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2000 DIGILAW 45 (MAD)

Selvi J. Jayalalitha v. State

2000-01-13

S.THANGARAJ

body2000
Judgment :- The petitioner/first accused in C.C. No. 4 of 1997 and C.C. No. 13 of 1997 on the file of XIII Additional Sessions Judge/Special Judge, Chennai has filed the following Criminal Revision Cases :- (1) Crl. R.C. No. 406 of 1998 filed challenging the order passed by the Special Judge, Chennai in Crl. M.P. No. 155 of 1997 in C.C. No. 4 of 1997 filed by the petitioner for her discharge. (2) Crl. R.C. No. 606 of 1999 filed by the petitioner against the order passed by the Special Judge, Chennai challenging the charges framed against the petitioner in C.C. No. 4 of 1997 by the Special Judge, Channai. (3) Crl. R.C. No. 929 of 1999 is filed by the petitioner against the order of Special Judge, Chennai in Crl. M.P. No. 830 of 1999 dismissing the said petition filed under Section 91 Cr. P.C.; and (4) Crl. R.C. No. 930 of 1999 filed by the petitioner against the order in Crl. M.P. No. 571 of 1999 filed by the petitioner under Section 239 Cr. P.C. for her discharge in C.C. No. 13 of 1997. The petitioner Selvi Jayalalitha was the Chief Minister of Tamil Nadu between June, 1991 to May, 1996. In 1996, the respondent police have registered a case in Crime No. 17 of 1996 in respect of sale of two immovable properties of Tamil Nadu Small Industries Corporation, a Tamil Nadu Government Corporation incorporated under the Companies Act, 1956 to (1) M/s. Jaya Publication and (2) M/s. Sasi Enterprises that on the charge-sheet filed by the respondent police, C.C. No. 4 of 1997 was taken on file by the XIII Additional Sessions Judge/Special Judge, Chennai, that for purchase of another immovable property belonging to the said Corporation by M/s. Sasi Enterprises, on the charge-sheet filed by the respondent police, C.C. No. 13 of 1997 was taken on file by the XIII Additional Sessions Judge/Special Judge, Chennai. The petitioner herein has filed a petition in Crl. M.P. No. 155 of 1997 for her discharge in C.C. No. 4 of 1997 and the special Judge dismissed the said petition by his order dated 20-4-1998. Challenging the said order, Crl. R.C. No. 406 of 1999 has been filed by the petitioner/first accused. As the Special Judge has framed charges against her, challenging the framing of charges in C.C. No. 4 of 1997, the petitioner/first accused has filed Crl. Challenging the said order, Crl. R.C. No. 406 of 1999 has been filed by the petitioner/first accused. As the Special Judge has framed charges against her, challenging the framing of charges in C.C. No. 4 of 1997, the petitioner/first accused has filed Crl. R.C. No. 606 of 1999. The petitioner/first accused has filed Crl. M.P. No. 830 of 1997 in C.C. No. 13 of 1997 under Section 91 Cr. P.C. to issue summons to the investigating officer to produce certain documents. The Special Judge by his order dated 12-7-1999 has dismissed the said petition and challenging the order of dismissal, the petitioner has filed Crl. R.C. No. 929 of 1999. The petitioner has filed Crl. M.P. No. 571 of 1997 in C.C. No. 13 of 1997 for her discharge and the special judge dismissed her petition by an order dated 12-7-1999 and challenging the said order, the petitioner has filed Crl. R.C. No. 930 of 1999. On the complaint of one Tmt. O. P. Sussamma, Secretary to Government, Small Industries Department, a case was registered by the respondent police in Crime No. 17 of 1996 on 9-7-1996 and after investigation, a final report was filed against the petitioner/first accused and other for offences under Sections 169 I.P.C., 420 read with 34 I.P.C., 420 read with 109 I.P.C., 409 I.P.C. and 120-B.I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Likewise, for the purchase of immovable property belonging to the Tamil Nadu Small Industries Corporation by M/s. Sasi Enterprises, the final report was filed against the petitioner for similar offences and in both the firms, the petitioner/first accused was a partner. Those purchases have been effected during the period when the petitioner was the Chief Minister of Tamil Nadu. Their Lordships of the Supreme Court in M. Karunanidhi v. Union of India, (1979) 3 SCR 254 : (1979 Cri LJ 773) held that the Chief Minister of a State is a public servant, There cannot be any controversy that the Chief Minister is a public servant. The major charge against the petitioner is that while she was Chief Minister of Tamil Nadu, M/s. Jaya Publication and M/s. Sasi Enterprises, the two firms wherein she was a partner, have purchased two immovable properties for a price lower than that of the Government guideline value. The major charge against the petitioner is that while she was Chief Minister of Tamil Nadu, M/s. Jaya Publication and M/s. Sasi Enterprises, the two firms wherein she was a partner, have purchased two immovable properties for a price lower than that of the Government guideline value. Learned Special Judge framed charges against the petitioner in both the cases dismissing the petition filed by her. On the complaint of one Tmt. O. P. Susamma, Secretary to Government Small Industries Department, the respondent police have registered a case in Crime No. 17 of 1996 and filed two charge-sheets and in both the charge sheets, similar charges have been shown. Learned counsel Mr. N. Jothi for the petitioner has argued that there are no materials to frame any charge against the accused/petitioner in both the cases and to substantiate his contention, he has relied on number of decisions. Learned senior counsel Mr. N. Natarajan, for the public prosecutor, has argued that there are sufficient materials on record to frame such charges against the petitioner and the framing of charges by the trial Court cannot be validly questioned by the petitioner. Learned senior counsel Mr. Natarajan has relied on a decision of the Supreme Court in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744 : (1996 Cri LJ 2448) wherein their Lordships of the Supreme Court in paragraph 30 have held - "In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that prima facie case against him exists and so, frame charge against him for committing that offence." Their Lordships in Para 31 of the said judgment have considered the meaning of the word "presume" and held thus - "Let us note the meaning of the word "presume". In Black's Law Dictionary, it has been defined to mean "to believe or accept upon probable evidence". In shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming". In Black's Law Dictionary, it has been defined to mean "to believe or accept upon probable evidence". In shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming". Stroud's Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged." In Law Lexicon by P. Ramanath Ayyer the same quotation finds place at page 1007 of 1987 edition." After considering the various aspects regarding the framing of charge. Their Lordships in paragraph 32 have held - "The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exist. