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Monday, February 27, 2017

Criminal Revision Case No.1582 of 2016 09-02-2017 B. Gunasekhar Babu..... PETITIONER/A.8 The State of A.P., rep. by Standing Counsel

THE HONBLE DR. JUSTICE B. SIVA SANKARA RAO        

Criminal Revision Case No.1582 of 2016

09-02-2017

B. Gunasekhar Babu..... PETITIONER/A.8  

The State of A.P., rep. by Standing Counsel for SPE & ACB Cases, Andhra
Pradesh, High Court of A.P., Hyderabad...... RESPONDENT  

Counsel for Petitioner: Sri Virupaksha Dattatreya
                         Gouda, Advocate

Counsel for Respondent :  Sri Udaya Bhaskara Rao,
                           SC for ACB & Spl. P.P.              
                       
<GIST:

>HEAD NOTE:  

?Cases referred

1. (1979) 3 SCC 4
2. (1977) 4 SCC 39
3. (1980) 1 SCC 250 (2-JB)
4. AIR 1971 SC 520
5. (2005) 1 SCC 568
6. (2012) 9 SCC 460


HONBLE Dr. JUSTICE B. SIVA SANKARA RAO      


CRIMINAL REVISION CASE No.1582 of 2016    


ORDER :

        The revision petitioner is the Inspector of Police, who is none
other than Accused No.8 in C.C.No.98 of 2013, an outcome of 
Crime No.15/RCO-ACB-KNR/2011, registered on 14.12.2011 for   
the offences punishable under Sections 13(1)(a) and (d) of the
Prevention of Corruption Act, 1988 (for brevity the Act) and
Sections 34 and 120-B of IPC, which is based on occurrence report
of the Deputy Superintendent of Police, Anti-Corruption Bureau
(ACB), Kurnool, from a surprise check conducted on 13.12.2011 by 
intercepting a TATA Victa vehicle belonging to the officials of Excise
Department and Rs.3,62,640/- seized from them under the cover of
panchanama and the source of money could not be explained by  
the officials as that was suspected to be the amount collected
towards bribe for favouring the owners of Wine Shops, in
registering the above crime and from the investigation, including on
the searches conducted and seizures effected, the ACB officials filed
the final report that was taken cognizance for the offences referred
supra by the learned Special Judge for Trial of SPE and ACB Cases,
Kurnool.

2.      It is thereafter on supply of copies to the accused and in the
course of hearing on charges, the petitioner/A.8 filed
Crl.M.P.No.254 of 2015 in C.C.No.98 of 2013 under Section 239
Cr.P.C., seeking for his discharge, saying that the investigation and
the cognizance order of the Special Judge are unsustainable and
baseless for there are no grounds to frame any charge against him,
in particular.

3.      It is after contest, by the impugned order dated 03.11.2015 in
Crl.M.P.No.254 of 2015 in C.C.No.98 of 2013, the learned Special
Judge dismissed the discharge petition and the same is the subject
matter in the present Criminal Revision Case.

4.      Before coming to the contentions in the grounds of revision
vis--vis oral submissions of the learned counsel for revision
petitioner/A.8 impugning the discharge petition dismissal order, it
is needful to mention the facts that are all covered by revision
petition vis--vis the discharge petition before the Court below.

5.      As per the prosecution version from the investigation of the
crime supra, A.1  K. Dayakar Reddy is the leader of a Liquor
Syndicate of Yemmiganur, Kurnool District, and he conspired with
A.2 to A.7 (viz., A.2  C.V. Raghava Reddy; A.3  G. Ravi Kumar;
A.4  K. Sankar Reddy; A.5  K. Virupaksha Reddy; A.6  Y.
Sreenivasulu Goud; and A.7 -  C. Sidda Ramappa) and operated the
Syndicate that was running 8 Wine Shops, out of which 7 are
situated in Yemmiganur Town and Mandal and one is at
Divandinne Village Yemmiganur Mandal. On 13.12.2011, the
aforesaid vehicle belonging to the Excise officials, on a surprise
check conducted in Kurnool Town, was intercepted and a sum of
Rs.3,62,640/- was seized by the ACB officials, who registered a
case and the investigation disclosed that Wine Shop Syndicate
leaders, who developed illegal nexus with the officials of Excise and
Police and others to win over the Law Enforcing Agency and to
overlook various omissions and commissions done by the Liquor
Syndicate and in the course of search on 17.12.2011 by the
Dy.S.P, ACB, Kurnool, at the office of Liquor Syndicate, bearing
Door No.1-1589, Gandhinagar, Yemmiganur, two Registers i.e.,
Books of Accounts of Liquor Syndicate for the period from
01.12.2011 to 14.12.2011 and 29.10.2011 to 16.12.2011 when
seized under Mediators Report, and on verification it disclosed that
A.1 to A.7 made payments to the Government officials, including
the Excise officials and that the Excise officials received a sum of
Rs.1,93,000/- towards mamool and the Police officials received
Rs.95,000/- towards mamool. The revision petitioner/A.8, who
worked as Inspector of Police, Yemmiganur, at that time, was paid
Rs.20,000/- by the Liquor Syndicate as monthly mamool, as
disclosed from the said two seized Registers, particularly entry in
page-12 of Register No.1, and the same is also supported by oral
evidence of one Sri B. Murali Krishna, PC-2635 (LW.19) and also by
the disclosure statements of A.1 to A.7 leading to discovery of facts.
The final report from the investigation filed against the revision
petitioner/A.8 is for the offences punishable under Sections 7,
13(2) r/w. 13(1)(a) and (d) of the Act and Sections 34 and 120-B of
IPC.

