S.P. VELUMANIversusARAPPOR IYAKKAM AND ORS.

                       [2022] 7 S.C.R. 1067                          1067


                         S.P. VELUMANI                               A
                                 v.
                ARAPPOR IYAKKAM AND ORS.
                 (Criminal Appeal No. 867 of 2022)
                           MAY 20, 2022
                                                                     B
       [N. V. RAMANA, CJI, KRISHNA MURARI AND
                       HIMA KOHLI, JJ.]
       Investigation: Preliminary enquiry report of Superintendent
of Police – Non-disclosure of – On facts, in a corruption case
against the appellant-Cabinet Minister, the High Court ordered
a preliminary enquiry by a Superintendent of Police, Directorate     C
of Vigilance and Anti-Corruption and who in turn submitted a
final report – High Court obtained the report, however, without
furnishing a copy thereof to the appellant, unceremoniously
closed the writ petition – Held: When the State has not pleaded
any specific privilege which bars disclosure of material utilized    D
in the earlier preliminary investigation, there is no good reason
for the High Court to have permitted the report to have remained
shrouded in a sealed cover – It was the High Court which had
ordered that a preliminary enquiry be conducted and a report be
submitted by the special investigating officer – However, once
the enquiry was completed, the High Court failed to even peruse      E
the said report – Rather, the High Court left the decision
completely in the hands of the State Government – Such an
approach, cannot be countenanced in law– When the State
Government changed its stand that now they intended to conduct
further investigation in the matter, the High Court neither          F
provided the appellant an opportunity to defend himself, nor
sought a reasoned justification from the State for having turned
turtle – Principles of natural justice demanded that the appellant
be afforded an opportunity to defend his case based on the
material that had exonerated him initially, which was originally
accepted by the State – Thus, the High Court directed to supply      G
a copy of the report submitted by the Superintendent of Police
along with the other documents to the appellant and the Writ
Petition are restored on the file of the High Court – Prevention
of Corruption Act, 1988 – ss. 13(2) ,13(1)(c) and 13(1)(d) –
Penal Code – ss. 109, 120, 409 and 420 –                             H
                              1067
1068           SUPREME COURT REPORTS                      [2022] 7 S.C.R.


 A           Disposing of the appeal, the Court
            HELD: 1.1 The High Court has committed a patent error
       in not taking the matter to its logical conclusion. Without
       considering the material before it, and by merely relying on
       the submissions made by the State, the High Court made
 B     sweeping observations which are prejudicial to the appellant.
       It was the High Court which had ordered that a preliminary
       enquiry be conducted and a report be submitted by the special
       invest igat ing off icer. However, once t he enquiry w as
       completed, the High Court failed to even peruse the said
       report. Rather, the High Court left the decision completely in
 C     the hands of the State Government. Such an approach, as
       adopted by the High Court cannot be countenanced in law.
       [Para 20][1075-F-G]
             1.2. It is a settled principle that the State cannot blow
       hot and cold at the same time. When the State Government
 D     changed its stand, the High Court neither provided the
       appellant an opportunity to defend himself, nor sought a
       reasoned justification from the State for having turned turtle.
       Although the High Court directed the appellant to file a counter
       affidavit in the writ proceedings, the State hastened to register
 E     the said FIR on 09.08.2021. [Para 21][1075-H; 1076-A-B]
             1.3. The initial affidavit filed by the State was categorical
       that they did not intend to pursue action against the appellant.
       However the subsequent change of stand by the State clearly
       contradicts the expectation brought about by the initial
 F     affidavit. The principles of natural justice demanded that the
       appellant be afforded an opportunity to defend his case based
       on the material that had exonerated him initially, which was
       originally accepted by the State. [Para 22][1076-B-C]
             1.4. The State has contended that the accused would be
 G     entitled to access the report only after the Magistrate takes
       cognizance in terms of Section 207 of the CrPC and any
       production of the documents beyond the ambit of aforesaid
       section, is untenable in law. The contention of the State may
       be appropriate under normal circumstances wherein the