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." In the said decision their Lordships have held that if there is ground for presuming that the accused has committed the offence, the Court can justifiably say that prima facie case exists against him. Section 4 of the Indian Evidence Act says - "May presume", - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it; "Shall presume". - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved; "Conclusive proof". - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved; "Conclusive proof". - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it." In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 : (1977 Cri LJ 1606), Their Lordships have considered the discharge or framing of charge in a sessions trial by a Sessions Judge and held (Para 4). ............ "But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not." In Union of India v. Prafulla Kumar Samal, 1979 SCC (Cri) 609 : (1979 Cri LJ 154), Their Lordships have held (Para 10) :- "Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial." In L. K. Advani v. Central Bureau of Investigation, 1997 Cri LJ 2559, the Delhi High Court held (Para 57) - "It is manifest from above that the charges can be framed against an accused person only in those discerning few cases where the Court comes to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charges." .............. ................ ........... ................ ........... "In other words, the Court would be justified in framing the charges against an accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a full-fledged tree of conviction lateron. For the purpose of framing of charge, what is required is sufficient material to presume that the accused has committed the offence. In Som Nath Thapa's case (1996 Cri LJ 2448), Their Lordships have held that "if the Court to think that the accused might have committed the offence it can frame charge." It was further stated that if there is ground for presuming that the accused has committed the offence, the Court can justifiably say that a prima facie case exists against him. In Ramesh Singh's case (1977 Cri LJ 1606), it was held that the presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal case and it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. In similar decisions, it was held that (1) strong suspicion; (2) presumption; and (3) prima facie case are necessary to frame charge. Strong suspicion should lead to the presumption that there is a prima facie case to proceed against the accused. Learned counsel for the petitioner has relied on some decisions to show that charge need not be framed merely by relying on the documents referred to in Section 173 Cr. P.C. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra, AIR 1972 SC 545 : (1972 Cri LJ 329), Their Lordships of the Supreme Court have considered the question of framing of charge and held (Para 16) - "The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution." Section 239 Cr. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution." Section 239 Cr. P.C. says - "When the accused shall be discharged :- If upon considering the police report and the documents sent with it under Section 173 and making such examination if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." For a discharge under Section 239 Cr. P.C., the charge against the accused to be "groundless". In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, 1989 SCC (Cri) 285, Their Lordships of the Supreme Court have held that - "The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial." In Minakshi Bala v. Sudhir Kumar, (1994) 4 SCC 142 at page 14, while considering Sections 239 and 240 Cr. P.C. at the time of framing of charge, it was held - "Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 Cr. P.C. and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 Cr. P.C.; conversely, if he finds that there is ground for presuming that the accused has committed the offence triable by him he has to frame a charge in terms of Section 240 Cr. P.C." The same view was followed by Their Lordships in State Andi-Corruption Bureau v. P. Suryaprakasam, 1999 SCC (Cri) 373. P.C.; conversely, if he finds that there is ground for presuming that the accused has committed the offence triable by him he has to frame a charge in terms of Section 240 Cr. P.C." The same view was followed by Their Lordships in State Andi-Corruption Bureau v. P. Suryaprakasam, 1999 SCC (Cri) 373. In State of Karnataka v. L. Muniswamy, AIR 1977 SC 1489 : (1977 Cri LJ 1125), Their Lordships have held (Para 10) - "There is sufficient ground for proceeding against an accused the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible." In the case of Prafulla Kumar Samal, (1979 Cri LJ 154) (stated supra), it was held that while considering the question of framing the charge under Section 227 Cr. P.C., the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and further held that the test to determine a prima facie case would depend upon the evidence produced before the Court. The Judge has to consider the broad probabilities of the case and the total effect of evidence and the documents produced and at the same time should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." In Shri Satish Mehra v. Delhi Administration (1996) 7 JT (SC) 6, Their Lordships have held - "Hence, we are of the view that sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code." From these decisions, it is clear that Court has the power of sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out