Judicial flak

THE "flyover scam" case initiated by the Jayalalithaa government against former Chief Minister M. Karunanidhi, his son and Chennai Corporation Mayor M.K. Stalin and 12 others has taken a beating on various fronts. Principal Sessions Judge S. Ashok Kumar, who had first remanded Karunanidhi, Stalin and others to judicial custody in the case, later went to the extent of calling the registration of the case itself a conspiracy. The case was filed, he observed, with an ulterior motive of throwing the accused behind bars.

What was more damning was the admission by P. Padmanabhan, investigating officer of the case, before Judge Ashok Kumar on July 3 that none of the 14 accused in the case received any pecuniary benefits. Padmanabhan is a Deputy Superintendent of Police in the Crime Branch-Criminal Investigation Department (CB-CID) which registered the case. He admitted that no material object or document was seized from any of the accused.

On a complaint from Chennai Corporation Commissioner J.T. Acharyalu on June 29, the CB-CID registered a case alleging a financial scam of Rs.12 crores in the construction of nine flyovers in Chennai. The CB-CID named 14 persons as accused in the case with Stalin as the first accused and Karunanidhi as the second. Within a few hours of the registration of the case, officers and men from the CB-CID arrested Karunanidhi. He was produced before Ashok Kumar around 4-30 a.m. and was remanded to judicial custody at the Central Prison, Chennai, till July 10. Some hours later, Stalin surrendered before the Judge.

Padmanabhan admitted that other than Acharyalu's complaint, the first information report and some files belonging to the Chennai Corporation, the CB-CID did not possess any document before the arrests were effected.

The Judge found fault with the CB-CID for the delay in sending the FIR to the court and the failure of the police officials to mention the exact time of filing the FIR. He was annoyed that the police did not heed his specific directive that Karunanidhi should be first medically examined at the Government General Hospital, Chennai, before being taken to the prison and that Stalin should be lodged only in the Chennai Central Prison. Karunanidhi was "a 78-year old man suffering from various ailments. Is your heart made of muscle or mud? What was the pressure on you?" he asked the police.

Judge Ashok Kumar minced no words again on July 4 when he heard the bail application of R.S. Sridhar, one of the accused. He reminded Public Prosecutor S. Gomathinayagam that the arrests of Karunanidhi and others made on June 30 had violated the Supreme Court's "requirements" regarding how an arrest should be carried out. The Investigating Officer had admitted that no accused had received any monetary benefit from the construction of the flyovers. The case was registered without making detailed inquiries or even a preliminary investigation. The Judge, therefore, told Gomathinayagam that under the circumstances, if the prosecution opposed Sridhar's bail plea and arguments were made on merits, "I might have to pass orders on merits which might hurt you and embarrass the government. That might also throw more light on certain things."

Gomathinayagam again got an earful on July 6 during a hearing on the bail applications of Stalin, and two other accused Ko.Si. Mani and K. Ponmudi, who were Ministers in the Karunanidhi government. Judge Ashok Kumar said he would dismiss all the bail applications if the Public Prosecutor could delineate the role of each accused and the pecuniary advantage he received. How would the prosecution be prejudiced if the accused were let on bail, he asked.

The Judge said that Acharyalu had made "a hasty complaint" for he had been appointed Corporation Commissioner only a week earlier. He, therefore, could not have known what had happened in 1998, 1999 and 2000 when a traffic improvement committee and a high-level steering committee were set up to ease traffic and the construction of flyovers was given to contractors. Nor could Acharyalu have known how the accused received financial benefit. The Commissioner had not consulted the engineers and councillors involved in the project.

The Judge disapproved of the manner in which the complaint was made, the FIR registered and the arrests carried out. The complaint was sent directly to the CB-CID bypassing procedures. The Judge said, "The complainant cannot choose his own investigating officer." When Gomathinayagam reminded him that he had, after all, remanded Stalin to judicial custody, the Judge replied that if he had not done so, "thousands of motives" would have been attributed to him.

At the end of the arguments, the judge granted bail to Stalin, Ko.Si. Mani, Ponmudi and four others. The State government filed criminal revision petitions in the Madras High Court, asking for expunction of some of Ashok Kumar's observations. The State government argued that the Judge had exceeded his jurisdiction when he went into the merits of the case while hearing the bail applications. His examining of the complainant and the investigating officer was illegal, it said. It objected to the Judge's remark that the FIR had been lodged with an ulterior motive.

The case had its echo in the Madras High Court. Justice Narayana Kurup faulted the Jayalalithaa Government, when it was on "a sticky wicket", for taking major policy decisions such as ordering the arrest of political rivals and bureaucrats. The 'sticky wicket' was a reference to quo warranto petitions in the Supreme Court, questioning under what authority she was holding office as Chief Minister when she had been disqualified from contesting the election. Justice Kurup asked, "Is it not proper and prudent to keep tempers cool ?"

He made these remarks when he and Justice A. Ramamurthy heard a petition from advocate K. Kanagaraj seeking a directive to the officials of the Central Prison, Chennai, to allow him to meet Karunanidhi detained there. Till the Supreme Court disposed of the matter, was not the position of the Chief Minister similar to that of a caretaker government, the Bench asked. It added, "We do not think that in a democracy there is any place for political vendetta."