 H
    S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS.                       1069


accused is entitled to all the documents relied upon by the         A
prosecution after the Magistrate takes cognizance in terms of
Section 207 of CrPC. It is held that the mandate of Section
207 of CrPC cannot be read as a provision etched in stone to
cause serious violation of the rights of the appellant-accused
as well as to the principles of natural justice. [Paras 24,
                                                                    B
26][1076-D-H; 1077-A]
     In Re: Criminal Trials Guidelines Regarding
     Inadequacies and Deficiencies v. State of Andhra
     Pradesh & Others (2021) 10 SCC 598 –
     Distinguished.
                                                                    C
      1.5. It must be emphasized that prosecution by the State
ought to be carried out in a manner consistent with the right
to fair trial, as enshrined under Article 21 of the Constitution.
[Para 27][1077-A-B]
      1.6 When the State has not pleaded any specific privilege     D
which bars disclosure of material utilized in the earlier
preliminary investigation, there is no good reason for the High
Court to have permitted the report to have remained shrouded
in a sealed cover. [Para 28][1077-B-C]
      1.7. Taking into consideration the peculiar facts of the      E
instant case, particularly the fact that the High Court had
ordered an enquiry and obtained a report without furnishing a
copy thereof to the appellant and unceremoniously closed the
writ petition, the following directions are issued: that the High
Court is directed to supply a copy of the report submitted by
the Superintendent of Police along with the other documents         F
to the appellant herein ; that the Writ Petition No. 34845 of
2018 and Crl.O.P. No. 23428 of 2018 are restored on the file
of the High Court of Madras ; and that the High Court is
direct ed t o dispose of the cases on their own merit,
uninfluenced by any observation made. [Para 29][1077-C-E]           G
                     Case Law Reference
(2021) 10 SCC 598            distinguished           Para 26
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.867 of 2022.
                                                                    H
1070            SUPREME COURT REPORTS                           [2022] 7 S.C.R.


 A           From the Judgment and Order dated 08.11.2021 of the High Court
       of Judicature at Madras in Writ Petition No.34845 of 2018.
             Mukul Rohatgi, Sr. Adv., Gaurav Agrawal, Advs. for the Appellant.
             Ranjit Kumar, V. Krishnamurthy, Sr. Advs., Gautam Narayan, Ms.
       Asmita Singh, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit
 B     Dwivedi, Sanjeev Kumar Mahara, Ms. Jessica Bhardwaj, Kshitij Mittal,
       D. Kumanan, Sheikh F. Kalia, Ms. Ruchi Krishna Chauhan, Advs. for
       the Respondents.
             The Judgment of the Court was delivered by
 C           N. V. RAMANA, CJI
             1. Leave granted.
             2. This appeal is filed against the impugned order dated 08.11.2021
       passed by the High Court of Madras in Writ Petition No. 34845 of 2018.

 D            3. The brief facts necessary for adjudication of this dispute are as
       follows: the appellant was a Cabinet Minister in the State of Tamil Nadu
       from 2014. On 11.09.2018, one Mr. R.S. Bharathi filed a complaint with
       the Directorate of Vigilance and Anti-Corruption. He also filed a criminal
       petition before the Madras High Court, being Crl.O.P. No. 23428 of
       2018. On the very next day, respondent No.1 filed a complaint before
 E     Director, Directorate of Vigilance and Anti-Corruption and SP, Anti-
       Corruption Bureau, CBI. As no action was forthcoming by the aforesaid
       Authorities, respondent No.1 filed a writ petition registered as WP No.
       34845 of 2018 before the High Court seeking, inter alia, a mandamus
       directing the Director, Directorate of Vigilance and Anti-Corruption to
 F     register an FIR on the basis of the complaint lodged by him and to
       constitute an SIT for the purpose of investigation. It may be necessary
       to note that both, the writ petition and Crl.O.P., were tagged and heard
       together.
              4. Broadly, the allegation against the appellant is that while he
 G     was serving as a Minister, he is alleged to have misused his powers to
       influence the tender process and ensured that tenders were awarded to
       his close aides.
             5. When the aforesaid writ petition was listed for the first time
       before the High Court, the High Court issued notice and directed the
       respondents therein to file their counter affidavits. On 18.10.2019, when
 H
      S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS.                                1071
                  [N. V. RAMANA, CJI]