and that if there is a ground for putting the accused on trial, charge has to be framed that if there is no ground for presuming that the accused has committed the offence it is groundless and the accused has to be discharged. While looking into the material, the Court should not enter into a roving enquiry and at the same time, the Court should consider the materials available and come to the conclusion whether there are sufficient materials to frame charge against the accused and that at the time of framing of charge, the Court has got powers to consider even materials produced by the accused at that stage. Therefore, at the time of framing of charge, the Court has to consider the materials available on record and also by examining the accused and upon hearing both sides and on considering the materials, if any, produced by the accused, that if there is ground for presuming that the accused has committed the offence, the Court can justifiably say that a prima facie case against him exists and frame charge for committing the offence. Learned counsel Mr. N. Jothi appearing for the petitioner has strenuously contended that none of the offences for which charges are framed by the Special Court are made out against the accused and the Special Court has committed a grave error in framing charges against the petitioner for various offences. Per contra, Mr. N. Natarajan, learned counsel for the Public Prosecutor, has contended that on the materials available on record, the Special Judge has justifiably framed charges against the accused and in order to avoid her participation in trial, the petitioner has come forward with these petitions challenging the framing of charges against her for various offences. Learned counsel Mr. N. Jothi has elaborately argued to point out that none of the offences for which charges are framed by the special Judge are made out against the petitioner and if he has dealt with each and every offence, there are no sufficient materials to frame such charges against the petitioner. The first and foremost argument advanced by learned counsel is regarding framing of charge for an offence under Section 169 I.P.C. Section 169 I.P.C. says - "Public servant unlawfully buying or bidding for property. The first and foremost argument advanced by learned counsel is regarding framing of charge for an offence under Section 169 I.P.C. Section 169 I.P.C. says - "Public servant unlawfully buying or bidding for property. - Whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, if purchased, shall be confiscated." Learned counsel for the petitioner has pointed out that (1) the person should be a public servant, (2) in his capacity as public servant, he is legally prohibited from purchasing or bidding certain property; and (3) either in his name or in the name of another or jointly, or in shares with others. The word 'certain property' carries the whole meaning of the Section. However, either this Section or any other Section points out what are all those properties which a public servant should not purchase or bid in the auction. The terms of Section 169 I.P.C. clearly prohibits a public servant from purchasing certain property. It was contended on the side of the respondent that the Code of Conduct for the public servant serving in Government of Tamil Nadu are defined in G.O. Ms. No. 934 Public (Special) Department dated 10-5-1965 and G.O. Ms. No. 1350 Public (Special-B) Department dated 25-6-1968. By showing the prohibition or prevention or bar to a Government servant from purchasing 'certain property' is on the basis of the Government Orders of the Government of Tamil Nadu, it was argued by the petitioner that such orders passed by the Government do not bear the teeth of a statute. In Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 , Their Lordships of the Supreme Court have considered two circulars issued by the Director of Public Instruction, Kerala and held those two circulars have no statutory basis and are mere departmental instructions. In Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 , Their Lordships of the Supreme Court have considered two circulars issued by the Director of Public Instruction, Kerala and held those two circulars have no statutory basis and are mere departmental instructions. In Bhuvan Mohan Patnaik v. State of A.P., AIR 1974 SC 2092 : (1975 Cri LJ 556), it was held that departmental instructions are neither "law" within the meaning of Article 13(3)(a) nor are they "procedure established by law" within the meaning of Article 21 of the Constitution of India. In the earlier decision in Ram Chandra v. State of Bihar, AIR 1961 SC 1629 : (1961 (2) Cri LJ 811), it was held (Para 5) - It has been held in A. K. Gopalan v. State of Madras, AIR 1950 SC 27 : (1950 Cri LJ 1383) that in Article 21, the word 'law' has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice, and "procedure established by law" made the State, this is to say, by the Union Parliament or the Legislatures of the States, Section 4 has been enacted by Parliament and therefore, it must be held that what it lays down is a procedure established by law." In Vijayaraghavan v. State of Tamil Nadu, 1993 Writ LR 294 a Division Bench of this Court, after considering G.O. Ms. No. 990 Revenue Department dated 16-6-1984, held that the said G.O. cannot be a statutory one and it is only an administrative order issuing certain guidelines to its departmental officers. It was further held by their Lordships "when that be the position we failed to see how the alleged non-compliance with any of those administrative guidelines therein will help the appellant to challenge the acquisition proceedings which are otherwise valid in law". Therefore, the two G.Os. relied on by the respondents cannot be taken as a statutory prohibition or bar against the petitioner here in to purchase the property in an auction held by the Tamil Nadu Small Industries Corporation. The word 'certain' in the said section is not defined therein. The bar shown under those two G.Os. Therefore, the two G.Os. relied on by the respondents cannot be taken as a statutory prohibition or bar against the petitioner here in to purchase the property in an auction held by the Tamil Nadu Small Industries Corporation. The word 'certain' in