S.Sakthivel Vs The Inspector of Police

to call for the records pertaining to the Impugned order dated 24.03.2023 passed in Crl.M.P.No.126 of 2023 in C.C.No.1836 of 2022 on the file of the learned Judicial Magistrate Court No.IV, Madurai and to set aside the same.

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For Petitioner : Mr.A.Saravanan For Respondent : Mr.S.Ravi Additional Public Prosecutor

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https://www.mhc.tn.gov.in/judis

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Crl.R.C.(MD).No.382 of 2023 and Crl.O.P.(MD).Nos.22462 and 8206 of 2023

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Crl.O.P.(MD).No.8206 of 2023

S.Sakthivel

... Petitioner

Vs.

1.The Secretary to Government Union of India Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110 001.

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2.The Director, Central Bureau of Investigation, Plot No.5-B, CGO Complex, Lodhi Road, Near Jawaharlal Nehru Stadium, New Delhi.

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3.The Joint Director, Central Bureau of Investigation, Shasthri Bhavan, College Road, Nungambakkam, Chennai 600 006.

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4.The Joint Director, Central Bureau of Investigation (ACB), No.73 Athikulam Main Road, Palanisamy Nagar, Ramnad Reserve Line, Athikulam, Madurai 625 007

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5.The principal Secretary to Government, Home Department, State of Tamilnadu, Fort St.George, Secretariat, Chennai-600 009.

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6.The Additional Secretary to Government, Home (Police-IX) Department, State of Tamil Nadu, Fort St.George, Secretariat, Chennai-600 009.

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7.The Director General of Police, Police Head Quarters, Dr.Radhakrishnan Road, Mylapore, Chennai-600 004.

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8.The Commissioner of Police, Madurai City, Alagarkovil Road, Madurai.

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9.The Inspector of Police, Crime Branch CID, No.7, Kamarajar 1^st Street, Chinna Chokikulam, Near IOB, Madurai 625 002. Crime No.1 of 2019

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10.The Inspector of Police, Central Crime Branch, II Floor, Office of the Commissioner of Police, Madurai. (Crime No.646 of 2018)

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11.The Inspector of Police, SS Colony Police Station, Madurai City. Crime No.646 of 2018

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12.Joint Secretary and Head

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University Grants Commission (UGC) South Eastern Regional Office, A.P.State Financial corporation Building, 4^th Floor, 5-9-194, P.B.No.152 Chirag-Ali-Lane, Hyderabad. 13.Sathiyaseelan

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14.Stephenraj

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15.Edvin Vinoth Kumar

16.Amalraj

17.Balamurugan

18.Logeshkumar

19.Parthasarathi

20.Kumaravel

21.Murugan

22.Sivaji

23.Vetri

24.Sakthi

25.Sheik Abdulrazak (Sa Razak)

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26.Ramesh Alias Rajesj ... Respondents

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( R13 to R26 are impleaded as per order of the Court dated 08.06.2023 in Crl.M.P.(MD).No.7936 of 2023 in Crl.O.P.(MD).No.8206 of 2023)

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PRAYER: This Criminal Original Petition is filed under Section 482 of

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Crl.R.C.(MD).No.382 of 2023 and Crl.O.P.(MD).Nos.22462 and 8206 of 2023

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the Criminal

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Procedure Code,

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to call for th records with regard to the final report filed in C.C.No.1836 of 2022 on the file of the Judicial Magistrate Court No.IV, Madurai and to set aside the same and consequently issue a direction to transfer the investigation from the file of the 9^th respondent to the file of the 4^th respondent and to conduct further investigation and to file a final report afresh.

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For Petitioner : Mr.A.Saravanan

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For Respondent : Mr.S.Ravi

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Additional Public Prosecutor for R5 to R11

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: Mr.M.Karunanithi Special Public Prosecutor for R2 to R4.

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Crl.O.P.(MD).No.22462 of 2022

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S.Sakthivel ... Petitioner

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Vs.

