Erroneous, Illegal, Perverse: Madras HC sets aside discharge of Maran bros in Telephone Exchange case

The Madras High Court today set aside the trial court’s decision to discharge seven accused – including former Telecom Minister Dayanidhi Maran – in the illegal telephone exchange case..Summing up the tone of the judgement, Justice G Jayachandran observed,.“Error, illegality and perversity all could be pointed out in the impugned order of the trial Court.”.The case pertains to allegations that the accused – including BSNL executives, Dayanidhi Maran, his brother Kalanidhi Maran, and technicians – conspired to install a private telephone exchange at Dayanidhi Maran’s Chennai residences, when he was the Union Telecom Minister..This, in turn, is alleged to have been used for business transactions involving the Sun Television Network (owned by Kalanidhi Maran), leading to a loss of Rs 1.78 crore for the public exchequer..The Central Bureau of Investigation (CBI) filed its FIR against the accused in March 2013. However, last March, the trial court found that there was no prima facie material to proceed against the accused, and discharged them from all charges..After the CBI filed a revision petition against this discharge, Justice Jayachandran found that the trial had grossly violated the parameters for the discharge of an accused, as laid down in the case of Amit Kapoor v. Ramesh Chander..“The order clearly indicates the parameters laid down by Hon’ble Supreme Court Amit Kapoor vs Ramesh Chander cited supra has been grossly violated by the trial Court. .This Court, on its revisional jurisdiction, finds that this is a case where the order of the trial Court is perverse, illegal and to be set right for multiple reasons.”.The judge arrived at this conclusion, in view of the following observations..Heaps of material to draw presumption of guilt.Justice Jayachandran found that the trial court was selective in considering only parts of the material on record, before arriving at its arbitrary conclusion that there was no need to proceed further against the accused..“The trial Court had extracted very few portions of the statements and documents selectively and had arbitrarily arrived at a conclusion that the violations pointed out are only matter for departmental enquiry and rest of the materials does not disclose any criminality against the accused persons.”.After examining some of the prosecution material on record, the High Court found that there is ample evidence to draw a prima facie assumption that the accused are guilty of the offences charged..“This Court is fully satisfied that heaps and heaps of material are available to frame charge against all the accused….…Considering the police report and the documents, only opinion any judicial mind could form is that, there are grounds to presume all the 7 accused have committed offence and not otherwise.”.Section 197 CrPC finds no application in the present case.Section 197 of the Code of Criminal Procedure (CrPC) provides for immunity of public servants from prosecution for acts done in the discharge of their duty. Under this provision, no prosecution can be launched against such persons without prior sanction from the state..One ground cited by the trial court in discharging Dayanidhi Maran was that no sanction was obtained before the prosecution proceeded against him. The High Court, however, found serious fault in invoking this provision in the instant case..“It is also very saddening to note that the trial Court even without canvassing, the trial Court has discharged A3 [Dayanidhi Maran] on the ground that, the prosecution agency has not obtained sanction under Section 197 Cr.P.C to prosecute A3..…This protection is not an omnibus protection but should satisfy two conditions.”.The two conditions here being that the public servant must be of a certain rank, and that the Act should have been done in the discharge of his official duty..In this case, Justice Jayachandran noted that the alleged acts had nothing to do with the official duty of the accused. Further, the offence was taken cognizance of at a time when Dayanidhi Maran was no longer a public servant..“…he was not in the office while taking cognizance of the offence and the specific charge against him is for abuse of his official position conspiring with other accused and making pecuniary advantage of availing free Telephone connections and mobile facility which attracts penal provisions of Prevention of Corruption Act, 1988, also.”.Trial Court cannot insist on proof beyond reasonable doubt at the time of framing charges.As noted in the judgement,.“The trial Court had treated petitions for discharge as a case for appreciating evidence with the decree of proof beyond reasonable doubt. He had totally forgotten the fact that he should only weigh the probability of the case for framing.”.All of these grounds eventually lead the Court to opine,.“None of the reasons given by the trial Court to discharge them is sustainable under law.”.Additionally, the judge has made some scathing remarks against the apparent special treatment meted out to Dayanidhi Maran through the conduct of the case. As observed in the judgment,.“A-3 [Dayanidhi Maran] by virtue of the office, might have been instrumental for popularising broad band facility. .It does not mean that he can claim privilege of unlimited usage of that facility for him, for his brother and his business establishment free of costs. In a democratic country, an elected representative can never think like that. Nor the judicial system tolerate and entertain such thought..Yet another Senior counsel submitted that while the Defence Minister is permitted to enjoy exclusive Air Force Aircraft for her journey and Railway Minster exclusive Saloon for his travel in the train, why not the Minister for Telecommunication have exclusive exchange. To this argument the logical answer could be, ‘Yes, If law permits’ .The corollary will be, if law does not permit, they are liable for prosecution. It is amply shown in this case that law does not permit to have the facilities enjoyed by the accused under service category, hence they are liable for prosecution.”.Accordingly, the High Court has directed the trial court to frame charges and complete the trial within a period of twelve months..Read the judgment: