IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL
JURISDICTION
WRIT
PETITION [CIVIL] NO.____________OF 2017
[Under
Article 32 of the Constitution of India read with Order XXXVIII, Rule 12 (1)
(d) & 2 of The Supreme Court Rules, 2013)
BETWEEN:
Satta
Panchayat Iyakkam,
Rep.
by its General Secretary,
Senthil
Arumugam @ Senthil Kumar
S/o,
Arumugam,
Aged
about 40 years,
No.
31, South West Boag Road,
T.
Nagar, Chennai-600017.
Email:sattapanchayat@gmail.com
Mobile:08754580274
Annual
Income: Rs. 12,00,000/- p.a.
PAN
No:AAMTS9791A;
Voter
ID:XKR1411248.
Versus
1) Chief Election Commissioner,
Election Commission of India,
Nirvachan Sadan, New Delhi. ..Respondent-1
2). Chief Secretary,
Government of Tamil Nadu,
Secretariat, St. George Fort,
Chennai. ..Respondent-2
3) Union of India,
rep. by the Secretary
Ministry of Law & Justice,
Shashthri Bhavan,
New Delhi. ..Respondent-3
4) Tmt.
Sasikala Natarajan,
W/o Thiru. M. Natarajan,
R/o.
Vedtha Nilayam,
36,
Poes Garden,
Chennai
– 86.
Presently at Central Jail,
Parappana Agraharam Jail,
Bangalore,
Karnataka …Respondent-4
All are contesting Respondents
WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA READ WITH ORDER XXXVIII, RULE 12 (1) (d) & 2 OF THE
SUPREME COURT RULES, 2013 FOR MANDAMUS DIRECTION AGAINST RESPONDENTS FOR THE VIOLATION OF THE RIGHTS UNDER ARTICLE 14,
19 & 21 OF CONSTITUTION OF INDIA.
To,
The Hon’ble The Chief
Justice of India
And His Companion Justice
of the
Supreme Court of India
The Humble Petition of the
Petitioner above named
MOST RESPECTFULLY
SHOWETH:-
1. The
Petitioner who is a registered Trust constrained to file this Public Interest Litigation (PIL) by way
of Writ Petition under Article 32 of the Constitution of India for Writ of
Mandamus direction or any other appropriate writ or order of declaration to
declare Respondent No.4/Smt. V.K. Sasikala disqualified from holding a
political posts like General Secretary/President of AIADMK, State Recognized
political party as she has been convicted for 4 years simple imprisonment in a
disproportionate assets case and disqualified for being chosen and being a
member of Legislative Assembly u/s. 8 (3) of Representation of People Act, 1951
read with Article 191 of Constitution.
1A. The copy of the judgment and order dated
27.9.2014 passed by the Trial Court i.e. 36th Addl. City Civil & Sessions
Judge (Spl. Court for trial of criminal cases against Kum. Jayalalitha &
Ors) at Bangalore in Special case Spl. C.C. No. 208 of 2014, copy of the
judgment and order dated 11.5.2015 passed by the Ld. Single Judge of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 835 of 2015 and copy of
the Judgment and order dated 14.2.2017 passed by this Hon’ble Court in the in
Crl.A. Nos. 300-303 of 2017 are running more than 2500 pages and hence, the
same will be filed separate volume after getting registration of writ petition or
at the time of hearing of the present writ petition if the same are required by
this Hon’ble Court. Hence, WP may be posted for hearing at my own risk.
1B It is clarified that the Respondent viz.
individual V.K. Sasikala is a necessary party as the relief and direction
sought against her directly.
2. FACTS OF
THE CASE:
2.1.
From
1991-96, Late Selvi J. Jayalalitha was the Chief Minister of Tamil Nadu. The
AIADMK Party headed by her was defeated in the general election held in 1996
and DMK Party was voted to power. Special Courts were constituted for the trial
of cases filed against Late Selvi J. Jayalaltha and Respondent/V.K. Sasikala,
the constitution of Court came to be upheld by this Hon’ble Court.
2.2.
And thereafter, in the
year 1997, CC No. 7 was filed for the trial against Late Selvi J. Jayalalitha
& Respondent/V.K. Sasikala etc.ect., who have been charge-sheeted for
offences under Section 120-B IPC, Section 13(2) read with Section 13(1)(e)
of the Prevention of Corruption Act, 1988 for accumulation of wealth of Rs
66.65 crores, disproportionate to their known sources of income.
2.3.
In the year 2001, CC
No. 2 of 2001 was filed on the file of the Principal Special Judge, Chennai. Late
Selvi J. Jayalaitha & Respondent/V.K. Sasikala etc.etc. have been
charge-sheeted for offences under Section 120-B IPC, Section 13(2) read with
Section 13(1)(e) of the Prevention of Corruption Act, 1988 for
acquisition and possession of pecuniary resources and property outside India,
which are disproportionate to their known sources of
income, by resorting to clandestine transfer of funds belonging to Late Selvi
J. Jayalalitha with the help of Mr T.T.V. Dinakaran from India to outside
country by violating the provisions of the Foreign Exchange Regulation Act and
from other countries into the United Kingdom.
2.4.
In the general election
held in May 2001 AIADMK Party headed by the Late Selvi J. Jayalalitha secured
an absolute majority in the Legislative Assembly. Late Selvi J. Jayalalith was
unanimously chosen to be the leader of the House by the AIADMK Party. The said
appointment was challenged and Hon’ble Supreme Court has nullified that
appointment. Consequently, on 21-9-2001, and Late Selvi J. Jayalalitha ceased
to hold the office of Chief Minister. The present Chief Minister Mr. O.
Paneerselvam is a nominee of Late Selvi J. Jayalitha was sworn in as the Chief
Minister of Tamil Nadu. The Election Commission of India announced the
bye-election to Andipatti Constituency. In the bye-election held on 21-2-2002, Late
Selvi J. Jayalalitha was declared elected and she was again sworn in as the
Chief Minister on 2-3-2002.
2.5.
With change in
Government, three Public Prosecutors resigned. Senior Counsel S. Natarajan, who
was appearing for the State, also resigned. And IO Nallama Naidu, who had
earlier been given an extension, also resigned. Even though it has nothing to do
with the change in Government, that due to retirements and routine transfers
there were changes in the Special Judge also. On 7-11-2002, the trial in CC No.
7 of 1997 resumed. Since 7-11-2002 when the trial resumed as many as 76 PWs
have been recalled for cross-examination on the ground that counsel appearing
for the respondents or some of them had earlier been busy in some other case
filed against them. The Public Prosecutor did not object and/or give consent to
the witnesses being recalled. Out of total 76 PWs, 64 PWs resiled from their
previous statement-in-chief. The Public Prosecutor has not made any attempt to
declare them hostile and/or to cross-examine them by resorting to Section 154
of the Indian Evidence Act. No attempt has been made to see that court takes
action against them for perjury. The presence of Late Selvi J. Jayalalihta has
been dispensed with during her examination under Section 313 CrPC and instead a
questionnaire was sent to Selvi J. Jayalalitha and her reply to the
questionnaire was sent to the court in absentia. The procedure so adopted is
unknown to law and the Public Prosecutor has not objected to the application of
Late Selvi J. Jayalalitha for dispensing with her presence at the time of
examination under Section 313 CrPC.
2.6.
That in the above facts
and circumstances, two Transfer Petition (Criminal) Nos. 77-78 of 2003 have
been preferred before the Hon’ble Supreme Court of India under Section 406 of
the Code of Criminal Procedure, seeking transfer of CC No. 7 of 1997 and CC No.
2 of 2001 on the file of the XIth Additional Sessions Judge (Special Court No.
1), Chennai in the State of Tamil Nadu to a court of equal and competent
jurisdiction in any other State by the then opposition party Dravida Munnetra
Kazhagan (DMK) through its leader K. Anbazhagan.
2.7.
That this Hon’ble Court in the above case of
“K. Anbazhagan Vs. Superintendent of Police & Ors. Reported in (2004) 3 SCC
767, para 34 on 18th November, 2013, has transferred the
disproportionate assets case of Late Selvi J. Jayalalitha and Respondent/V.K.
Sasikala etc. etc. from the State of Tamil Nadu to State of Karnataka when she
was in power as Chief Minister of State of Tamil Nadu and passed various
direction order as stated in the above said reported judgment.
2.8.
After prolong delay of more than 18 years,
on an appreciation of entire evidence & exhibits, Hon’ble Mr. Justice
Michel D. Kunha, Special Judge of Special Court at Bangalore, Court of XXXVI
Addl. City Civil and Sessions Judge, Bangalore in Special Case C.C.No.208/2004
by his judgment and order dated 27.9.2014 convicted Late Selvi J. Jayalalitha
& Respondent/V.K. Sasikala etc. etc. and sentenced them to simple
imprisonment for four years and fine of Rs. 100 Crore under section 13(2) &
13(1)(e) of prevention of Corruption Act read with section 120B IPC as
follows:-
“O R D E R
Prosecution
has proved beyond reasonable doubt that as against the income of
Rs.9,91,05,094.75 and expenditure of Rs.8,49,06,833.00 during the check period,
A-1 acquired and possessed in her name and in the names of A-2 to A-4 and in
the names of the business enterprises acquired in their names immovable
properties and pecuniary resources of the value of Rs.53,60,49,954.00 which she
could not satisfactorily account. Hence,
acting u/Sec. 248 (2) of Cr.P.C., A-1 is hereby convicted for the offence
punishable u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of P.C. Act.
Prosecution
has proved beyond reasonable doubt that, A-1 to A-4 were parties to criminal
conspiracy with the object of acquiring and possessing pecuniary resources and
assets to the extent of Rs.53,60,49,954.00 beyond the known source of income of
A-1. Hence, A-1, A-2, A-3 and A-4 are
hereby convicted for the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13
(1) (e) R/w. Sec. 13 (2) of P.C. Act.
