HC reopens disproportionate wealth case against OPS, slams lower courts

The Madras high court on Thursday ordered issuing notice to deposed All Indi Anna Dravida Munnetra Kazhagam leader and former Tamil Nadu Chief Minister O Paneerselvam and his relatives on a criminal revision case initiated on its own, relating to their discharge in a disproportionate wealth case by a trial court in 2012.

The judge said, "This is a case where a political personage has maneuvered the DVAC, the state government and the court to ensure that the trial against him was derailed."

Invoking his powers under section 397 of the CrPC, Justice N Anand Venkatesh initiated on his own (suo motu) the criminal revision case.

The court directed Paneerselvam, his wife Vijayalakshmi (since deceased), his son Ravindranathkumar, his brothers O Raja and O Balamurugan and their wives to remain present before the court for hearing on September 27, 2023.

The court also ordered issuing notice to the state government, returnable by September 27.

The judge directed the registry to place a copy of his order before the chief justice of Madras high court for information.

The case of the prosecution -- Directorate of Vigilance and Anti-Corruption (DVAC) -- was that Paneerselvam had amassed wealth in his name and in the names of his relatives, which was 374 percent times disproportionate to his known sources of income during his tenure as CM for four months and subsequently as revenue minister between the period 2001 and 2006.

Narrating the sequence of events and pointing out the flaws in the procedure followed by the prosecution and the trial court, the judge said it once again reveals a calculated attempt by those at the helm of political power to distort and subvert the course of criminal justice.

"To recapitulate, there are several disturbing features in this case. First, it is not known how a petition for further investigation under section 173 (8) CrPC was entertained by the special court at the behest of the accused. Secondly, the chief judicial magistrate, Theni, committed a manifest illegality in passing orders allowing the petition on October 4, 2011, knowing fully well that she had no jurisdiction to hear the case in view of G.O dated May 3, 2011 constituting the special court at Madurai. Thirdly, the DVAC, for obvious reasons, did not challenge the order directing further investigation since by 2011 Paneerselvam had spun back to power in the state," he said.

Further, the DVAC quickly acted on the "illegal order" of further investigation and prepared a report tailored to suit the political masters and also obtained an opinion from the public prosecutor and the advocate general and then presented it to the speaker.

The assembly speaker later passed an order giving no reason whatsoever claiming no offence had been disclosed against Paneerselvam and his family.

"The speaker, in other words, decided to bury the doctrine of separation of powers in the precincts of St Marys Church by playing the role of the special court sitting in the legislative chamber at Fort St George (the seat of power in TN)). Sixthly, the government "directs" the DVAC to file the report before the special court which states that the earlier final report had been wiped out," the judge added.

Later, the additional public prosecutor filed a petition and stated the cognisance taken on the original charge sheet had become infructuous. "And finally, the CJM, Sivagangai, accepts the petition for withdrawal and allows the accused to go scot-free."

"On account of the collective collaboration of the all the aforesaid political and judicial personages the one and only final report under section 173 (2) CrPC against Paneerselvam and his family, which took nearly three years to complete, with 272 witnesses statements 235 documents, was consigned to the dustbin of judicial history," the judge added.

The court said given these admitted facts the question that now arises is whether a prima facie case has been made out to issue notice to the accused to suo motu revise and set aside the order of the Sivaganga court.

"The court is not obvious of the fact that 10 years have rolled by since the order of the CJM, Sivaganga. The facts catalogued in para 25 are shocking and disturbing. They disclose a grave illegality at every stage which shows a well-orchestrated plan. This is a case where a political personage has maneuvered the DVAC, the state government and the court to ensure that the trial against him was derailed," the judge added.

It is a settled rule in criminal law that a mere delay is no ground to throw away a criminal case without any specific bar of limitation and citing an order of the Supreme Court, the judge said no rule of limitation can be put against the high court in exercising its suo motu powers of revision.          

"In view of the above discussion, this court finds that there are prima facie materials to exercise power under section 397 and 401 CrPC and Article 227 of the Constitution of India," the judge added and gave the above directives.

In his order, the judge observed that in two earlier cases, the court noticed a pattern of the DVAC launching prosecutions under the Prevention of Corruption Act (PCA) against (then) opposition MLAs, which later culminated in charge sheets before the special court, Srivilliputhur. 

Upon a change of government, the opposition MLAs found themselves in the saddle as cabinet ministers. Realising that the winds had changed direction, the DVAC quickly intimated the special court of their intention to conduct further investigation. Under the guise of further investigation, the conclusions arrived at in the earlier final report were then clinically wiped out under the guise of filing a "final closure report". 

These final closure reports were then presented to the special court as a fait accompli to secure the discharge of the accused, the judge added.

He was apparently referring to DMK ministers Thangam Thennarasu and KKSSR Ramachandran, against whom the court has initiated on its own, similar revision cases following their acquittal in a local court in wealth cases earlier.

The judge further observed that prima facie, this court found this to be a well-settled modus operandi to short-circuit corruption cases once the accused had come to political power in the state.

"As a judge in charge of MP/MLA cases in this state, this court has a constitutional duty to ensure that the streams of criminal justice are kept pure and unsullied," the judge added.

He further observed that when a political party comes to power in Tamil Nadu, the DVAC "swoops down" on the opposition and clamps cases of corruption.

However, no prosecution for corruption ends in five years which is the life span of an elected government in the state.

"Invariably, the opposition is voted back to power and the DVAC, like the puppets in The Muppets show, will have to perforce sing a different tune in tandem with its political masters," the judge added.