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1.State rep by its The Inspector of Police, CBCID-South Madurai City. Crime No.1 of 2019

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Dr.G.Srinivas (Died) ... Respondent

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PRAYER: This Criminal Original Petition is filed under Section 482 of the Criminal Procedure Code, to call for th records pertaining to the impugned charge sheet in C.C.No. 1836 of 2022 on the file of the Judicial Magistrate Court No.IV, Madurai

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Crl.R.C.(MD).No.382 of 2023 and Crl.O.P.(MD).Nos.22462 and 8206 of 2023

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and to quash the same.

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For Petitioner : Mr.A.Saravanan For Respondent : Mr.S.Ravi Additional Public Prosecutor

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COMMON ORDER

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The petitioner, arrayed as Accused No.8 in C.C. No.1836 of 2022 on the file of the learned Judicial Magistrate No.IV, Madurai, has filed the present Criminal Revision Case challenging the order dated 24.03.2023 passed in Crl.M.P.No.126 of 2023, whereby the learned Magistrate dismissed his petition seeking tender of pardon under Section 306 of the Code of Criminal Procedure.

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2.According to the petitioner, he was arrayed as the 8^th accused in the final report filed in Crime No.1 of 2019 by the respondent police. As per the prosecution case, the petitioner along with 14 other accused persons allegedly committed offences by conducting parallel UGC offices in various cities including Madurai and Tiruchirappalli, and induced several persons with false promises of employment through those fake UGC offices and also gave forged appointment orders.

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3.It is further alleged that the petitioner initially paid money for

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securing employment for his son and thereafter acted as an agent for the principal accused, and collected totally a sum of about Rs.3 crores from various persons on the promise of providing employment through the said fake UGC offices. On that basis, he was arrayed as an accused in the case.

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4.The petitioner, however, contends that he in fact was the original complainant, who had initially lodged a complaint with regard to the fake UGC offices, and that the investigation commenced only thereafter. According to him, instead of being treated as a witness, he was falsely implicated as an accused in the case. In order to substantiate the same, the petitioner expressed his willingness to make a full and true disclosure of the entire facts and sought tender of pardon under Section 306 Cr.P.C.

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5.The learned Judicial Magistrate, however, dismissed the said application. Challenging the correctness and legality of the dismissal of the tender of pardon application, the petitioner has filed the present criminal revision.

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6.Learned counsel for the petitioner would submit that, in the petition filed under Section 306 Cr.P.C., the petitioner has specifically

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stated that he had introduced 26 persons to the main accused, who issued forged employment orders through the fake UGC offices. It is submitted that the petitioner collected a sum of Rs.15,000/- from each person and earned a commission of Rs.3,90,000/-, and that the total amount collected in the entire transaction was Rs.3,12,00,000/-.

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6.1.The learned counsel would further submit that the petitioner has

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made a full and voluntary disclosure of the entire transaction and, therefore, he is a material witness for the prosecution. Hence, his application seeking tender of pardon and consequential release on bond ought to have been allowed. It is contended that the learned Magistrate erroneously dismissed the application without properly appreciating the scope of Section 306 Cr.P.C., despite the petitioner placing reliance on several judicial precedents in support of his claim. According to the learned counsel, it is always open to an accused to seek tender of pardon, and the same was not duly considered by the learned Magistrate.

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7.Per contra, the learned Additional Public Prosecutor would submit

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that the case pertains to a large-scale fraud, wherein the petitioner, along with the other accused, cheated numerous innocent persons by falsely

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promising employment through fake UGC offices established by the accused persons. It is contended that there are ample incriminating materials available against the petitioner. The petitioner himself has admitted that he collected a total sum of Rs.3,12,00,000/- and received a commission of Rs.3,90,000/-.

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7.1.It is further submitted that the petitioner is not a mere conduit or

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witness, but is one of the main conspirators in the offence. The investigation has revealed substantial evidence against him, and the final report has already been filed. Therefore, in view of the sufficiency of evidence and the gravity of the offence, the prosecution strongly opposed the application. Placing reliance on the law laid down by the Hon’ble Supreme Court in various precedents viz., AIR 1968 SC 594 , AIR 2001 SC 2734 , 2000 (2) SCC 396 and 2000 (3) SCC 161 , the learned Additional

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Public Prosecutor submitted that the petitioner is not entitled to the discretionary relief of tender of pardon and that the application was rightly rejected.