the said section is not defined therein. The bar shown under those two G.Os. cannot operate as a statutory prohibition against the petitioner and in such circumstances, can we legally presume that there are sufficient materials to frame charge against the petitioner ? Such prohibitions are found in the Civil Procedure Code and certain Acts also. Order 21 Rule 73 C.P.C. says - "Restriction on bidding or purchase by officers. - No officer or other person having any duty to perform in connection with any sale shall, either directly of indirectly, bid for, acquire or attempt to acquire any interest in the property sold." Section 19 of the Cattle Trespass Act, 1871, says - "Officers and pound-keepers not to purchase cattle at sale under the Act :- No officer of police or other officer or pound-keeper appointed under the provisions herein contained shall, directly or indirectly, purchase any cattle at a sale under this Act." Section 136 of the Transfer of Property Act, 1882 says - "Incapacity of officers connected with Court of justices - No Judge, legal practitioner, or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claims so dealt with by him as aforesaid." Section 189 of the Railways Act, 1989 says - "Railway servants not to engage in trade. - A railway servant shall not - (a) purchase or bid for, either in person or by an agent, in his own name or in that of another, or jointly or in shares with others, any property put to auction under Section 83 or Section 84 or Section 85 or Section 90 or (b) in contravention of any direction of the railway administration in this behalf, engage in trade". Such prohibitions are imposed against public servant under various Acts. Such prohibitions are imposed against public servant under various Acts. Any breach alleged in respect of a Code of conduct imposed upon a public servant will not amount to an offence punishable under Section 169 I.P.C., as Code of Conduct is not a statutes. The words "Certain property" stated in Section 169 I.P.C. has special significance while construing the offence under Section 169 I.P.C. What are such properties has to be decided by looking into the facts and circumstances of each case. As already stated, the Chief Minister is a public servant and the present petitioner has not raised any objection saying that she was not a public servant at the time when the property was purchased by M/s. Jaya Publication and M/s. Sasi Enterprises. The fact remains that the property concerned owned by TANSI was attempted for sale since 1985 and every such attempt went in van for the simple reason there were no bidders for a reasonable consideration. The petitioner became the Chief Minister in 1991 and once again in order raise more resources for the better functioning of the TANSI, such a decision was renewed. The authorities concerned have published the news of auction of those properties in newspapers and thereafter, in the auction held, the properties were purchased by M/s. Jaya Publication and M/s. Sasi Enterprises wherein the petitioner happened to be a partner. The case against the petitioner is that being a public servant, the properties were purchased in the name of M/s. Jaya Publication and M/s. Sasi Enterprises by the petitioner. The reasons, that the petitioner was a public servant and the property was purchased by the firm in which she was a partner would be insufficient to frame a charge against her unless the main ingredients, are prima facie satisfied that the petitioner is liable for punishment for the purchase of the said property. Unlike the full time public servants, the Chief Minister and other appointees who fall under the definition of public servant under Section 21 I.P.C. have their own business or avocation they like, apart from their status as public servant in lieu of the office they hold. Such question came before a Full Bench of the Andhra Pradesh High Court in Vidadala Harinadhababu v. N. T. Ramarao, AIR 1990 Andh Pra 20. Such question came before a Full Bench of the Andhra Pradesh High Court in Vidadala Harinadhababu v. N. T. Ramarao, AIR 1990 Andh Pra 20. Shri N. T. Ramarao who was acting as hero in films became the Chief Minister of Andhra Pradesh when his party was voted to power and during his office as Chief Minister, he made publicity that the N.T.R. Trust is going to produce a film "Brahmarishi Viswamithra" and the petitioner V. Harinadhababu filed a writ petition challenging the said decision. The Full Bench of the Andhra Pradesh High Court held (para 38) - "The Court cannot perform a pure and simple legislative function. It is significant to notice that the Constitution has left several matters un-said. Even the parliament or the State Legislature has not thought it fit to make a law regulating the conduct of Ministers. It would be inadvisable for the Court to seek to supply the omission by evolving a law/code itself, and then enforce it. The Ministers are primarily responsible to the Legislature. Any deviation from moral and ethical standards is a matter for the Legislature and ultimately for the people to deal with." The petitioner as Chief Minister of Tamil Nadu can be a partner in a firm and the same cannot be questioned and in fact, no such question has been raised. The only question raised is that the alleged offences were committed by her in the purchase of the property belonging to TANSI by the said firms. To answer the said charge under Section 169 I.P.C., there must be a prima facie case against the petitioner. Section 43 I.P.C. says the meaning of the word 'illegal' includes :- (i) everything which is an offence; (ii) everything which prohibited by law; and (iii) everything which furnishes ground for a civil action. We have to see whether any such illegal act has been committed by the petitioner, who was legally bound to do which is legal and omitted to do which is illegal. The word "offence" has been defined in Section 3(38) of the General Clauses Act (Act 10 of 1897) - "Offence" shall mean any act or omission made punishable by any law for the time being in force;" According to the definition, an act or omission made punishable by any law is an offence. The word "offence" has been defined in Section 3(38) of the General Clauses Act (Act 10 of 1897) - "Offence" shall mean any act or omission