the aforesaid writ petition came up for hearing, the High Court passed         A
following order: -
      “13. In the light of the apprehension expressed by the learned
      counsel for the petitioner that the 4th respondent is one of the
      senior Ministers in the Cabinet and the investigation is being carried
      by an Officer who is in the rank of the Deputy Superintendent of         B
      Police, this Court is of the considered view that the preliminary
      enquiry hereinafter shall be carried on by Ms. Ponni, IPS,
      Superintendent of Police, Directorate of Vigilance and Anti-
      Corruption and the progress being made in the preliminary enquiry,
      shall be monitored by the Director of Vigilance and Anti-Corruption.
                                                                               C
      14. The Director of Vigilance and Anti-Corruption shall file the
      Status Report as to the progress being made in the preliminary
      enquiry, with supporting documents in sealed cover for perusal of
      this Court.”
       6. Accordingly, on 01.11.2019, a status report was produced before      D
the High Court. On perusal of the aforesaid report, the High Court granted
time to complete the preliminary enquiry.
      7. On 16.12.2019, the Investigating Officer appointed by the High
Court completed the preliminary enquiry and submitted a final report to
the Director of Vigilance and Anti-Corruption. In view of this, the High       E
Court directed the Director of Vigilance and Anti-Corruption to produce
the aforesaid enquiry report in a sealed cover before the next date of
hearing.
       8. It is important to note that in the meanwhile on 17.02.2020, the
State Government filed an application being W.M.P. No. 4747 of 2020 in         F
W.P. No. 34845 of 2018, before the High Court indicating as under: -
      “9. It is submitted that these facts are being brought on record
      and it is the submission of the petitioner herein that after following
      all the process contemplated by Law, the Government of Tamil
      Nadu decided to accept the report on the Preliminary Enquiry,
                                                                               G
      which had come to the conclusion that the commission of
      cognizable offence had not been made out.
      xxx
      In the light of the above, it is prayed that this Hon’ble Court may
      be pleased to take the above facts on record and dispose of the          H
1072            SUPREME COURT REPORTS                            [2022] 7 S.C.R.


 A           writ petition as having become infructuous and pass such other
             order/orders as this Hon’ble Court may deem fit and proper in the
             circumstances of the case and thus render justice.”
              9. Accordingly, on 19.02.2020, the High Court passed the following
       order in the captioned application filed by the State Government: -
 B           “3. In the light of the said development, the petitioner/2nd respondent
             in the writ petition prays for appropriate orders for disposing of
             the writ petition as having become infructuous.
             4. Dr. V. Suresh learned counsel appearing for the 1st respondent/
             writ petitioner prays for time to file the counter affidavit.
 C
             5. The decision taken by the Vigilance Commission accepted by
             the Government shall be submitted before this court in a sealed
             cover.”
             10. As the matter stood thus, there was a change in the political
 D     dispensation of the State Government. Interestingly, the State, while
       relying upon a CAG report, subsequently recanted from its earlier stand.
       The High Court, without applying its mind, passed the following order on
       19.07.2021: -
             “3. It is submitted on behalf of the State that the performance of
 E           the contractors and the contracts in general engaged the attention
             of the Comptroller and Auditor General and adverse comments
             have been made. The State says that it will investigate into the
             matter to ensure that those involved are taken to task. For the
             purpose of conducting investigation, the State seeks some time.

 F           4. Let the matter appear in the second week of October, 2021.
             The State should spare no effort in getting to the bottom of the
             matter and proceed against those found to be responsible for the
             irregularities.
             5. Counter-affidavit may be filed by the respondents in the
 G           meantime.”
             11. Relying on the aforesaid observations, the State registered an
       FIR, being FIR No.16/2021 dated 09.08.2021, against 17 accused persons,
       including the appellant herein under Section 120B r/w Sections 420 and
       409 of the IPC and Section 13(2) r/w Sections 13(1)(c) and 13(1)(d) of
       the Prevention of Corruption Act, 1988 r/w Section 109 of the IPC.
 H
      S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS.                               1073
                  [N. V. RAMANA, CJI]

      12. The appellant herein filed an application being W.M.P. No.          A
24569 of 2021 in the writ petition pending before the High Court, seeking
a copy of the preliminary Enquiry Report dated 18.12.2019 and associated
documents submitted by Ms. R. Ponni, Superintendent of Police,
Directorate of Vigilance and Anti-Corruption as well as the decision
taken by the Vigilance Commission.
                                                                              B
      13. The High Court vide impugned order dated 08.11.2021, while
dismissing the appellant’s application, disposed of the entire case and
observed as under: -
      “6. It may do well to decline the request made by the fourth
      respondent in W.P. No.34845 of 2018 to make over a copy of the          C
      preliminary report to the fourth respondent immediately. The law
      has to be allowed to take its own course. Upon completion of the
      investigation, a report will no doubt be filed and such report should
      be filed within the next ten weeks, be it in the form of a charge-
      sheet or as a final report. In course of the material being made        D
      over to the fourth respondent under Section 207 of the Code of
      Criminal Procedure, 1973, if the preliminary report forms the basis
      for any of the charges sought to be framed, a copy of such
      preliminary report may be made over to the fourth respondent
      and it will also be open to the relevant criminal court to consider
      whether the petitioner may also obtain a copy thereof.                  E