Prosecution
has proved beyond reasonable doubt that A-2 to A-4 abetted the commission of
the above offence by intentionally aiding A-1 in the acquisition and possession
of pecuniary resources and properties disproportionate to her known source of
income as above. Hence, A-2, A-3 and A-4
are hereby convicted for the offence punishable u/Sec.109 of I.P.C. R/w. Sec.
13 (1) (e) R/w. Sec. 13 (2) of P.C. Act.”
“SENTENCE.
For
the offence u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of the P.C. Act, A-1 Selvi. J.
Jayalalitha, D/o. Late. Jayaram, is hereby sentenced to undergo simple
imprisonment for a period of four years and a fine of Rs.100 crores. In default to pay the fine amount, she shall
undergo further imprisonment for one year.
For
the offence punishable u/Sec. 120-B I.P.C., R/w. Sec. 13 (2) of P.C. Act, A-1
is sentenced to undergo simple imprisonment for six months and to pay fine of
Rs. 1 lakh. In default to pay the fine,
she shall undergo further imprisonment for one month.
For
the offence punishable u/Secs. 109 of I.P.C., R/w. Sec. 13 (2) of P.C. Act, A-2
Tmt. Sasikala Natarajan, A-3 Tr. V.N. Sudhakaran and A-4 Tmt. J. Eavarasi are
sentenced to undergo simple imprisonment for a period of four years each and to
pay fine of Rs.10 crores each. In
default to pay the fine amount, A-2, A-3 and A-4 shall each undergo further
imprisonment for one year.
For
the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (2) of P.C. Act,
A-2, A-3 and A-4 each are sentenced to undergo simple imprisonment for a period
of six months and to pay fine of Rs.10,000/- each. In default to pay the fine amount, A-2, A-3
and A-4 shall each undergo further
imprisonment for one month.
Substantive sentences of imprisonment shall run
concurrently.
Period
of custody already undergone by the accused shall be given set off u/Sec. 428
of Cr.P.C. It is further ordered that,
necessary direction shall be issued to the concerned banks to remit the
proceeds of the Fixed Deposits and the cash balance standing to the credit of
the respective accused in their bank account and the proceeds thereof shall be
appropriated and adjusted towards the fine amounts.
If
after adjustment, still the fine falls short, the gold and diamond ornaments
seized and produced before the Court (after setting apart 7040 grams of gold
with proportionate diamond jewellery), as observed in the body of the judgment
shall be sold to RBI or SBI or by public auction to make deficit of fine amount
good. The rest of the gold and diamond
jewellery shall be confiscated to the Government.
All
the immovable properties registered in the names of Lex Property Developments
Pvt. Ltd., Meadow Agro Farms Pvt. Ltd., Ramaraj Agro Mills Pvt. Ltd., Signora
Business Enterprises (P) Ltd., Riverway Agro Products (P) Ltd., and Indo Doha Chemicals
and Phramaceuticals Ltd., which are under attachment pursuant to G.O. Nos. M.S.
120 and 1183, shall be confiscated to the State Government.
Out
of the fine amount recovered as above, a sum of Rs.5 crores shall be made over
to the State of Karnataka towards reimbursement of the cost of trial conducted
in the State of Karnataka.
Furnish
a free copy of the full judgment to the accused forthwith.
Intimate the Speaker
of the Legislative Assembly of the State of Tamil Nadu and his Excellency, the Governor
of State of Tamil Nadu, by fax or courier, the conviction and sentence passed
against to A-1, followed by formal written communication.”
2.9.
That in view of the law laid by the Hon’ble
Supreme Court of India in “Lily Thomas” Case and in view of sub-section (3) of
section 8 of representation of People Act, 1951 read with Article 191 of the
Constitution, Late Selvi J. Jayalitha, a former Chief Minister of State of
Tamil Nadu and a former elected member of Srirangam Assembly Constituency of
Tamil Nadu State Legislative Assembly was disqualified for being chosen and
being a member of Legislative Assembly immediately from the date of her
conviction and sentence order dated 27.9.2014.
2.10.
That on the direction of this Hon’ble Court
to constitute a special court and complete the hearing of criminal appeal filed
by Late Selvi J. Jayalalitha & Respondent/V.K. Sasikala etc. etc. against
their conviction order within 3 months time,
the Chief Justice of Karnataka High Court constituted the Single Judge
Bench Special Court to hear the Criminal Appeals filed by Late Selvi J
Jayalalitha and Respondent/V.K. Sasikala. The Chief Justice of Karnataka high
Court has also appointed Hon’ble Mr. Justice C. Kumarasamy, Ld. Single Judge of
the Karnataka High Court at Bangalore as a Special Judge to hear the Criminal
Appeals filed by Selvi J. Jayalalitha.
2.11.
The Special Judge vide his judgment and
order dated 11.5.2015 allowed the Criminal Appeal Nos.835, 836, 837 & 838
of 2014 filed by Late Selvi J. Jayalalitha, Tmt. N. Sasikala Natarajan, Mr. V.
