayur near Kumbakonam and he had got close contact with the then Transport Minister, Mr. Senthil Balaji and his younger brother Asok Kumar, through one Mr. Shanmugam, who was the Personal Assistant to Mr. Senthil Balaji and on paying money, jobs would certainly be got. My friends by name Ambedkar, Senthil, Vijayakanth, Muthiah and a few others told to get them jobs in the Transport Corporation and they are ready to pay money for the same.
I told that money was to be given to through one Mr. Rajkumar and should there surface any problem, we should be ready to face the same. They also, agreeing to the same, paid me money, in several installments during the period from 25.12.2014 to 04.01.2015, amounting to Rs. 40,00,000/-, conveyed those details to Mr. Rajkumar. In the first week of January 2015, he and myself went to the house of Thiru Senthil Balaji at R.A. Puram. At that time, Mr. Shanmugam, P.A. to Thiru Senthil Balaji came towards me and received the sum of Rs. 40,00,000/-. We insisted on Thiru Shanmugam to see Thiru Asok Kumar and Thiru Senthil Balaji in person. Thiru Asok Kumar, who came there, when we gave the amount, had assured that all who have paid amounts would be issued with appointments orders. He took us then itself to Thiru Senthil Balaji. He told in an assuring voice that there is no need to worry and all those who gave money would be definitely given appointment orders.
In the list of names released by the Transport Corporation, the names of persons for whom I gave money, have not appeared in list of appointments. Hence, persons who gave money to me started pestering me to return the money. When I asked about it to Thiru Rajkumar, he told that in the next list, their names would definitely come. But in the next list also, names of none came. When I informed this to Thiru Rajkumar, he said that he would enquire about the same to Asok Kumar and Shanmugam and then he would say. But each time when I asked Rajkumar, giving me the very same reply, asked me to wait for some time. Persons who gave me money, started threatening me. On their insistence, I gave them my cheques from my savings bank account with canara Bank, Ambatur Branch, as security.
In pursuance of that, when I asked Rajkumar on 12.10.2015 for returning the money, he gave me two cheques drawn on City Union Bank, Mount Road Branch, filling each cheque with a sum of Rs. 15,00,000/-. He told me to deposit the said cheques for collection at the time when he instructs, on his being paid repaid the amounts by Thiru Senthil Balaji, Asok Kumar and Shanmugam and the balance sum of Rs. 10,00,000/ would be given by him later on. When I went to City Union Bank, Mount Road Branch and checked whether there are sufficient amounts in their accounts, the Bank Officer said that there were no sufficient funds. When I met Raj Kumar, Shanmugam and Asok Kumar several times and requested for returning the money, they asked me to wait for some time.
Persons who gave me money started pestering me very much demanding money. In October 2016, when I met Messrs Senthil Balaji, his younger brother Asok Kumar, and P.A Shanmugam and Rajkumar, and entreated them to return the money to me, after explaining my pathetic position, each one of them said that they cannot return the amount, nothing can be done against them and if I give them trouble demanding money, they would liquidate me along with my family. I am living daily in consternation along with my two children.
As Thiru Senthil Balaji was a Minister then and subsequently a MLA in the ruling party, the situation posing threat to my life in the event of my lodging a complaint against him, was in existence. I came forward to give the complaint now, since he is not holding any post. I therefore humbly request you to kindly initiate appropriate legal action against Messrs Senthil Balaji, Asok Kumar, Shanmugam and Raj Kumar for their acts of fraud, deception and also the threats unleashed against me and get me back the sum of Rs. 40,00,000/- payable to me by all of them.
- The FIR was for alleged offences under Sections 405, 420 and 506(1) of the Indian Penal Code (for short IPC). Four persons by name Shri Senthil Balaji (the then Transport Minister), Shri Ashok Kumar (the brother of the Minister), Shri Shanmugam (Personal Assistant to the Minister) and Shri Raj Kumar were cited as the accused in the FIR.
- After investigation, the police filed a final report dated 12.04.2019 under Section 173(2)(i) of Cr.P.C., against all the four accused named in the First Information Report. The final report indicted the persons named as accused, for alleged offences under Sections 406, 409, 420, 506(1) read with Section 34 IPC. The Special Court for trial of cases related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu took the final report on file in CC No. 25 of 2021.
- Shri Shanmugam named as accused No. 3 then filed a criminal original petition in Criminal O.P. No. 13374 of 2021 on the file of the High Court of Judicature at Madras under Section 482 of the Cr.P.C. praying for quashing the criminal complaint CC No. 25 of 2021.
- Before the High Court, the de facto complainant Shri K. Arulmani filed an affidavit supporting the accused and praying for quashing of the final report, on the ground that what the victims had with the accused was only a money dispute and that the same had been settled out of Court and that due to political rivalry between two groups, his complaint got converted into a more serious one, by including unwarranted statements which were not made by him.
- The victims who originally claimed to have paid money for procuring employment, also filed individual affidavits supporting the accused.