6.      The discharge petition of the revision petitioner/A.8 before the
learned Special Judge is with the contentions that the Books of
Accounts even shown contained C.I. mamool of Rs.25,000/- and
Police officials mamool of Rs.95,000/- among others, the ACB
officials failed to collect any material to link to it to show that the
said C.I. found in the Books of Accounts in any manner to array as
A.8 and the Books of Accounts are not legally admissible. The
statement of Sri Murali Krishna  LW.19 under Section 161
Cr.P.C., through investigation showing that the Liquor Syndicate of
A.1 to A.7 was paying monthly mamools to the Police and Excise
officials for not booking cases against them or that on 12.01.2011,
said Murali Krishna  LW.19 collected a sum of Rs.20,000/- from
the Liquor Syndicate of Yemmiganur, as per the instructions of the
revision petitioner/A.8 as bribe/mamool and handed over the same
to the petitioner/A.8 and said statement of LW.19 is also
inadmissible in evidence, as given by him in abetting the
commission of crime and he is also an offender and there is no
permission of the prosecution by tendering any pardon to an
accomplice, like LW.19, and the statement of LW.12  G.
Amareswarappa is only a hearsay and hence inadmissible in
evidence and that cannot be used for framing charges.

7.      The contentions in opposing the petition by the Public
Prosecutor, representing the ACB officials before the lower Court
are, that the investigation discloses of Rs.1,93,000/- towards
mamools received by the Excise officials, besides police officials
received Rs.95,000/- and the monthly mamool of Rs.20,000/- paid
to the revision petitioner/A.8 by the Liquor Syndicate of A.1 to A.7
as disclosed from the seized records of Liquor Syndicate, apart from
Rs.1,50,000/- paid to A.9 and his staff by the Liquor Syndicate.
The prosecution from the investigation cited 68 witnesses and filed
90 documents in support of their contention, all of which
establishes the complicity of revision petitioner/A.8 to the crime
and the statement of LW.19  Murali Krishna is clear, besides that
of LW.12  G. Amareswarappa, of the said Murali Krishna collected
Rs.20,000/- from the Liquor Syndicate on 12.12.2011 as per the
instructions of the revision petitioner/A.8 and handed over the
same to him on the same day. Later LW.19  Murali Krishna came
to know that the said amount received by petitioner/A.8 is in
allowing contraventions of Excise Laws and the Rules committed by
the Liquor Syndicate and the revision petitioner/A.8, being a Public
Servant, conspired with the Liquor Syndicate of A.1 to A.7, having
received the mamool of Rs.20,000/- is nothing but illegal
gratification to do official favour, thereby punishable for the
offences shown in the charge sheet and the discharge petition
deserves dismissal.

8.      It is from this, the learned Special Judge dismissed the
discharge petition by order dated 03.11.2015 with observations,
after discussing the legal position elaborately and from the rival
contentions with reference to the provisions and propositions, that
the contents of Books of Accounts show the C.I. mamool of
Rs.25,000/- and other Police official mamool of Rs.95,000/-,
statement of LW.19  Murali Krishna shows that on 12.12.2011 he
collected a sum of Rs.20,000/- from the Liquor Syndicate as per
the instructions of the revision petitioner/A.8 and handed over the
same to him and by then he does not know, but later came to know
of the same that the revision petitioner/A.8 collected the said
amount from the Liquor Syndicate as bribe and there is a prima-
facie case made out against the revision petitioner/A.8 therefrom,
besides the disclosure statements of A.1 to A.7, in support of it, of
the facts discovered and the charge sheet also refers the cell
phones and the incoming and outgoing call records obtained from
the Network Service Providers between A.1 to A.7 and A.8 in almost
regular touch with each other and thus, there is a prima-facie
accusation to sustain the cognizance taken to frame charges, for no
grounds to discharge the petitioner/A.8.

