- (1.) In view of the difference of opinion by two learned Judges and regard being had to the referral order dated 15.4.2015, (2015) 5 SCALE 183 , this appeal has been placed before us for consideration and decision. We are called upon in this appeal to decide whether the 4th respondent was authorised to represent the case of the prosecution in the High Court of Karnataka in the appeals filed by the accused persons against their conviction by the Special Court, and if he was not so authorised, whether there is necessitous warrant of criminal appeals to be heard afresh by the High Court.
(2.) The factual score exposited in this appeal has a history. The 5th respondent, Ms. J. Jayalalithaa, was the elected Chief Minister of Tamil Nadu from 1991 to 1996 and she was heading the political party called AIADMK. In 1996, she faced a political defeat at the hands of another political party, namely, DMK. Keeping in view the allegations pertaining to amassing assets disproportionate to the known sources of income, criminal proceedings were initiated against her and her associates, respondent nos. 6 to 8. The State of Tamil Nadu had constituted Special Courts for their prosecution. In pursuance of the constitution of Special Courts, C.C. No. 7 of 1997 was filed before the learned Special Judge, Chennai against the accused persons and they were chargesheeted for the offences punishable under Section 120B of the Indian Penal Code, 1860 (IPC) read with Section 13(1) and 13(2) of the Prevention of Corruption Act (for brevity, "the 1988 Act"). The constitution of the Special Courts was challenged before this Court in J. Jayalalitha v. Union of India, 1999 5 SCC 138, which upheld the constitution of the Special Court. In the said case, the two-Judge Bench observed thus:- "Something more. The legislature has enacted the Prevention of Corruption Act and provided for a speedy trial of offences punishable under the Act in public interest as it had become aware of rampant corruption amongst the public servants. While replacing the 1947 Act by the present Act the legislature wanted to make the provisions of the Act more effective and also to widen the scope of the Act by giving a wider definition to the term "public servant". The reason is obvious. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country. It is in the context of public interest that we have to construe the meaning of the word "necessary" appearing in Section 3. Considering the object and scheme of the Act and the context in which it is used it would mean requirement in public interest and cannot be said to be so vague as not to provide a good guideline. Thus the exercise of discretion by the Government under Section 3 has to be guided by the element of requirement in public interest." We have reproduced the said passage, as we would be saying something in this regard at a later stage.
(3.) As the expos of facts would further reveal, the trial continued before the Special Court but with the time rolling by, in 2001 elections, the AIADMK headed by the 5th respondent got elected and she was appointed as the Chief Minister of Tamil Nadu. Her appointment was called in question before this Court in B.R. Kapur v. State of Tamil Nadu and Another, 2001 7 SCC 231, wherein the majority speaking through Bharucha, J. (as his Lordship then was) held thus:- "54. We are satisfied that in the appointment of the second respondent as the Chief Minister there has been a clear infringement of a constitutional provision and that a writ of quo warranto must issue. xxxx xxxxx xxxxx 58. We are of the view that a person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164(1) read with (4) and cannot continue to function as such. 59. We, accordingly, order and declare that the appointment of the second respondent as the Chief Minister of the State of Tamil Nadu on 14-5-2001 was not legal and valid and that she cannot continue to function as such. The appointment of the second respondent as the Chief Minister of the State of Tamil Nadu is quashed and set aside." In pursuance of the aforesaid judgment, the 5th respondent, ceased to hold the office of the Chief Minister of Tamil Nadu w.e.f. 21.9.2001.;