made punishable by any law for the time being in force;" According to the definition, an act or omission made punishable by any law is an offence. It is clear that any breach in following a Government Order cannot be an offence punishable under I.P.C. This is one of the reasons which would stand against the respondent to frame charge against the petitioner for an offence under Section 169 I.P.C. When there is no material regarding the substantial ingredients to make out the said offence, it cannot be said that there is prima facie case against her or that the materials available on record are sufficient enough to convert into evidence at the time of trial to make out an offence under Section 169 I.P.C. The next major charge framed against the petitioner is for an offence punishable under Section 409 I.P.C. Criminal breach of trust is defined under Section 405 I.P.C. For the offence of criminal breach of trust by public servant or by banker, merchant or agent, the punishment is provided under Section 409 I.P.C. The major argument in respect of Section 409 I.P.C. by the petitioner is that both the properties purchased by M/s. Jaya Publications and M/s. Sasi Enterprises are immovable properties which are not covered under Section 405 I.P.C. and therefore, not punishable under Section 409 I.P.C. The major ingredients to make out an offence punishable under Section 409 I.P.C. against the petitioner are :- "(i) That the petitioner was a public servant; (ii) that she was in such capacity entrusted with the property in question or with dominion over it; (iii) that she committed criminal breach of trust in respect of it; Learned counsel for the petitioner has argued that the property covered under the said Section is only movable property because "misappropriation" should be there. According to the petitioner, Section 403 I.P.C. deals with "immovable property" and likewise the word 'property' used in Sections 405, 407 ad 408 means only movable properties because such properties are liable for misappropriation. According to the petitioner, Section 403 I.P.C. deals with "immovable property" and likewise the word 'property' used in Sections 405, 407 ad 408 means only movable properties because such properties are liable for misappropriation. Learned counsel for the petitioner eloquently argued that an immovable property cannot be misappropriated and even by a mere reading of the Section would go to show that it deals with movable property and that he is unable to lay his hands on any decision which says that immovable property can be misappropriated and for such misappropriation punishment can be awarded under Section 409 I.P.C. To substantiate his argument, learned counsel for the petitioner has relied on two decisions. In Chandan Lal v. Emperor, AIR 1926 Lahore 478 : (1926 (27) Cri LJ 899) wherein it was held that criminal breach of trust cannot be committed in respect of immovable property. In U. Ka Doe v. Emperor, AIR 1930 Rangoon 158 : (1930 (31) Cri LJ 799) it was held that Section 405 I.P.C. refers only to movable property. Mr. N. Natarajan, learned counsel for Public Prosecutor, has relied on a decision of the Supreme Court in R. K. Dalmia v. Delhi Administration, (1963) 1 SCR 253 at page 277 (of SCR) : (1962 (2) Cri LJ 805) (at p. 817 paras 47 and 48 of Cri LJ) wherein it was held - "We are of opinion that there is no good reason to restrict the meaning of the word 'property' to movable property only when it is used without any qualification in Section 405 or in other sections of the Indian Penal Code. Whether the offence defined in a particular section of the Indian Penal Code can be committed in respect of any particular kind of property will depend not on the interpretation of the word 'property' but on the fact whether that particular kind of property can be subject to the acts covered by that Section. It is in this sense that it may be said that the word 'property' in a particular section covers only that type of property with respect to which the offence cotemplated in that section can be committed. Section 22 I.P.C. defines 'movable property'. The definition is not exhaustive. It is in this sense that it may be said that the word 'property' in a particular section covers only that type of property with respect to which the offence cotemplated in that section can be committed. Section 22 I.P.C. defines 'movable property'. The definition is not exhaustive. According to the section the words 'movable property' are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. The definition is the expression 'movable property' and not of 'property' and can apply to all corporeal property except property excluded from the definition. It is thus clear that the word 'property' is used in the Code in a much wider sense than the expression 'movable property'. It is not therefore necessary to consider in detail what type of property will be included in the various sections of the Indian Penal Code." Learned senior counsel has urged that the word 'property' used in Section 405 I.P.C. includes immovable property also. When we see the above decision, it is clear that while interpreting the word 'property' Their Lordships have given importance to the reason that on the fact, whether that particular kind of property can be subjected to the acts covered by that Section. Learned counsel for the petitioner argued that in the case of B. K. Dalmia, (1962 (2) Cri LJ 805), the property misappropriated was "funds" and not an "immovable property" and therefore, it cannot be said that the said decision has laid down that the word 'property' in Section 405 includes immovable property. Learned counsel further argued that the said decision deals only about 'actionable claims' and not about "immovable property". As contended by learned counsel for the petitioner, the word 'property' in Section 405 I.P.C. can be taken for a wider meaning than movable property and at the same time, no decision has been referred to before me to show specifically, that the word 'property' in the said Section would include "immovable property" also. In Common Causes A Registered Society v. Union of India, (1999) 6 SCC 667 : ( AIR 1999 SC 2979 ), it was held (Para 159) - "A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. In Common Causes A