9.      In the revision, by reiterating the contentions referred supra,
learned counsel for the revision petitioner/A.8 referred to the
expression of 2-Judge Bench of the Apex Court in UNION OF INDIA
v. PRAFULLA KUMAR SAMAL , wherein on the scope of Section 227    
Cr.P.C. and the powers of the Special Judge, it was observed that
he shall not act as a trial Judge, but should weigh evidence
(material) and form an opinion only on the limited question of
whether prima-facie case is made out. Except in cases of grave
suspicion, which the accused is unable to explain, he is empowered
to be discharged in passing order of discharge by the Special
Judge. The word not a sufficient ground for proceeding against the
accused used in Section 227 of Cr.P.C., clearly shows that the trial
Judge is not a mere Post Office to frame charge at the behest of the
prosecution, but has to exercise his Judicial mind to the facts of
the case in order to determine, whether a case for trial has been
made out by the prosecution. For that conclusion, the Apex Court
in PRAFULLA KUMAR SAMAL (supra) also referred the earlier  
decision of it in STATE OF BIHAR v. RAMESH SINGH , which  
speaks of a strong suspicion against the accused enables the Court
to think of a ground for presuming that the accused committed an
offence, then it is not open for the Court to say that there is no
material to proceed with by framing charge, and what is required is,
if the material, if brought in evidence in chief, through respective
witnesses, without cross-examination and without rebuttal
evidence by the accused, if a ground for proceeding for trial, that is
more than sufficient to frame the charge.

10.     The other decision relied is another 2-Judge Bench of the
Apex Court in STATE OF RAJASTAN v. GURUCHARAN DAS        
CHADHA , which is a case under Prevention of Corruption Act,
referring to the scope of the Special Judge to frame charge where in
coming to the conclusion upholding the remand order of the High
Court, for reconsideration of framing of charge by the Apex Court, it
referred the Apex Courts expression in P. SIRAJUDDIN ETC. v.
STATE OF MADRAS , saying where the evidence relied on by the  
prosecution consisted of statements signed by the makers that
were shown obtained under inducement, threat or promise and
that were obtained even before the FIR was lodged, those were
observed as inadmissible and thereby cannot form the subject
matter of charge.

11.     Learned counsel for the revision petitioner/A.8 placed
reliance on a 2-Judge Bench decision of the Apex Court in P.
SIRAJUDDINs case (supra), wherein it was observed that in a case
under Prevention of Corruption Act, of preliminary enquiry before
lodging FIR, a necessity, if any, in affirming the Madras High
Court judgment and it was observed further, while referring to
chapter-XIV from Sections 160 to 173 of Cr.P.C., that those
provisions are aimed at securing fair investigation into the facts
and circumstances of a criminal case and clearly with an idea that
no one should be put to harassment of a criminal trial, unless there
are good and substantial reasons for holding it, thereby empowers
the Police Officer to release the accused from the custody, if no
sufficient evidence during investigation and even to file a final
report after completion of investigation. It was observed on facts
further that there can be no excuse for the Directorate of Vigilance
and Anti-Corruption for proceeding in the manner adopted in
preliminary enquiry before lodging the FIR. The omission to do so
ought not to have been allowed. The steps taken in the preliminary
enquiry were grossly irregular and unfair. In the said case, it was
also observed at para-26, in particular, that in our view, granting
of immunity to two persons, who are sure to be examined as
witnesses for prosecution, was highly irregular and unfortunate. It
was rightly pointed out by the High Court that neither Cr.P.C. nor
Prevention of Corruption Act recognises the immunity from
prosecution given under these assurances and that grant of pardon
was not in the discretion of the Police authorities.

12.     Coming to the other decision placed reliance is of the Madras
High Court in SIRAJUDDIN in AIR 1968 MADRAS 117, which is  
none other than the expression covered in appeal before the Apex
Court in SIRAJUDDINs case (supra) that no way requires further
repetition, but for to consider whether in the case on hand, is there
any person supposed to have been shown as accused or co-accused  
was accorded immunity by police by simply examined them as  
witnesses to let off them from their complicity, if any.