N. Sudhakaran & Tmt. J. Elavarasi and set aside the conviction judgment and
order dated 27.9.2014 passed by Hon’ble Mr. Justice Michel D. Kunha, Special
Judge of Special Court at Bangalore, Court of XXXVI Addl. City Civil and
Sessions Judge, Bangalore in Special Case C.C.No.208/2004 and acquitted Selvi
J. Jayalalitha, Tmt. N. Sasikala Natarajan, Mr. V. N. Sudhakaran & Tmt. J.
Elavarasi from all the charges without hearing the prosecution side
effectively.
2.12.
Since four year tenure of ruling AIADMK
govt. was going to expire on 23.5.2015, in order to request the Election
Commission to conduct By Election in the State before the expiry of one year
period, and in order to help or favour Late Selvi J. Jayalalitha to contest the
Bye Election if any held before one year period, the ruling AIADMK party MLA
Mr. P. Vetrivel, from (11) Dr. Radhakrishnan Nagar Assembly Constituency have send his resignation letter to the
Speaker of T.N. State Legislative Assembly with political pressure or
compulsion on 17th May, 2015. The Speaker of T.N. Legislative
Assembly without any enquiry in regard of voluntary resignation or any
compulsion, the Speaker of T.N. Legislative Assembly in a hurry burry manner on
the very same day i.e. on Sunday on 17.5.2015 itself accepted the resignation
and published the same in the official gazette as well on the very same day
i.e. on 17.5.2015.
2.13.
The ruling AIADMK party called their all
party MLAs meeting on 22.5.2015 and decided Late Selvi J. Jayalalitha to be
sworn as Chief Minister of State of Tamil Nadu.
2.14.
The acquittal
order passed by single
judge of Hon’ble High Court of Karnataka was challenge by Karnataka State one
third party Mr. Anbazhagan before the Hon’ble Supreme Court of India in S.L.P.
(Crl) Nos. 6117-6120 of 2015 & S.L.P. (Crl) Nos. 7107-7122 of 2015. This
Hon’ble Court issued notice in the above SLPs and heard the argument on both
sides and reserved its judgment in the month of June, 2016.
2.15.
The former Chief Minister of Tamil Nadu viz. late
Sevli J. Jayalalitha was expired on 5.12.2016.
2.16.
That on the very same day of death of Late Selvi J.
Jayalalitha i.e. 5.12.2016 late night one O.Panneerselvam sworn in as Chief
Minister of Tamil Nadu.
2.17.
That due to the death of Late Selvi J. Jayalalitha,
the R.K. Nagar Assembly constituency became vacant from the date of its
declaration.
2.18.
The Petitioner NGO on 28.12.2016 sent a representation
to the Respondent/Election Commission of India to Prohibit the convicted to
function as Leaders of Political Parties. A true copy of the Representation dated
28.12.2016 sent by the Petitioner NGO to Respondent/ECI is filed as Annexure-P1
- Page
2.19.
That on 29.12.2016, the Respondent/V.K. Sasikala
elected as General Secretary of ruling AIADMK party.
2.20.
That on 5.2.2017, in contrary to law, the ruling
AIADMK party MLAs elected Respondent/V.K. Sasikala as a leader of legislative
Assembly who is not a elected MLA of Legislative Assembly.
2.21.
The former Chief Minister O. Paneerselvam has
resigned his post as a Chief Minister of Tamil Nadu on 5.2.2017 and given
resignation letter to the Governor of State of Tamil Nadu.
2.22.
The
Governor of State of Tamil Nadu also accepted the resignation given by the former
Chief Minister on 6.2.2017.
2.23.
The print and electronic media states that senior
counsel for the Karnataka State mentioned before this Hon’ble Court on 6.2.2017
and informed that late Selvi J. Jayalalitha died on 5.12.2016 and they expected
early judgment from this Hon’ble Court in the disproportionate assets case of
late Selvi J. Jayalalitha and Respondent V.K. Sasikala. In reply, this Hon’ble
Court informed that it will deliver judgment within a week probably in the
disproportionate assets case of late Selvi J. Jayalalitha and Respondent V.K.
Sasikala.
2.24.
That this Hon’ble Court by its judgment and order
dated 14.2.2017 in Crl.A. Nos. 300-303 of 2017 etc. etc. has reversed the
acquittal order passed by the Special Judge Hon’ble Mr. Justice. C. Kumarasamy
and restored the conviction and sentence order passed by Special Judge Hon’ble
Mr. Justice Michel D. Kunha and held that:-
“Furthermore, the reasoning given
by the Trial Court in respect of criminal conspiracy and abetment, after
scrutinizing the evidence of this case, is correct in the face of the overwhelming
evidence indicating the circumstances of active abetment and conspiracy by A2
to A4 in the commission of the above offences under Section 13(1)(e) of the
1988 Act. This would be evident from the
following circumstances:
(i) A1 had executed a General
Power of Attorney in favour of A2 in respect of Jaya Publications marked as Ex.P-995.
The circumstance of executing the power of attorney in favour of A2 indicates
that with a view to keep herself secured from legal complications, A1 executed
the said power of attorney knowing fully well that under the said powers, A2
would be dealing with her funds credited to her account in Jaya Publications.