      7. It is made clear that the observations in course of the orders
      should not count against the fourth respondent if, ultimately any
      charge-sheet were to be filed against him or any charges framed.
      In view of the fact that the investigation has almost come to an
      end and since the charge-sheet or final report is to be filed within    F
      the next ten weeks, no useful purpose would be served in keeping
      these petitions alive.
      8. Accordingly, W.P. No.34845 of 2018 and Crl.O.P. No.23428 of
      2018 are closed. Consequently, W.M.P. Nos.4747 of 2020 and
      24569 of 2021 are closed.”                                              G

       14. Aggrieved by the aforesaid order, the appellant has filed the
present appeal by way of Special Leave. It may not be out of place to
note that the appellant has also filed Crl.M.P.No.56512/2022 before this
Court seeking quashing of the aforesaid FIR.
                                                                              H
1074                SUPREME COURT REPORTS                          [2022] 7 S.C.R.


 A           15. The learned Senior Counsel appearing for the appellant
       contended orally and through written submissions as under: -
             (i)      That there is no reason for not making over the documents
                      to the appellant as the State has not claimed that the
                      documents are privileged.
 B           (ii)     The reliance on two reports by the Comptroller and Auditor
                      General of India (hereinafter “CAG”) by the State of Tamil
                      Nadu is misplaced as there is no criminality disclosed in the
                      aforesaid report.
             (iii)    That FIRs cannot be lodged solely on basis of the CAG
 C                    report.
             (iv)     The appellant should have been given an opportunity to
                      counter the allegations, and the State could not have
                      registered the FIR in a haste, based on certain general
                      observations by the High Court.
 D
             (v)      This case is a clear case of regime revenge wherein change
                      in political dispensation has resulted in the State recanting
                      its initial position to abuse the process against the appellant
                      herein.

 E           16. On the contrary, the learned Senior Counsel appearing on
       behalf of the State of Tamil Nadu has contended that: -
             (i)      There is no provision of law which mandates disclosure of
                      preliminary Enquiry Report before the stage contemplated
                      under Section 207 of the Cr.P.C. However, the accused
 F                    will be given the relied upon documents at the time of
                      framing charges, wherein he can take appropriate legal
                      recourse.
             (ii)     The FIR was filed based on a fresh enquiry conducted in
                      the light of the CAG report and not solely based on the
 G                    preliminary Enquiry Report filed in the aforesaid writ
                      petition.
             17. At the outset, it may be noted that an application was filed
       before us seeking quashing of the subsequent FIR. However, the learned
       Senior Counsel appearing on behalf of the appellant has not pressed the
       same before us. He has limited his submissions only to the aspect
 H
      S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS.                                1075
                  [N. V. RAMANA, CJI]

concerning non-disclosure of the preliminary enquiry report of Ms. Ponni,      A
IPS, Superintendent of Police, Directorate of Vigilance and Anti-
Corruption and the ancillary documents. Accordingly, we intend to deal
with this aspect alone.
       18. Having heard learned counsel for the parties and on perusing
the documents available on record, we may note that the facts of this          B
case are clear. Initially, a private complaint was filed by respondent No.1
and thereafter, a writ petition was filed by him seeking investigation into
the allegations made in the complaint. When the matter was taken up by
the High Court, it directed an enquiry by a responsible officer, Ms. Ponni,
Superintendent of Police, Director of Vigilance and Anti-Corruption.
                                                                               C
Accordingly, the Court appointed officer submitted her preliminary
enquiry report to the Director of Vigilance and Anti-Corruption, who in
turn submitted a final report before the High Court in a sealed cover. In
the meanwhile, the Government took a decision to close the case based
on the aforesaid report submitted by the Court appointed officer. Rather
than deciding this issue, the High Court adjourned the matter by a month.      D
      19. However, it appears that due to various reasons, the matter
could not be listed until 19.07.21. In the meanwhile, the State Government
had changed. In a turn of events, the State Government went back on
their earlier stand to close the criminal case. Instead, the State
Government submitted before the High Court that they intended to               E
conduct further investigation in the aforesaid matter.
       20. In our considered opinion, the High Court has committed a
patent error in not taking the matter to its logical conclusion. Without
considering the material before it, and by merely relying on the
submissions made by the learned counsel for the State, the High Court          F
has made sweeping observations which are prejudicial to the appellant.
It was the High Court which had ordered that a preliminary enquiry be
conducted and a report be submitted by the special investigating officer.
However, once the enquiry was completed, the High Court failed to
even peruse the said report. Rather, the High Court left the decision
                                                                               G
completely in the hands of the State Government. Such an approach, as
adopted by the High Court in the present matter, cannot be countenanced
in law.
       21. It is a settled principle that the State cannot blow hot and cold
at the same time. When the State Government changed its stand, the
                                                                               H
1076             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


