Ashok Kumar remarks expunged

By A. Subramani

CHENNAI, AUG. 9. The Madras High Court today quashed the statements made by the complainant and the investigating officer before the Principal Sessions Judge, Mr. S. Ashok Kumar, in connection with the `mini-flyover scam case'.

Allowing a petition by the Government seeking to expunge certain remarks found in his order while granting bail to seven accused on July 6, Mr. Justice Malai. Subramanian also expunged some observations by the PSJ.

The PSJ had recorded the statements of the Corporation Commissioner, Mr. J.T. Acharyulu, and the CB-CID DSP, Mr. N. Padmanabhan, on July 3. Mr. Acharyulu had stated that he was not personally aware of the details of the `flyover scam'.

Mr. Padmanabhan had said no person named in the FIR derived any pecuniary advantage from the deal. He also admitted that he had not gone into all records pertaining to the scam before arresting the former Chief Minister, Mr. M. Karunanidhi.

But the Government filed a revision petition on July 9 seeking to expunge the remarks on the grounds that the PSJ had transgressed his jurisdiction, going into the merits of the case during bail proceedings. The High Court called for the PSJ's remarks on July 12.

In his order today, Mr. Justice Malai. Subramanian said recording of their statements was `unwarranted' and was likely to `harm or prejudice the prosecution'. In the absence of administration of oath to both the persons, their deposition could not be considered statements recorded under Section 164 of the CrPC. ``They are only voluntary disclosure of facts, and not extracted statements,'' the order read.

Insofar as the bail proceedings were concerned, the judge said there was absolutely no provision nor any justification for recording the statements of the complainant and the investigating officer.

Noting that Mr. Ashok Kumar's action was legally not sustainable, the order said it amounted to a `flagrant abuse of power' since the statements were not germane to decide the issue of bail. ``Judges must exercise self-restraint and should not make remarks uncalled for. They should not depart from the normal functioning while considering bail applications'', Mr. Justice Malai. Subramanian observed.

On the PSJ's remarks relating to the earlier petitions by councillors to the then Governor and the then Chief Minister, the judge said, ``before registration of a case any number of petitions can be filed before any authority, but they cannot form part of the FIR at all''.

Citing a Supreme Court ruling, he held that the action of Mr. Ashok Kumar was beyond his powers, and hence the recorded statements had to be necessarily quashed and the consequential remarks expunged.

On the PSJ's reference to the Supreme Court guidelines to be observed during arrests, Mr. Justice Malai. Subramanian said ``it is unfortunate that the PSJ has not properly understood the ruling of the SC with regard to arrests.''

The Supreme Court had not stated the arrests must be made in corruption cases only when there was a necessity for interrogating the accused which might lead to the recovery of any material object.

However, Mr. Justice Malai. Subramanian refused to interfere with the conditions laid down by the PSJ, in his bail orders such as advance intimation to Mr. M.K. Stalin, Chennai Mayor, in case he was to be summoned for interrogation.

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