(ii) Constitution of various
firms during the check period is another circumstance establishing the
conspiracy between the parties. It has come in evidence that 10 firms were
constituted on a single day. In addition, A2 and A3 started independent
concerns and apart from buying properties, no other business activity was undertaken
by them. The circumstances proved in evidence undoubtedly establish that these
firms are nothing but extentions of Namadhu MGR and Jaya Publications and they
owed their existence to the benevolence of A1 and A2
(iii) The aforesaid firms and
companies were operating from the residence of A1 and it cannot be accepted
that she was unaware of the same even though she feigned ignorance about the
activities carried on by A2 to A4. They were residing with A1 without any blood
relation between them.
(iv) Although A2 to A4 claims to
have independent sources of income but the fact of constitution of firms and acquisition
of large tracts of land out of the funds provided by A1 indicate that, all the
accused congregated in the house of A1 neither for social living nor A1 allowed
them free accommodation out of humanitarian concern, rather the facts and
circumstances proved in evidence undoubtedly point out that A2 to A4 were
accommodated in the house of A1 pursuant to the criminal conspiracy hatched by
them to hold the assets of A1.
(v) Ex.D.61 reveals that before
the Income Tax Authorities, the representative of A1 himself had put forth an argument
that Rs.1 crore was advanced by A1 to Sasi Enterprises towards share capital
and further it was submitted that on the security of the said amount, loan was
borrowed by A1, and thus she cannot claim non-involvement with the firms.
(vi) The flow of money from one
account to the other proves that there existed active conspiracy to launder the
ill-gotten wealth of A1 for purchasing properties in the names of the firms.
(vii) The conspiracy among the
accused persons is also proved by the evidence of Sub-Registrar, North Beach, Sub-Registrar
office-PW.159 and the evidence of PW.71 Radha Krishnan, Horticultural officer.
In our opinion, the Trial Court
correctly came to the conclusion on such reasoning and we hereby uphold the same.
Accordingly, in view of the
reasoning recorded hereinabove in the preceding paragraphs, we set aside the judgment
and order of the High Court and affirm and restore the judgment of the Trial
Court in toto against A2 to A4.
However, though in the process of
scrutiny of the facts and the law involved and the inextricable nexus of A1 with A2 to A4, reference to her role as
well as the evidence pertaining to her had been made, she having expired
meanwhile, the appeals, so far as those relate to her stand abated. Nevertheless,
to reiterate, having regard to the fact that the charge framed against A2 to A4
is proved, the conviction and sentence recorded against them by the Trial Court
is restored in full including the consequential directions.
543. Respondents A2 to A4, in view
of this determination and the restoration of their conviction and sentence,
would surrender before the Trial Court forthwith. The Trial Court is hereby
also ordered to take immediate steps to ensure that the respondents A2 to A4
serve out the remainder of sentence awarded them and take further steps in
compliance of this judgment, in accordance with law.”
2.25.
The
Petitioner NGO again sent a detailed representation on 17.3.2017 to the
Respondent/Election Commission of India to prohibit Respondent No.4/V.K.
Sasikala, a convict to function as a General Secretary of AIADMK – also to
prohibit all the convicted who are holding a key officer bearer posts in a
recognized or registered state and National political parties all over India. A
true copy of the Representation dated 17.3.2017 sent by the Petitioner NGO to
Respondent/ECI is filed herein as Annexure-P2 - Page
2.26.
Since, the Respondents not taken any steps on the
representation, the present PIL Writ Petition is filed.
3. GOVERNMENT
AUTHORITY CONCERNED APPROACHED & ITS RESULT:
Since the prayer relief
sought in the present petition is for order for writ of quo warranto,
declaration and framing of guidelines. Further the writ is for enforcement of
fundamental rights and against the constitutional violation, written
representation is sent on 28.12.2016 as well as on 17.3.2017 by the Petitioner.
Since, the Election Commission of India not considered and taken any steps in
the representation sent by the Petitioner, the Petitioner filed this present
Writ Petition.
4. DECLARATION:
That the petitioner states
that he has not filed any other similar petition filed before this Hon’ble
Court or before any other High Court earlier.
5. GROUNDS
The
Petitioner seeking relief on the following grounds:-
5.1.
Because during
the period of 1991 to 1996, when late Selvi J. Jayalalitha was Chief Minister
of Tamil Nadu State, the Respondent V.K. Sasikala with the help of former Chief
Minister of State of Tamil Nadu late Selvi J. Jayalaitha has committed offences
for accumulation of wealth of Rs 66.65 crores, disproportionate to their known
sources of income and thus they have been charge-sheeted and convicted for
simple imprisonment of 4 years with fine of Rs. 100 Crores for commission of
offences under Section 120-B IPC, Section 13(2) read with Section 13(1)(e)
of the Prevention of Corruption Act, 1988 by the Special Court at Karnataka.
5.2.
Because this Hon’ble Court by its judgment and
order dated 14.2.2017 passed in Crl.A. Nos. 300-303 of 2017 etc. etc. has
confirmed the conviction and sentence order passed by Special Judge Hon’ble Mr.