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8.This Court has considered the rival submissions, perused the records, and also taken into account the precedents relied upon by both

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sides.

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9.Now the following questions arose for consideration:

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9.1. whether the plea of the accused to accept his tender of pardon is

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acceptable?

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9.2.Whether his plea of quashment of final report in C.C.No.1832 of 2022 is legally maintainable?

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10. Discussion on the plea of tender of pardon:

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Before adverting to the said issue, this Court deems it appropriate to recapitulate the principles laid down by following the Hon'ble Supreme Court judgments:

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(i)In the case of Jasbir Singh vs. Vipin Kumar Jaggi and others reported in AIR 2001 SC 2734

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(ii)In the case of Central Bureau of Investigation vs. Ashok Kumar Aggarwal reported in 2013 (15) SCC 222

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(iii)In the case of Lt.Commander Pascal Fernandes vs. The state of Maharashtra and others reported in 1968 AIR 594

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(iv) In the case of State of H.P.vs. Surinder Mohan and others reported in 2000 (2) SCC 396

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(v)In the case of Ranadhir Basu vs. State of W.B reported in 2000

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(3) SCC 161

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10.1.From a careful reading of the aforesaid precedents, the following principles emerge clearly:

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(i)An accused may seek tender of pardon under Section 306(4)(1)(a) of Cr.P.C. either before commencement of trial or, in appropriate cases, even after commencement of trial;

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(ii)However, the exercise of such power is discretionary and must be guided by the bona fides of the accused and the interest of justice;

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(iii) The Court must examine whether the prosecution case would be prejudiced and whether the evidence already available is sufficient to proceed against the accused without resorting to tender of pardon.

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10.2.In this case, as per the averments made in the final report filed in C.C.No.1836 of 2022, the petitioners and the other accused collected a sum of Rs.3,12,00,000/- from 26 persons and handed over the same to the main accused under the guise of securing employment through the fake UGC offices at various places including Madurai, Tiruchirappalli, etc,. It is also admitted that the petitioner received a commission of Rs.3,90,000/-.

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10.3.According to the prosecution, there are ample materials and circumstances available on record to proceed with the trial against the petitioner and the other accused, and that sufficient evidence has already been collected to substantiate the allegations. Hence, the petitioner cannot, as a matter of right, seek tender of pardon under Section 306 Cr.P.C. When the investigating agency has gathered sufficient evidence to establish the allegations and to secure a probable conviction against the petitioner and

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the other accused, it is not obligatory on the part of the Court to grant tender of pardon merely on the application of the accused.

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10.4.Therefore, the submissions of the learned Additional Public Prosecutor merits acceptance. The Hon’ble Supreme Court, in various decisions, has held that when serious objections are raised by the prosecution and the investigating agency, and when sufficient incriminating materials are available, the Court is not bound to grant tender of pardon.

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10.5.In view of the same, this Court finds that the petition is misconceived and devoid of merits, and is therefore liable to be dismissed. Accordingly, the criminal revision is dismissed.

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11. Discussion on the quash petition:

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The petitioner had also filed Crl.O.P.No.22462 of 2022 before this Court seeking to quash the proceedings, contending that the only material available against him was the confession of the co-accused, and that he was the original informant who had initially set the criminal law in motion against the remaining accused, but was wrongly arrested and arrayed as an accused instead of being treated as a witness.

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11.1.It is a well-settled principle of law that there is no legal bar for the investigating agency to file a final report even against the informant, if the materials available on record disclose his involvement in the offence. As already noted, several witnesses have spoken about the petitioner’s role in receiving money from various persons, and there are materials to show that he had also produced fake appointment orders. Therefore, the contention of the petitioner that the prosecution case rests solely on the confession of the co-accused is factually incorrect.

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11.2.Even otherwise, at this stage, this Court is not expected to conduct a detailed analysis of the sufficiency or reliability of the evidence.

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When a charge under Section 120-B IPC is made out, the confession of a co-accused, when read along with other incriminating materials, is sufficient for the purpose of framing of charges. At this stage, it is not the duty of the Court to look for materials in favour of the accused or to weigh the evidence meticulously, but has to only to ascertain whether there exists a prima facie case to proceed with the trial. Applying the settled principles, this Court finds no merit in the contentions raised in the quash petition and holds that the same is liable to be dismissed. Accordingly, the petition stands dismissed.

