Justice in Jiffy: Madras High Court’s late night justice.

During the 2006-2011 DMK regime, though the Tamil Nadu police force was formally headed by K.P.Jain followed by Letikha Saran it was Jaffer Sait, who unofficially called the shots, till the election results of 2011. Jaffer Sait acted as a King and behaved like an emperor in his capacity as intelligence chief.  Jaffer remained as the eyes and ears of the former chief minister Karunanidhi. His ambition was to become head of state police force even when he was IG. It is evident from an audio tape published by senior counsel Prasanth Bushan in 2014.  Mr.Jaffar could be found requesting DMK leader Ms.Kanimozhi that if DMK returns to power again, he should be made as DGP.

Fortunately or unfortunately, ADMK came to power in 2011 and one of the first thing late ADMK Chief J.Jayalalithaa did was shunting off Mr.Jaffar Sait as Special Officer of Special Refugees camp for Sri Lankan Refugees at Mandapam, Ramanathapuram on 19 May 2011.  Jaffar, was one of the very few officers, who was posted to Mandapam till date.

Till Jaffar Sait was at the helm of intelligence, those who chose to rub Jaffer Sait on the wrong side were not only cut down to size, but also decimated. A mere mention of the name of Jaffer alone sent shivers down the spine of many officers within the department.   Only a few chose to take on Jaffer and those who chose to take him head-on were shown the true meaning of hell.

Jaffar Sait, using his closeness to the then CM Karunanidhi, misused the Government discretionary quota in the Tamil Nadu Housing Board and obtained a prime housing plot, (Plot No.540, measuring 4756 sq. ft) at Thiruvanmiyur then valued at 1.25 crores in the name of his daughter Ms.Jeniffer, under the category “social worker”.   Jeniffer was medical college student at the time of allotment, and being a student she was able to pay the entire cost of the plot. When questions were raised as to how a student could come up with 1.25 crores, Jaffar suddenly surrendered the plot through her daughter in letter dated 30.04.2009. It is pertinent to note that Jeniffer who paid the last installment of Rs.60 lakhs on 30 March 2009 to TNHB, addressed the TNHB on 30 April 2009 that she doesn’t have the financial resources and hence surrendering the plot.

Within a month, in G.O. 2D No. 143 Housing and Urban Development Department dated 05.06.2009, the same plot (Plot No.540) was again allotted to Ms.Parveen Jaffer, wife of Jaffar Sait. In the applications submitted by both Ms.Jeniffer and Ms.Parveen Jaffer, no documentary evidence to support was submitted at the time of application for allotment of housing plot that they were “social workers”.

Even before the title deed of the said housing plot could be registered in favour of the allottee Ms.Parveen Jaffar, Jaffar Sait, entered with an agreement with a realtor ‘Land Mark’ constructions and made a profit of more than a crore. The sequence of events clearly proves criminal conspiracy, corruption and criminal misconduct.

A complaint was filed with the Directorate of Vigilance and Anti Corruption and a case in Cr. No. 7/AC/2011/CSU.1 was registered and investigation taken up. Apart from this case, 2 other cases in Cr. No. 3/12/AC/CC.I  and  Cr. No. 5/12/AC/CC.I were taken up against Jaffar Sait for colluding with one Mr.Pandian and Mr.Vinothagan, Personal Security Officers of the then CM Karunanidhi.

On completion of investigation in Cr. No. 7/AC/2011/CSU.1, sanction for prosecution was sought from Ministry of Home Affairs, as Jaffar Sait is an All India Officer on 3 August 2012.  The DVAC sent several reminders to the MHA and the Investigating Officer S.Subbiah, Addl SP twice visited the MHA and briefed the officials.  But even after a lapse of a year, no sanction was accorded.

At this juncture, opinion was sought from the then Advocate General A.L.Somayaji.  The learned Advocate General quoted verdicts of Apex Court and High Court. He quoted the guidelines stipulated in the Vineet Narain& Others vs Union of India wherein it was held as follows :

“Time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office.”