 A     High Court neither provided the appellant an opportunity to defend himself,
       nor sought a reasoned justification from the State for having turned turtle.
       Although the High Court directed the appellant to file a counter affidavit
       in the writ proceedings, the State hastened to register the aforesaid FIR
       on 09.08.2021.
 B           22. It is noteworthy that the initial affidavit filed by the State was
       categorical that they did not intend to pursue action against the appellant
       herein. However, the subsequent change of stand by the State clearly
       contradicts the expectation brought about by the initial affidavit. The
       principles of natural justice demanded that the appellant be afforded an
       opportunity to defend his case based on the material that had exonerated
 C     him initially, which was originally accepted by the State.
              23. Therefore, the only issue which requires this Court’s
       consideration is whether the appellant herein is entitled to the preliminary
       report in the present facts and circumstances.

 D           24. Learned counsel for the State has contended that the accused
       would be entitled to access the report only after the Magistrate takes
       cognizance in terms of Section 207 of the CrPC. He has relied on In
       Re: Criminal Trials Guidelines Regarding Inadequacies and
       Deficiencies v. State of Andhra Pradesh & Others, (2021) 10 SCC
       598 to contend that the accused is entitled to seek documents only in
 E     terms of Section 207 of the CrPC and any production of the documents
       beyond the ambit of aforesaid section, is untenable in law.
              25. On the other hand, the learned counsel for the appellant has
       distinguished the present case on the fact that the subsequent FIR was
       filed due to direct judicial interference.
 F
               26. We may note that the contention of the State may be
       appropriate under normal circumstances wherein the accused is entitled
       to all the documents relied upon by the prosecution after the Magistrate
       takes cognizance in terms of Section 207 of CrPC. However, this case
       is easily distinguishable on its facts. Initiation of the FIR in the present
 G     case stems from the writ proceedings before the High Court, wherein
       the State has opted to re-examine the issue in contradiction of their own
       affidavit and the preliminary report submitted earlier before the High
       Court stating that commission of cognizable offence had not been made
       out. It is in this background we hold that the mandate of Section 207 of
       CrPC cannot be read as a provision etched in stone to cause serious
 H
      S.P. VELUMANI v. ARAPPOR IYAKKAM AND ORS.                                    1077
                  [N. V. RAMANA, CJI]

violation of the rights of the appellant-accused as well as to the principles      A
of natural justice.
       27. Viewed from a different angle, it must be emphasized that
prosecution by the State ought to be carried out in a manner consistent
with the right to fair trial, as enshrined under Article 21 of the Constitution.
       28. When the State has not pleaded any specific privilege which             B
bars disclosure of material utilized in the earlier preliminary investigation,
there is no good reason for the High Court to have permitted the report
to have remained shrouded in a sealed cover.
       29. In view of the aforesaid discussion, and taking into consideration
the peculiar facts of the instant case, particularly the fact that the High        C
Court had ordered an enquiry and obtained a report without furnishing a
copy thereof to the appellant and unceremoniously closed the writ petition,
we deem it appropriate to issue the following directions: -
       a.     The High Court is directed to supply a copy of the report
              submitted by Ms. R. Ponni, Superintendent of Police along            D
              with the other documents to the appellant herein.
       b.     Writ Petition No. 34845 of 2018 and Crl.O.P. No. 23428 of
              2018 are restored on the file of the High Court of Madras.
       c.     The High Court is directed to dispose of the cases on their
                                                                                   E
              own merit, uninfluenced by any observation made herein.
       d.     Although the prayer for quashing of the FIR was not orally
              pressed before this Court, however, the appellant is granted
              liberty to seek appropriate remedy before the High Court.
      30. Accordingly, the appeal is disposed of on the above terms.               F
Pending application, if any, stands disposed of.

Nidhi Jain                                                      Appeal disposed.
(Assisted by : Tamana, LCRA)

                                                                                   G




                                                                                   H