Justice Michel D. Kunha and held that:-
“Furthermore, the reasoning given
by the Trial Court in respect of criminal conspiracy and abetment, after
scrutinizing the evidence of this case, is correct in the face of the overwhelming
evidence indicating the circumstances of active abetment and conspiracy by A2
to A4 in the commission of the above offences under Section 13(1)(e) of the
1988 Act. This would be evident from the
following circumstances:
(i) A1 had executed a General
Power of Attorney in favour of A2 in respect of Jaya Publications marked as
Ex.P-995. The circumstance of executing the power of attorney in favour of A2
indicates that with a view to keep herself secured from legal complications, A1
executed the said power of attorney knowing fully well that under the said powers,
A2 would be dealing with her funds credited to her account in Jaya
Publications.
(ii) Constitution of various
firms during the check period is another circumstance establishing the conspiracy
between the parties. It has come in evidence that 10 firms were constituted on
a single day. In addition, A2 and A3 started independent concerns and apart
from buying properties, no other business activity was undertaken by them. The
circumstances proved in evidence undoubtedly establish that these firms are nothing
but extentions of Namadhu MGR and Jaya Publications and they owed their
existence to the benevolence of A1 and A2
(iii) The aforesaid firms and
companies were operating from the residence of A1 and it cannot be accepted
that she was unaware of the same even though she feigned ignorance about the
activities carried on by A2 to A4. They were residing with A1 without any blood
relation between them.
(iv) Although A2 to A4 claims to
have independent sources of income but the fact of constitution of firms and acquisition
of large tracts of land out of the funds provided by A1 indicate that, all the
accused congregated in the house of A1 neither for social living nor A1 allowed
them free accommodation out of humanitarian concern, rather the facts and
circumstances proved in evidence undoubtedly point out that A2 to A4 were
accommodated in the house of A1 pursuant to the criminal conspiracy hatched by
them to hold the assets of A1.
(v) Ex.D.61 reveals that before
the Income Tax Authorities, the representative of A1 himself had put forth an argument
that Rs.1 crore was advanced by A1 to Sasi Enterprises towards share capital
and further it was submitted that on the security of the said amount, loan was
borrowed by A1, and thus she cannot claim non-involvement with the firms.
(vi) The flow of money from one
account to the other proves that there existed active conspiracy to launder the
ill-gotten wealth of A1 for purchasing properties in the names of the firms.
(vii) The conspiracy among the
accused persons is also proved by the evidence of Sub-Registrar, North Beach, Sub-Registrar
office-PW.159 and the evidence of PW.71 Radha Krishnan, Horticultural officer.
In our opinion, the Trial Court
correctly came to the conclusion on such reasoning and we hereby uphold the same.
Accordingly, in view of the
reasoning recorded hereinabove in the preceding paragraphs, we set aside the judgment
and order of the High Court and affirm and restore the judgment of the Trial
Court in toto against A2 to A4.
However, though in the process of
scrutiny of the facts and the law involved and the inextricable nexus of A1 with A2 to A4, reference to her role as
well as the evidence pertaining to her had been made, she having expired
meanwhile, the appeals, so far as those relate to her stand abated.
Nevertheless, to reiterate, having regard to the fact that the charge framed against
A2 to A4 is proved, the conviction and sentence recorded against them by the
Trial Court is restored in full including the consequential directions.
543. Respondents A2 to A4, in
view of this determination and the restoration of their conviction and
sentence, would surrender before the Trial Court forthwith. The Trial Court is hereby
also ordered to take immediate steps to ensure that the respondents A2 to A4
serve out the remainder of sentence awarded them and take further steps in
compliance of this judgment, in accordance with law.”
5.3.
Because in view of the law laid down by the
Hon’ble Supreme Court of India recently in the case of “Lily Thomas Vs Union of
India & Ors.” reported in (2013) 7 SCC 653 that:- “sub section (4) of
section 8 of the Representation of the People Act, 1951, is ultra virus and
un-constitutional” and thus as per sub-section (3) of section 8 of the
Representation of the People Act, 1951, a person including any ordinary person
as well a sitting member of Legislative Assembly or being chosen as a member of
legislative assembly convicted for any commission of offence and sentenced to
imprisonment for not less than two years [other than any offence referred to in
sub-section (1) or sub-section (2)] shall be disqualified from the date of such
conviction and shall continue to be disqualified for a further period of six
years since his release.
5.4.
Because in view of Article 191 of the
Constitution of India, a person shall be disqualified for being chosen as, and
for being, a Member of the Legislative Assembly or Legislative Council of a
state (e) if he or she is disqualified by or under any law made by Parliament.”
5.5.