- A joint compromise memo dated 28.7.2021 containing the signatures of 13 victims (who had paid money) on the one hand and accused No.3 on the other hand was also filed before the High Court.
- When the quash petition came up for hearing, the learned Government Advocate appearing for the State made a submission that the occurrence took place in the year 2014 and that the matter was compromised between the accused and the victims in the year 2019 after the filing of the final report.
- Interestingly, all the 13 victims also appeared before the learned Judge of the High Court of Madras through Video Conference and claimed that the issues have been resolved between them and the accused.
- In the light of what had transpired after the filing of the final report, the High Court passed an order dated 30.07.2021 quashing the criminal complaint on the ground that by passage of time, the parties have decided to bury their hatchet and that no useful purpose would be achieved by keeping the criminal case pending. After noticing that the offences are not compoundable in nature, the High Court recorded in one sentence that it had taken note of the guidelines issued by this Court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Ors. vs State of Gujarat (2017) 9 SCC 641 and The State of Madhya Pradesh vs. Dhruv Gurjar and Another (2019) 2 MLJ Crl 10 and concluded that the complaint could be quashed.
- Upon coming to know of the quashing of the complaint, a person by name Shri P. Dharamaraj, who participated in the process of selection for appointment to the post of drivers/conductors in the Metropolitan Transport Corporation, but who did not get selected, has come up with one special leave petition contending that what happened was a cash-for-job scam and that he would have got selected if the scam had not taken place. Since he was not a party to the quash proceedings before the High Court, his special leave petition was accompanied for leave to file Special Leave Petition. The said application was allowed by this Court on 11.02.2022.
- In the meantime, an organization by name Anti Corruption Movement, moved a Miscellaneous Petition before the High Court seeking recall of the order dated 30.07.2021 on the ground that the complaint involved allegations of corruption and abuse of official position and that therefore the chargesheet could not have been quashed on the basis of a compromise between the parties. This application of recall was rejected by the High Court by an Order dated 14.03.2022, primarily on the ground that this Court has already entertained a special leave petition against the order sought to be recalled.
- Therefore, challenging the original order dated 30.07.2011 and the order dated 14.03.2022, the said Association, namely, Anti Corruption Movement has come up with two special leave petitions.
Be it noted, the Bench then notes in para 42 that:
Thus it is clear from the march of law that the Court has to go slow even while exercising jurisdiction under Section 482 Cr.PC or Article 226 of the Constitution in the matter of quashing of criminal proceedings on the basis of a settlement reached between the parties, when the offences are capable of having an impact not merely on the complainant and the accused but also on others.
While taking potshots at the High Court’s judgment, the Bench then candidly concedes in para 43 that:
As seen from the final report filed in this case and the counter affidavit filed by the I.O., persons who have adopted corrupt practices who have adopted corrupt practices to secure employment in the Transport Corporation fall under two categories namely, (i) those who paid money and got orders of appointment; and (ii) those who paid money but failed to secure employment. If persons belonging to the 2nd category are allowed to settle their dispute by taking refund of money, the same would affix a seal of approval on the appointment of persons belonging to the 1st category. Therefore, the High Court ought not to have quashed the criminal proceedings on the basis of the compromise.
Most forthrightly, the Bench then goes on to hold in para 44 that:
It is needless to point out that corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement.
Conclusion
As a corollary, the Bench then further holds in para 50 that:
In the light of what is stated above, the impugned order of the High Court is wholly unsustainable. Therefore the appeals are allowed and the impugned order of the High Court is set aside. The criminal complaint is restored to file. The I.O. shall now proceed under Section 173(8) of the Code to file a further report, based on the observations made in the preceding paragraphs. Additionally/alternatively, the Special Court before which the CC is pending, shall exercise power under Section 216 of the Cr.P.C., if there is any reluctance on the part of the State/I.O. If two other cases where offences under the P.C. Act are included, are under the orders of stay passed by the High Court, the State should take appropriate steps to have the stay vacated. The Court dealing with these two cases should also keep in mind the disastrous effect of putting on hold the prosecution under the P.C. Act.
Finally, the Bench then concludes by holding in para 51 that:
At present we are not passing any orders on the prayer made by the interventions either to constitute a Special Investigation Team or to appoint Special Public Prosecutor, since we do hope that based on the observations made above, the State itself may do the needful. We also make it clear that at the time of trial, the Special Court may not be swayed by the observations contained herein, but proceed on the merits of the case and the law on the points. The appeals are allowed. I.A.s stand closed.
In conclusion, the Apex Court has made it indubitably clear that Courts must be slow in quashing the criminal proceedings on the basis of settlement between complainant and accused when offences are capable of impacting others. We have dwelt on this quite elaborately also! It thus merits no reiteration that all the Courts including the High Courts must abide by what the Apex Court has laid down so very clearly, cogently and convincingly in this leading case.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road Kankerkhera, Meerut – 250001, Uttar Pradesh