Registered Society v. Union of India, (1999) 6 SCC 667 : ( AIR 1999 SC 2979 ), it was held (Para 159) - "A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner." ... ... ... "The expressions "entrusted with property" and "with any dominion over property" used in Section 405 came to be considered by this Court in C.B.I. v. Duncans Agro Industries Ltd., AIR 1996 SC 2452 : (1996 Cri LJ 3501) and the view earlier expressed was reiterated. It was held that the expression "entrusted" has wide and different implication in different contexts and the expression "trust" has been used to denote various kinds of relationships like trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee." As already stated, in the circumstances of the case, it cannot be said that the petitioner is either entrusted with the property or dominion over the property as contemplated under Section 405 I.P.C. In the instant case, there is no material to come to the conclusion that any such trust has been created in respect of the said property and the relationship between the petitioner and TANSI is not one of a trustee and beneficiary. In such circumstances, the argument of learned counsel for the petitioner that there cannot be any charge for an offence punishable under Section 409 I.P.C. in respect of immovable property cannot be brushed aside easily. Section 409 I.P.C. contemplates "in any manner entrusted with property, or any dominion over property in his capacity of a public servant". From the said Section, it is not only entrustment, but also dominion over the property in his/her capacity as a public servant should be made out to satisfy the main ingredients of the said Section. Section 409 I.P.C. contemplates "in any manner entrusted with property, or any dominion over property in his capacity of a public servant". From the said Section, it is not only entrustment, but also dominion over the property in his/her capacity as a public servant should be made out to satisfy the main ingredients of the said Section. (a) Chambers 20th Century Dictionary (1983 Edition) at page 370 defines the word "domain" as "what one is master of or has dominion over; an estate; territory; ownership of land." (b) In P. Ramanatha Aiyar "The Law Lexicon the Encyclopaedic Law Dictionary" (1997 Edition) defines the word 'dominio' as "a term in Spanish law to mean the most complete right of ownership" and the meaning of the word 'dominion' along with other meaning "lands or domain subject to sovereignty or control". (c) In Black's Law Dictionary (6th Edition) published in 1990 at page 486 says 'dominion' as "Generally accepted definition of "domination" is perfect control in right of ownership. The word implies both title and possession and appears to require a complete retention of control over disposition." When we see the meaning of the word dominion, it gives a perfect control in right of ownership of the property. Can it be said a public servant, who holds a particular port-folio, has dominion over land (i.e.) a perfect control in right of ownership. From the meaning of the word dominion also, it cannot be said that the petitioner as Chief Minister or even Minister for Industries had a perfect control in right of ownership or in such capacity as minister, she had both title and possession of the said land. Therefore, there was no entrustment of the said property and when we see the meaning of the word 'dominion', it cannot be said that she had such dominion over the said properties either as Chief Minister or as Minister for Industries. Therefore, it cannot be said that there is a ground for presuming that the accused has committed the offence and the Court can justifiably say that a prima facie case against her exists and so, frame a charge against her for committing the said offence. The next major charge against the accused is one under Section 13(1)(c) of the Prevention of Corruption Act, 1988. The next major charge against the accused is one under Section 13(1)(c) of the Prevention of Corruption Act, 1988. Section 5(1)(c) of the Prevention of Corruption Act, 1947 is analogous to that of Section 13(1)(c) of the new Act. Various Courts have held that Section 5(1)(c) of the Prevention of Corruption Act, 1947 and Section 409 I.P.C. are identical. The Supreme Court considered this question in Om Prakash Gupta v. State of U.P., AIR 1957 SC 458 : (1957 Cri LJ 575) and held that they are not identical in essence, import and content and that they are distinct and separate" Their Lordships have given three major points of difference between these two Sections and held that they are distinct and separate. As held by the Supreme Court if charges are framed under Section 409 I.P.C. and under Section 13(1)(c) of the Prevention of Corruption Act, 1988, they are maintainable. We have already seen that in the circumstances of the case, a charge under Section 409 has not been made out. Section 13(1)(c) deals with dishonest or fraudulent misappropriation or otherwise converting for his own use any property entrusted to a public servant. Section 24 I.P.C. defines, the word "dishonestly" - "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, said to do that things "dishonestly." It was alleged that the petitioner herein has caused wrongful loss to TANSI and wrongful gain to M/s. Jaya Publication and M/s. Sasi Enterprises. When we look into evidence available on record there is no entrustment or dominion over the properties on which misappropriation was alleged to have been committed by the accused. Without entrustment or dominion over the property the offence cannot be proved and hence the subsequent events of wrongful loss or wrongful gain need not be considered. Section 25 I.P.C. defines 'fraudulently' as "a person is said to do a thing "fraudulently" if he does that thing if he has sufficient cause to believe that thing but not otherwise." If a person did anything with intend to defraud, that person said to have did the thing "fraudulently". In the year 1985, the proposal to sell the property was taken by TANSI, a Corporation wholly owned by the Government of Tamil Nadu. In the year 1985, the proposal to sell the property was taken by TANSI, a Corporation wholly owned by the Government of Tamil Nadu. Article 298 of the Constitution of India empowers the