Because the five judges constitutional bench of this Hon’ble Court in the case of
“Manoj Narula Vs. Union of India” reported in (2014) 9 SCC 1 para 99, 100 &
101 has held that:-
“99. It is worthy to note that the Council of Ministers has the collective
responsibility to sustain the integrity and purity of the constitutional
structure. That is why the Prime Minister enjoys a great magnitude of
constitutional power. Therefore, the responsibility is more, regard being had
to the instillation of trust, a constitutional one. It is also expected that
the prime Minister should act in the interest of the national polity of the
nation-state. He has to bear in mind that unwarranted elements or person who
are facign charge in certain category of offences may thwart or hinder the
canons of constitutional morality or principles of good governance and
eventually diminish the constitutional trust. We have already held that
prohibition cannot be brought in within the province of “advice” but indubitably,
the concepts, especially the constitutional trust, can be allowed to be
perceived in the act of such advice.
100. Thus, while interpreting Article 75 (1), definitely a disqualification
cannot be added. However, it can always be legitimately expected, regard being
had to the role of Minister in the Council of Ministers and keeping in view the
sanctity of oath he takes, the Prime Minister, while living up to the trust
reposed in him, would consider not choosing a person with criminal antecedents against
whom charges have been framed for heinous or serious criminal offences or
charges of corruption to become a Minister of the Council of Ministers. This is
what the Constitution suggests and that is the constitutional expectation from
the Prime Minister. Rest has to be left to he wisdom of the Prime Minister. We
say nothing more, nothing less.
101. At this stage, we must hasten to add what we have said for the Prime
Minister is wholly applicable to the Chief Minister, regard being had to the
language employed in Article 164 (1) of the Constitution of India.”
5.6.
Because the authorized
person or General Secretary or President of a recognized political party has to
signed the A & B form in the election nomination of a candidate who is
contesting election on the ticket of recognized political party. If such
authorized person or General Secretary or President of a recognized political
party is convicted and disqualified from being chosen and being a member of
Legislative Assembly u/s. 8 (3) of Representation of People Act read with
Article 191 Constitution of India, being selecting or electing a candidate of
recognized political party violates the mandates and objects of
disqualification as the said action is a colorable exercise or action which is
impressible in the eyes of law.
5.7.
Because in the present
case, Respondent No4/Smt. Sasikala although confined in jail, disqualified from
being chosen and being a member of Legislative Assembly u/s. 8 (3) of
Representation of People Act read with Article 191 Constitution of India, but
her continuation or action as a General Secretary of a ruling State recognized
party and nominating a Deputy General Secretary of a AIADMK party further her action in selecting candidate in
the R.K. Nagar bye Election which is scheduled on April, 12, 2017 is total
violation of mandates and objects of disqualification as the action of R4/Smt.
Sasikala is a colorable exercise or action which is impressible in the eyes of
law.
5.8.
Because, although, the
Representation of People Act, 1951 and Indian Constitution does not
specifically prohibit the convicted person to hold a key political post like
President or General Secretary of a Registered and Recognized State and
National Political party, finding rendered by this Hon’ble Court in the above
cases (supra) can be extended to the present case where the convicted person
from holding a key political post like President or General Secretary of a
Registered and Recognized State and National Political party, as in the absence
of specific provision, in order to provide justice and fundamental rights of
free and fair election and corrupt free governance, this Hon’ble Court may
declare the convicted person or a person disqualified from being chosen and
being a member of Legislative Assembly u/s. 8 (3) of Representation of People
Act read with Article 191 Constitution of India is also disqualified from
holding a key political post like President or General Secretary of a
Registered and Recognized State and National Political party; consequently
declare Respondent No.4/Smt. V.K. Sasikala is disqualified from holding General
Secretary post of AIADMK, a state recognized political party.
5.9.
Because taking
advantage of loop holes and absence of specific provision, the corrupt and
convicted people capture the power in politics governance.
5.10.
Because after prolong delay of more than 18
years, on an appreciation of entire evidence & exhibits Hon’ble Mr. Justice
Michel D. Kunha, Special Judge of Special Court at Bangalore, Court of XXXVI
Addl. City Civil and Sessions Judge, Bangalore in Special Case C.C.No.208/2004
by his judgment and order dated 27.9.2014 convicted Respondent/V.K. Sasikala and
sentenced her to simple imprisonment for four years and fine of Rs. 100 Crore
under section 13(2) & 13(1)(e) of prevention of Corruption Act read with
section 120B IPC and the respondent her co-convicts were taken into jail.
5.11.
Because the absence of specific provision in
with regard to the selecting a convicted and disqualified person from holding a
political posts in the recognized political parties, violates the fundamental
rights of free and fair and election as well as corrupt free governance as the
ruling and opposition recognized political parties bosses alone controlling the
entire election or selection of their party candidates process and after
winning the election their political bosses only dictating the election members
of the Legislative assembly and parliament.
5.12.
Because in view of the law laid down by the
Hon’ble Supreme Court of India recently in the case of “Lily Thomas Vs Union of
India & Ors.” reported in (2013) 7 SCC 653 that:- “sub section (4) of
section 8 of the Representation of the People Act, 1951, is ultra virus and
un-constitutional” and thus as per sub-section (3) of section 8 of the
Representation of the People Act, 1951, a person including any ordinary person
as well a sitting member of Legislative Assembly or being chosen as a member of
legislative assembly convicted for any commission of offence and sentenced to
imprisonment for not less than two years [other than any offence referred to in
sub-section (1) or sub-section (2)] shall be disqualified from the date of such
conviction and shall continue to be disqualified for a further period of six
years since his release. At least for the disqualified period, this Hon’ble
Court may apply the above said Lilly Thomas judgment in the cases of convicted
and disqualified person from holding political posts.
