Chennai: The state public prosecutor informed the Madras high court that revenue and police officials have obtained statements of 119 MLAs, currently at Koovathur in Kancheepuram district are free and safe and staying of their own volition.
Public prosecutor R. Rajarathinam made his submission when the habeas corpus petitions to produce MLAs M. Geetha and R.T. Ramachandran and to set them at liberty came up for hearing before Justices M. Jaichandran and T. Mathivanan.
Rajarathinam also produced statements obtained by a team of 11 officials from revenue and police department from the two MLAs. After hearing elaborate arguments from both sides, the bench reserved orders on petitions filed by V. Preetha and M.V. Elavarasan.
While Preetha sought a direction to the police to produce her cousin Geetha, MLA, from Krishnarayapuram Assembly constituency, before the court and set her at liberty, Elavarasan, a voter from Kunnam Assembly constituency, Perambalur district sought a direction to the police to produce Ramachandran, MLA from Kunnam constituency, before the court and set him at liberty.
Earlier, referring to the counter affidavit filed by the police, K. Balu, counsel for Elavarasan, submitted that so many issues were left out in the counter. The court has to look into various aspects whether all MLAs were free and safe in the resort, whether medical facilities were available to those MLAs suffering from ailments.
"We have apprehension that the public prosecutor's office is misdirected or mis-instructed. They have not brought out the full facts," Balu said adding that many "rowdy" elements, staying in and around the resort, were threatening local people, who had held agitations.
Also, reporters were attacked, their cell phones and cameras were snatched away. The counter affidavit is silent in all these aspects, Balu said urging the court to appoint a retired judge as an advocate commissioner to visit the place, meet the MLAs and file a report. "The court may also appoint an amicus curie to assist the court," Balu added.
Preetha contended that while counter affidavit states that Geetha was staying with her husband, the newspaper reports states that her husband complained that his wife was missing. Producing the statement recorded in the presence of the Tahsildars from the two MLAs, public prosecutor Rajarathinam submitted that they had given a statement that they were free and safe and they were staying in the resort of their own volition.
A team comprising one ADSP, four inspectors, four sub-inspectors and two tahsildars went to the resort on February 11 and gave questionnaires to 100 plus 19 MLAs (indirectly meaning 100 in one resort and 19 in another resort). They filled up the questionnaire in writing on their own stating that they were staying in the resort of their own volition.
When Sasikala met reporters yesterday, the MLAs were also present and they could have raised the issue and informed the media if they were in illegal custody, he added. Immediately Balu asked whether the Public Prosecutor was representing the state or Sasikala.
The bench pointed out that it has only limited scope in HCP to see as to whether the detenues were in illegal custody or not and it cannot assume the role of Governor by asking all the MLAs to come to the court and enquire of them, besides it cannot expand the scope under Article 226 or 482 of the Constitution.
Countering, advocate A.P. Suryaprakasam said he had already filed a petition to direct the police to ensure free movement of all MLAs.
When the bench again asked Public Prosecutor as to what he says about the suggestion made by Balu to appoint Advocate Commissioner and amicus curie, PP said he was opposing the suggestion. "If I accept the suggestion then I suspect my own police. We trust our officers". If the petitioners want let them file a public interest litigation. In the matter of HCP, the bench said the court has limited scope. If the court prima facie finds the detenues were in illegal detention it can issue directions.
PP’s dilemma shows he is not fit to continue: Experts
Going by the stand of the public prosecutor that he is in a dilemma as to from whom he has to get instructions due to split in the AIADMK, legal luminaries said he is ineligible to continue in his post.
During the course of hearing on the petitions to produce two MLAs, allegedly kept in illegal detention at a resort in Kuvathur, public prosecutor R. Rajarathinam said he had to get instructions. “Let them tell me with whom I have to get instructions. There is a party and two divisions in it. If I get instruction from one division, other division will object to it. If I agree for appointment of amicus curie, the other division will object”.
Legal luminaries say the public prosecutor should not continue to be in office at all, after making his mind so loudly clear that he is more political than judicial in discharging his duty.
His official position is very clear that he represents the government and there is no question of doubt about taking instruction from other division, they added.
The public prosecutor is an officer of the court. He sets the criminal law in motion in the court. He conducts prosecution in the court for the people. In the case of Habeeb Mohammad Vs state of Hyderabad, the Supreme Court has categorically stated that the duty of a public prosecutor is to represent not the police but the crown and this duty should be discharged fairly and fearlessly with a full sense of responsibility attaching to his position.
Former public prosecutor (Puducherry) A.P. Suryaprakasam, who was present in the court during the hearing, said the public prosecutor's statement in court shows that he appears to be under obligation to private individuals rather than the justice system”
A senior counsel, requesting anonymity said, “A public prosecutor should inspire confidence with his impartiality and objectivity in people whose interest he is representing. He has shown his ignorance of basic duties and nature of his status. He has shown his immaturity both in law and also in objectivity.”