The same instructions were reiterated in another judgment of the Supreme Court wherein it was held as below:

“We deem it proper to observe that in future every Competent Authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain v. Union of India(1998) 1 SCC 226 and the guidelines framed by the CVC.”

The High Court of Assam in a batch of 51 petitions, Shubamoy Gupta Vs State of Assam, reiterated the above verdicts of the Apex court and also read down the sanction clause in the Prevention of Corruption Act, 1988 as follows:

“86. It is true that Section 19 of the P.C. Act has not laid down any time limit for prosecution sanction. There is also no deeming clause. However, as noted above in absence of any statutory provision, the provision made by the Apex Court in its decisions referred to above will have to be strictly adhered to. Non-adherence of the time limit coupled with the duty of the court to uphold Rule of Law may require the court to step in to remove the injustice resulted due to the inaction on the part of the legislature and where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligation under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislature to cover the field.

89. While it is true that the previous sanction for taking cognizance of an offence prescribed under Section 10, 11, 13 and 15 of the P.C. Act alleged to have been committed by public servant has been provided for, for the purpose of protection of such public servants from vexatious and frivolous proceeding, but the same cannot be made use of as a shield to protect the public servants against whom a prima facie offence is established. In the instant proceeding we have seen that prosecution sanction has not been accorded even for long 11 years in some cases. While materials available on record disclose a prima facie case for prosecution, competent authority cannot sit over the matter indefinitely and must adhere to the time limit fixed in Vineet Narain (supra) and reiterated in Subramanian Swamy (supra).”

Based on these verdicts, the Advocate General gave an opinion that charge sheet can be filed without waiting for sanction as there is inordinate delay on the part of the MHA without any valid reasons.

On 20 October 2013, the DVAC filed a charge sheet against (1) Jaffar Sait, (2) Parveen Jaffar, (3) Murugaiya, Executive Officer, TNHB, (4) K.Rajamanickam, IAS, then Secretary to CM, (5) Durga Shankar, S/o Rajamanickam (6) I.Periyasamy, former Housing Minister and (7) T.Udhayakumar, Proprietor of Land Mark Constructions.   The Special Court took cognisance and assigned number as C.C. No. 25/2013 and issued summons to all the accused directing them to appear on 28^th October 2013.

At this juncture, Jaffar Sait and his wife Parveen Jaffar and others, approached the Madras High Court in WP 28798  to 28801 of 2013 and WP 29133 of 2013 sought a stay of the summons issued to them by the Special Court.  Madras HC on 28.10.2013 directed the Special Court to adjourn the proceedings in C.C.No. 25/2013, without insisting on personal appearance of the petitioners. The said order continues till date. The above writ petitions are pending till date.

Subsequently, the Ministry of Home Affairs vide letter No. 26011/33/201-IPS-II dated 29.11.2013 declined to accord sanction to prosecute Jaffar Sait.

On 10.12.2015, Jaffar Sait filed a Criminal Original Petition in Crl. OP 619 of 2016 praying to quash the DVAC’s charge sheet against him in the Madras High Court. No interim order was granted. The DVAC filed a detailed counter strongly objecting to the quashing of the charge sheet against Jaffar Sait.  This Crl. OP 619 of 2016 was pending till 23.5.2019.

The late night drama

Tamil Nadu’s incumbent DGP TK.Rajendran’s extended tenure expires on 30 June 2019 and the government has to appoint a new DGP / Head of Police Force in his place. As per the various guidelines issued by the Supreme Court in the Prakash Singh’s case, the new DGP to be appointed should be selected from a panel of 3 officers recommended by the UPSC and Ministry of Home Affairs. The state government has to send a list of at least 5 officers out of 3 will be selected.  SC stated in its guidelines that “recommendation for appointment to the post of DGP UPSC should be purely on basis of merit from officers who have a minimum residual tenure of six months”

After Edappadi Palanisamy took over as CM of Tamil Nadu fortunes for Jaffar Sait started sky rocketing to the surprise of many. While officers up to 1992 batch have been promoted as Addl DGPs, Promod Kumar IPS of 1989 batch has been held up by the TN government citing a pending disciplinary proceedings. But this government promoted Jaffar Sait IPS as DGP on 20 January 2019 and posted as DGP Training, even though corruption criminal case was pending against Jaffar. His fortunes further rose when he was posted as DGP of Crime Branch CID in March this year.