5.13.
Because this Hon’ble Court by its order dated 2nd May,
2002 in Civil Appeal No.7178 of 2001 in the case of “Union of India v
Association for Democratic reforms and another” reported in (2002) 5 SCC 294
has held that: -
“The Election Commission is directed
to call for information on affidavit by issuing necessary order in exercise of
its power under Art 324 of the Constitution of India from each candidate
seeking election to Parliament or a state legislature as a necessary part of
his nomination paper, furnishing therein, information on the following aspects
in relation to his/her candidature: - (1) Whether
the candidate is convicted/acquitted/discharged of any criminal offence in the
past-if any, whether he is punished with imprisonment or fine?
(2) Prior
to six months of filing of nomination, whether the candidate is accused in any
pending case, of any offence punishable with imprisonment for two years or
more, and in which charge is framed or cognizance is taken by the court of law.
If so, the details thereof.
(3) The
assets (immovable, movable, bank balances etc) of a candidate and of his/her
spouse and that of dependants.
(4) Liabilities,
if any, particularly whether there are any over dues of any public financial
institution or government dues.
(5) The educational qualifications of
the candidate.”
5.14.
Because the law of the land mandates to
fulfill certain qualification and necessary information in the nomination
before conducting election either to the State Assembly or to parliament. But
there is no provision to prohibit the convicted and disqualified person from
holding political posts of the registered and recognized political parties which
is total violation of Rights of Equality and Free and Fair Election guaranteed
under our Constitution under part-III, Article 14, 19 & 21.
5.15.
It is submitted that the Petitioner may be
permitted to raise any additional legal grounds if required at the time of
argument in order to convince this Hon’ble Court about the merit of the case,
Maintainability and including the locus standi.
6. NATURE
AND EXTENT OF PERSONAL INTEREST, IF ANY, OF THE PETITIONER:
The
Petitioner is a NGO fighting against corruption and thus the petitioner has no
personal interest over this present PIL Writ Petition against the
Respondent/State Authority as well the Respondent/V.K. Sasikala.
In
the present case, there is no political allegation or charges leveled against
any respondents. The illegal occupation or authority of holding office of Chief
Minister as well the arbitrary exercise of Respondents authorities as CM of
State of T.N. is challenged.
As
per the settled law, every citizen is an aggrieved person against the illegal
holding of the office as well as the arbitrary exercise of State as defined by
our Constitution.
7. DETAILS
OF LEGAL NEXUS OF PETITIONER WITH PRESENT PIL:
The
Petitioner has not involved in any civil, criminal or revenue litigation in
legal nexus with the issue(s) involved in the Public Interest Litigation:
8. AFFIDAVIT OF NO PERSONAL GAIN OR
MOTIVE:
The
Petitioner has filed an affidavit stating that there is no personal gain,
private motive or oblique reason in filing the Public Interest Litigation with
this petition.
9. COURT MAY IMPOSE EXEMPLARY COSTS IF
ANY:
The
issue involved in the present WP is a purely a legal issues and it is filed in
the larger public interest. The Court may impose exemplary costs on the
petitioner(s) if it finds that the petition was frivolous or instituted with
oblique or mala fide motive or lacks bona fides.
PRAYER:
In view of the facts and circumstances
of the case, it is most respectfully prayed that this Hon'ble Court may be in
an appropriate writ of mandamus direction or any other writ be pleased to:
a)
Declare any person convicted and disqualified for being chosen and
being a member of Legislative Assembly u/s. 8 (3) of Representation of People
Act, 1951 read with Article 191 of Constitution is also disqualified a key political post like President or General Secretary
of a Registered and Recognized State and National Political party; and
b)
Declare Respondent
No.4/Smt. V.K. Sasikala is disqualified from holding General Secretary post of
AIADMK, a ruling, state recognized political party as she has been convicted
and disqualified u/s.
8 (3) of Representation of People Act, 1951 read with Article 191 of
Constitution; and
c)
Direct the Respondent/Election Commission of India
to reject the nomination & Form A & B if any submitted by any candidate
on the recommendation signature by 4th Respondent/V.K. Sasikala or
her nominated person for the R.K. Nagar Bye Election scheduled on 12th
April, 2017; and
d)
Pass such other and further order or orders
as this Hon'ble Court may deem fit and proper in the facts and circumstances of
the case.
AND FOR THIS ACT OF KINDNESS THE PETITIONERS
AS IN DUTY BOUND SHALL EVER PRAY.
DRAWN BY FILED
BY
G.S.
MANI R. SATHISH,
Advocate Advocate
for Petitioner
Place:
New Delhi
Filed
On: 21.3.2017