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12. Discussion on the plea of transfer to CBI:

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The petitioner has also filed Crl.O.P. No.8206 of 2022 seeking transfer of the investigation from the respondent police to the CBI alleging improper investigation by the respondent police and contending that witnesses were wrongly arrayed as accused. This Court has carefully perused the entire final report and the voluminous documents produced. Upon such perusal, this Court finds no material lapse in the investigation on the part of the CBCID. On the contrary, the CBCID, being a specialised investigating agency, has conducted the investigation in a meticulous manner, arrested all the accused involved, and filed a comprehensive final

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report supported by substantial documentary evidence.

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12.1.The CBCID, Tamil Nadu, namely the respondent police, conducted a fair and proper investigation and thereafter filed the final report before the learned trial Judge. The same was taken on file in C.C. No.1836 of 2022 on the file of the learned Judicial Magistrate No.IV, Madurai, and the case is now pending for trial. At this stage, this Court finds no justifiable reason to transfer the investigation to the CBI, since no extraordinary or exceptional circumstances have been made out warranting such transfer. Further, the petitioner’s case does not fall within the parameters laid down by the Hon'ble Constitution Bench of the Supreme Court in the case of State of West Bengal v. Committee for Protection of Democratic Rights , reported in 2010 (3) SCC 571 to entertain the transfer of investigation from the State investigating agency to the CBI and the same was enunciated hereunder:

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70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power

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under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

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71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya [(2002) 5 SCC 521 : 2002 SCC (L&S) 775] this Court had said that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other

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similar agency. We respectfully concur with these observations.

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12.2.In view of the above discussions, the petitioner has been filed

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this transfer of investigation petition only with an intention to protract the proceedings in C.C.No.1836 of 2022 on the file of the learned Judicial Magistrate No.IV, Madurai and hence, this Court is inclined to dismiss the said petition.

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13. Accordingly, the Crl.R.C.(MD).No.382 of 2023 and Crl.O.P. (MD).No.22462 and 8206 of 2023 are dismissed. Consequently, connected miscellaneous petitions are closed.

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06.01.2026

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NCC : Yes / No Index : Yes / No Internet : Yes / No sbn

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To

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1.Judicial Magistrate Court No.IV, Madurai.

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2.The Inspector of Police, CBCID-South, Madurai City.

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3.The Secretary to Government Union of India Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110 001.

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4.The Director, Central Bureau of Investigation, Plot No.5-B, CGO Complex, Lodhi Road, Near Jawaharlal Nehru Stadium, New Delhi.

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5.The Joint Director, Central Bureau of Investigation, Shasthri Bhavan, College Road, Nungambakkam, Chennai 600 006.

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6.The Joint Director, Central Bureau of Investigation (ACB), No.73 Athikulam Main Road, Palanisamy Nagar, Ramnad Reserve Line, Athikulam, Madurai 625 007

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7.The principal Secretary to Government, Home Department, State of Tamilnadu, Fort St.George, Secretariat, Chennai-600 009.

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8.The Additional Secretary to Government, Home (Police-IX) Department, State of Tamil Nadu, Fort St.George, Secretariat, Chennai-600 009.

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9.The Director General of Police,

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Police Head Quarters, Dr.Radhakrishnan Road, Mylapore, Chennai-600 004.

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10.The Commissioner of Police, Madurai City, Alagarkovil Road, Madurai.

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11.The Inspector of Police, Crime Branch CID, No.7, Kamarajar 1^st Street, Chinna Chokikulam, Near IOB, Madurai 625 002.

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12.The Inspector of Police, Central Crime Branch, II Floor, Office of the Commissioner of Police, Madurai.

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13.The Inspector of Police, SS Colony Police Station, Madurai City.

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14.Joint Secretary and Head University Grants Commission (UGC) South Eastern Regional Office, A.P.State Financial corporation Building, 4^th Floor, 5-9-194, P.B.No.152 Chirag-Ali-Lane, Hyderabad.

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