Now the government of Tamil Nadu has sent the names of six officers including Jaffar Sait. But as per the guidelines of the Supreme Court, Jaffar Sait would be rendered ineligible for appointment as Head of TN Police Force as he has the pending corruption case and history of disciplinary proceeding & suspension from service.

At this juncture there were surprising developments last week.

The Madras High Court is now on vacation from 1^st of May to 31^st May. There are four vacation sittings. Only very urgent criminal matters alone would be taken up during vacation sittings. Except bail and anticipatory bail cases, no other criminal matters would be normally taken up. The normal procedure is filings would be taken up on Monday and Tuesday of every week during vacation with the permission of vacation officer. The procedure is a letter should be given to the Assistant Registrar (vacation officer) explaining the urgency and then he will permit to number the petition.

Without resorting to vacation filing, on 22^nd May 2019 (Wednesday), senior counsel I.Subramaniam, on behalf of Jaffar sait, directly mentioned before Justice Rajamanickam, who was handling criminal matters for that week that an urgent quash petition needs to be taken up.  The justice permitted listing and on next day, i.e., 23^rd May 2019, the petition Crl OP 13711 of 2019 for quash of charge sheet by Jaffar Sait was numbered and listed as Item No. 29 in the third list.

It is surprising that when another Crl OP 619/2016, filed and pending for the same relief, how this Crl OP 13711 of 2019 again numbered. That too without arraying the defacto- complaint as respondent, how the petition for quash was accepted and numbered. What is the urgency cited now?

When Miscellaneous Petitions are filed along with main petitions with a prayer to dispense with the production of original orders / charge sheets, etc., only after the court orders dispense with, allowing Misc. petition, the main petition would be numbered. But in Jaffar Sait’s case, both the misc. petition for dispensing and main petition were numbered and listed in the vacation list for 23 May 2019 as Crl OP 13711 of 2019. It is to be noted that for the same relief already a quash petition was pending in Crl OP 619/2016.

A source who was present in the Court on 23^rd May said that Hon’ble Justice Rajamanickam could not complete the 1^st list till 7.30 pm in the evening. At that juncture Justice Rajamanickam told the advocates who were present that the 3^rd list could not be taken up and those whose matters are urgent can mention their matter.

Justice Rajamanickam

At 7.30 Senior Counsel and former state Public Prosecutor I.Subramaniam rose and mentioned the above Crl OP 13711 of 2019 and the Judge permitted him to argue. Mr.I.Subramaniam informed the court that DGP panel for Tamil Nadu is about to be drawn and his client Jaffar Sait would suffer if the charge sheet against him is not quashed.

Surprisingly, one of Tamil Nadu’s Additional Advocate General S.R.Rajagopal was present in the court and told the court that he is representing DVAC.  When Justice Rajamanickam queried Rajagopal on what is his stand, he immediately said “the learned senior counsel’s(I.Subramaniam) demand is very fair and I concede”.  This literally means, whatever I.Subramaniam wants can be allowed by the Court.

It is pertinent to mention here that senior I.Subramaniam should not have agreed to argue on behalf of Jaffar Sait. I.Subramaniam was appointed as TN’s Public Prosecutor by Jayalalitha on 6^th June 2011. He continued in the post till 8 June 2012.  When I.Subramaniam was the Public Prosecutor, the I.O. in Jaffar Sait’s case Addl SP S.Subbiah, consulted I.Subramaniam with all connected records and received instructions about the conduct of investigation against Jaffer sait. Especially whether to add the then Housing Minister I.Periyasamy as an accused in the case or not.