Union of State to carry on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purposes. The Government of Tamil Nadu for the purpose of carrying on business have started TANSI. It is a company and as such, it has an independent existence. The company has Directors, Managing Director and Chairman as contemplated under Companies the Act. After taking the decision for disposal of the property, there were some unsuccessful auctions earlier and after the petitioner became the Chief Minister of Tamil Nadu, the earlier proposal for disposing of the property was renewed for the purpose of getting more funds for the business of the said Corporation. The property was purchased in public auction and it is not like any other case to say that the accused did anything fraudulently. There must be material to make out a "prima facie case" or to have a "presumption" to come to the conclusion that there exists a primal facie case. There must be some material to connect the accused with the offence. The reasons stated on the side of the prosecution that the accused presided over the meeting in which the proposal to sell the property was renewed, that the petitioner was the Chief Minister and also Minister for Industries at the relevant point of time, are all remote circumstances which do not have a direct bearing with the charge. Therefore, it is a case wherein there is no material even to presume the existence of a prima facie case. In such circumstances, there are no materials to frame a charge under Section 13(1)(c) of the Prevention of Corruption Act 1988. Another charge has been framed against the accused under Section 13(1)(d) of the Prevention of Corruption Act, 1988 for criminal misconduct by the petitioner. The ingredients of Section 13(1)(d) of the Prevention of Corruption Act are :- (1) the persons should hold office as public servant; (2) that person should obtain any valuable thing or pecuniary advantage for himself or any other person; (3) such obtaining of thing or pecuniary advantage is without any public interest. The ingredients of Section 13(1)(d) of the Prevention of Corruption Act are :- (1) the persons should hold office as public servant; (2) that person should obtain any valuable thing or pecuniary advantage for himself or any other person; (3) such obtaining of thing or pecuniary advantage is without any public interest. We have stated the various circumstances under which the properties were purchased by M/s. Jaya Publications and M/s. Sasi Enterprises. "Public interest" means an act beneficial to the general public. Action taken in public interest necessarily means an action for public purpose. The very facts of the case would go to show that the properties were not purchased by corrupt or illegal means by abusing the official position as public servant or by obtaining pecuniary advantage discarding public interest. The purchase was effected in the auction held by TANSI. The right to sell the property was with the said Corporation and the Officers incharge of the Corporation thought fit to sell the properties in favour of the two firms. No material has been produced before me to show that the accused obtained for herself or any other person any valuable thing or pecuniary advantage by abusing her position as public servant or obtained any valuable thing or pecuniary advantage while holding the office as a public servant or obtained any valuable thing or pecuniary advantage without any public interest. Simply for the reasons that two of the firms wherein the petitioner was a partner have purchased the properties in the auction would not lead to the presumption of existence of a prima facie case against the accused especially in the absence of any material to that effect. The end cannot justify the means. It is well settled that unless there are grounds, no charge can be framed against the accused. Apparently one may feel that being Chief Minister and Minister for Industries she has misused her official position to take pecuniary advantage without any public interest in purchasing the said properties. What is required under criminal law is materials to make out a prima facie case against the accused at the time of framing of charge. When such material is lacking no charge can be framed under Section 13(1)(d) of the Prevention of Corruption Act, 1988. What is required under criminal law is materials to make out a prima facie case against the accused at the time of framing of charge. When such material is lacking no charge can be framed under Section 13(1)(d) of the Prevention of Corruption Act, 1988. The next charge against the petitioner is under Section 420 I.P.C. read with Section 120-B.I.P.C. To prove criminal conspiracy punishable under Section 120-B.I.P.C., there must be an agreement between two or more persons to do or caused to be done (i) an illegal act or (ii) an act which is not illegal by illegal means. Section 10 of the Indian Evidence Act deals with things said or done by conspirator in reference to common design. There must be a reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong. In Shivanarayan Laxminarayan Joshi v. State of Maharashtra, AIR 1980 SC 439 : (1980 Cri LJ 388), it was held (Para 14) - "It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can only be proved largely from the inferences drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design." To prove the said offence, there must be evidence to show that two or more persons have agreed to do or caused to be done an illegal act or an act which is not illegal by illegal means and therefore, first of all, we must see whether the accused did any illegal act and whether there is a prima facie case against the accused to frame charge for such illegal act or an act which is not illegal by illegal means. The other offences shown in the charge are already dealt with. The only offence which has to be considered is under Section 420 I.P.C. Section 420 I.P.C. is the offence alleged to have been committed by the accused in pursuance of the conspiracy. Section 415 I.P.C. defines cheating. The main ingredients of the said offence are :- (i) deception of any person; (ii) fraudulent or dishonest entrustment to delivery any property; (iii) to cause wrongful loss to that person to have wrongful gain either to himself or to any other person. Section 415 I.P.C. defines cheating. The main ingredients of the said offence are :- (i) deception of any person; (ii) fraudulent or dishonest entrustment to delivery any property; (iii) to cause wrongful loss to that person to have wrongful gain either to himself or to any other person. Learned senior counsel has argued that the case of the prosecution is that the petitioner by showing undervaluation for the property, has paid registration fees much lesser to the actual fee to be paid. Sections 43 and 47(a) of the Indian Stamps Act are relevant provisions to prosecute the offender. Learned counsel for the petitioner has relied on a decision in Lawrance Rt. Rev. Mar. Ephaream v. State of Tamil Nadu (1997) 2 C.T.C. 193 ) wherein it was held that the authority for registration or the Collector has got power to collect the additional payment of stamp duty within two years from the date of registration. For collecting the fees required, the charge against the accused for an offence under Section 420 I.P.C. is not maintainable. This charge should also to be decided along with the facts which we have shown supra while dealing with the charge under Section 409 I.P.C. It was an auction sale and whether the accused has deceived TANSI and fraudulently or dishonestly induced the said company to deliver the property is a matter which is in dispute. To frame a charge under Section 420 I.P.C. there must be a legal presumption to say that the petitioner had deceived the said company and fraudulently and dishonestly induced the said company to deliver the said properties in the name of the firms. As already stated since the property was sold in public auction and the registration fees was paid, no independent charge for an offence under Section 420 I.P.C. can be made out and the charge is depending upon the other charges. The fact of the case is such that if there is material to frame the charge under any one of the Sections, there will be materials for framing the charges for other offences though they are different and distinct. The fact of the case is such that if there is material to frame the charge under any one of the Sections, there will be materials for framing the charges for other offences though they are different and distinct. In the circumstances of the case, the very question of deception, fraudulent and dishonestly inducing delivery of property cannot arise and in fact there is no such material to presume that the accused has committed an offence punishable under Section 420 I.P.C. Learned senior counsel for the Public Prosecutor has argued that the Special Judge has found sufficient materials and therefore, has framed charges against the accused and the same need not be interfered with at this stage, since there are materials to presume that the accused has committed the offence. As already stated, the law is well settled that the trial Court at the time of framing of charge upon considering police report and the documents sent with it under Section 173 Cr. P.C. and making such examination, if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, considers the charge against the accused to be groundless, it can discharge the accused and on the contrary; if the Court is of opinion that there is ground for presuming that the accused has committed the offence to be tried and adequately punished by the said Court, charge can be framed against the accused. Therefore, if there are sufficient grounds for presuming that the accused has committed an offence, charge can be framed. Even for presuming so, there must be some ground and if the offence shown in the charge, sheet to be groundless, the Court can discharge the accused. As stated supra, in the case of Ramesh Singh, (1977 Cri LJ 1606), Their Lordships have expressed the view that at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed the offence, there exists a prima facie case to proceed with the trial. In Som Nath Thapa's case (1996 Cri LJ 2448), it was held that when there was ground for presuming that the accused has committed the offence, the Court can justifiably frame charge against him for committing that offence. In Som Nath Thapa's case (1996 Cri LJ 2448), it was held that when there was ground for presuming that the accused has committed the offence, the Court can justifiably frame charge against him for committing that offence. In Century Spinning and Manufacturing Company's case (1972 Cri LJ 329), their Lordships have held that to find out the 'ground' that the accused has committed the offence, as the order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame charge without adverting to the material on the record by blindly adopting the decision of the prosecution. In Muniswamy's case (1977 Cri LJ 1125) (stated supra). Their Lordships have held that the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if rebutted, in such on the basis of which conviction can be said reasonably to be possible. In Satish Mehra's case (1996 (7) JT (SC) 6) lays down that the Court has got power to consider even materials which the accused himself produced at the stage contemplated under Section 227 of the Code (in Sessions cases). Therefore, framing of charge is not an empty formality to be observed by the Court and in order to safeguard the person's liberty, unless there are grounds to presume prima facie case against the accused, no charge can be framed and he is entitled for discharge. Bearing this view in mind when the case against the petitioner herein is considered, it is clear that there is no "ground" to frame any charge against the petitioner and as such, the charge framed against her by the trial Court has to be set aside and she has to be discharged. In the result, Crl. R.C. No. 406 of 1998 is allowed and the petitioner/accused is discharged under Section 239 Cr. P.C. Crl. R.C. No. 606 of 1999 is allowed and the charges framed against the petitioner/accused in C.C. No. 4 of 1997 are set aside. In view of the order passed in the above two petitioners, Crl. R.C. No. 929 of 1999 is dismissed as unnecessary. Crl. R.C. No. 930 of 1999 is allowed and the charges framed against the petitioner/accused in C.C. No. 13 of 1997 are set aside and the petitioner is discharged under Section 239 Cr. P.C. Order accordingly.