Every Court in the Madras High Court has government advocate attached to the court.  Since matters which comes up for admission or adjourned admission may not be decided on the same day, the government advocates present would take notice on behalf of the government and file a reply or argue later. In matters of importance, Additional Advocate Generals or Advocate General of Public Prosecutor would be engaged by the concerned government departments. The special engagement of AAGs or AG is precisely to defend the government vociferously and to impress upon the court that the department is attaching utmost important to the matter.

But AAG S.R.Rajagopal’s repeated assertion before Justice Rajamanickam’s Court that “I concede and the plea of the accused may be allowed” creates doubt in one’s mind whether he was present at 8 pm in the court precisely to collude with Jaffar Sait and his counsel I.Subramaniam.

Addl AG SR Rajagopal in the left and AG Vijay Narayanan in the right. Vijay Narayanan was a former counsel for Jaffar Sait

After these farcical arguments lasted for about 10 minutes, Justice Rajamanickam started dictating the order that he is quashing the charge sheet.  At this juncture again senior counsel I.Subramaniam rose and said “My lord there is another request”. When the Judge looked up, I.Subramaniam said, there is another Crl OP 619/2016 pending before this court for same plea and that he would like to withdraw the same. The Judge looked puzzled add the source present in the court.   It was almost 8 pm. The registry officials would have left for home by 5.30 pm.   However, he called for the bundle. Surprisingly within a few minutes, Jaffar’s pending petition Crl. OP 619/2016 on the same plea was brought to the court. Mr.I.Subramaniam filed a memo that he is withdrawing. Then the Judge dismissed the Crl OP 619/2016 as withdrawn. Further the present Crl OP 13711 of 2019 was ordered to be allowed.

The Hon’ble Chief Justice of the Madras High Court, has issued a circular that when a matter is being heard by a Judge and connected matters are pending before other Courts, only the Chief Justice should issue orders in this regard. The relevant portion of the circular is as follows :

“Whenever any Court is of the opinion that there are case(s) pending before other Court(s) similar to the case(s) in hand and it is necessary to tag matter(s) pertaining to other Court(s), with the case(s) which is listed before it, (or) any party mentions before the Court that there are matters before other Court(s) which is/are similar to the case(s) on the list of that Court and request for tagging, the Court shall direct the matters to be placed before the Hon’ble The Chief Justice for tagging the matters and for placing the same before appropriate Court.”

 As per the existing portfolio, Justice Jagadish Chandra is the concerned Judge to hear all Prevention of Corruption Act cases.  If at all Jaffar Sait wanted to withdraw Crl. O.P 619 of 2016, his counsel should have made the plea before Hon’ble Justice Jagadish Chandra and not before Justice Rajamanickam.

The order of Justice Rajamanickam in calling for the Crl. OP of the year 2016 by mentioning out of turn even for allowing withdrawal is a clear violation of the circular of Hon’ble Chief Justice of Madras High Court.

Apart from the above, there is another grave question that looms large. Whenever there is plea for quashing a criminal proceeding invariably the de-facto complainant in the criminal proceeding should be made a party to the proceeding. If the defacto-complainant in a case is not made as a respondent, the Registry of the Madras High Court will not number the case. How the officials in the Registry of Madras HC, allowed the quash petition of Jaffar Sait to be numbered without arraying the defacto-complaint, that too in a vacation court remains a mystery. And how Hon’ble Justice Rajamanickam failed to raise a pertinent question in this regard too is mystifying.

Though the order was pronounced on 23 May 2019 at 8.30 pm, surprisingly till this moment, (28,05.2019 15.00 hrs)  the copy of the order is not uploaded / released in the website.  Curiously, orders of other matters listed on 23 May before Justice Rajamanickam, have been updated.

The Hon’ble Madras High Court in its wisdom has burnt the midnight oil and gave huge relief to an officer who stands accused in 3 criminal cases so as to enable him to become the head of Tamil Nadu police force. But will the court provide justice with the same swiftness to the common people who languish in court corridors for years together ?