13.     In fact, the 3-Judge Bench expression of the Apex Court in
STATE OF ORISSA v. DEBENDRANATH PADHI , observed on the        
scope of pre-charge enquiry and consideration of material by
referring Section 227 of Cr.P.C., that the record of the case used
therein to mean the record of the case and the documents
submitted therewith, which relate to the case and the documents
referred in Section 209 Cr.P.C. by the prosecution and hearing the
submissions of the accused used in the Section to mean from the
record of the case filed by the prosecution with the documents
submitted by the prosecution. What is required therefrom is that
there should be a prima-facie accusation to frame the charge. It is
observed that on the face of the material, if the accusation
sustains, charge can be framed.

14.     Even in AMITH KAPOOR v. RAMESH CHANDER , a 2-Judge        
Bench of the Apex Court, referring to the decision in RAMESH
SINGH of 1977 (supra) observed that, the Court after considering
the record of the case i.e., with the documents submitted by the
prosecution, the final report and after hearing the parties, shall
frame charge, if there are grounds for presuming that the accused
committed the offence. Such presumption is not a presumption of
law and, as such, what is required is satisfaction of the Court in
relation to the existence of constituents of offence and the facts
leading to that offence are sine-qua-non for exercising of such
discretion. The Court at that stage, in framing a charge under
Section 228 Cr.P.C., is not concerned with the proof, but merely a
strong suspicion that the accused has committed offence. The final
test of guilt is not to be applied at the stage of framing of charge,
the presumption that the accused has committed the offence, if
there is a prima-facie material as contemplated by Section 228
Cr.P.C. to be drawn for framing charge. Thus, the legal position is
very clear that a strong suspicion of commission of an offence by
the accused from the prima-facie accusation and not ultimate result
in the case from the full dressed trial is required in framing of
charge.

15.     Once such is the position of law, coming to the facts, leave
about the statement of LW.12  G. Amareswarappa, the statement
of LW.19  Murali Krishna about his collection of the amount of
Rs.20,000/- at the instance of the petitioner/A.8 from A.1 to A.7
and handing over the same to the petitioner/A.8, what he stated
was, the purpose he does not know by then and it is later he came
to know of the same is an illegal gratification/bribe, in the form of
monthly mamool. If he deposed the same, it is a part of
appreciation of evidence on admissibility, for nothing shown prima-
facie inadmissible. There is nothing even from said version to say
the police granted him immunity to save any of his complicity to
apply the ratio in SIRAJUDDINs case (supra).

        Further, there is no basis to say that LW.19 is an accomplice
or  co-accused and could have been charge sheeted, as what he
stated is, he simply collected the amount at the instance of the
petitioner/A.8 from A.1 to A.7 and handed over the same to the
petitioner/A.8, without knowing the purpose and the
consequences, but only later he came to know of the same. If that
is the issue, it is difficult to say that he is an accomplice or
co-perpetrator of the crime.

16.     Further, once the entries in the Books of Accounts are
relevant and admissible, leave about the evidentiary value of it, as
held by the learned Special Judge, all these constitute prima-facie
accusation to frame charge. The contention that all those are with
no basis and are ultimately insufficient to sustain the accusation, if
put to trial, are premature to decide.

17.     In view of the above, there are no grounds to interfere with
the impugned discharge dismissal order dated 03.11.2015 passed
by the learned Special Judge.

18.     Accordingly, the Criminal Revision Case is dismissed. As a
sequel, miscellaneous petitions pending, if any, in this revision
shall stand closed.
____________________________________    
Dr. JUSTICE B. SIVA SANKARA RAO    
09.02.2017

Criminal RC.No.183 of 2017 08-02-2017 V.Naveen Goud, S/o V.Narsaiah, H.No.6-3-26/5/1, Premnagar, Khairatabad, Hyderabad.,....Petitioner The State of Telanagana,, rep, by Public Prosecutor, through P.S.Karimnagar-III Towen Po.llice SStation, Karimnagar,....Respondent

HONBLE DR.JUSTICE B.SIVA SANKARA RAO        

Criminal RC.No.183 of 2017

08-02-2017

V.Naveen Goud, S/o V.Narsaiah, H.No.6-3-26/5/1, Premnagar, Khairatabad,
Hyderabad.,....Petitioner

The State of Telanagana,, rep, by Public Prosecutor, through P.S.Karimnagar-III
Towen Po.llice SStation, Karimnagar,....Respondent

Counsel fore the petitioner: SDri M.Pavan Kumar Aditya

Counsel for the respondent: Addl.Public Prosecutor

<Gist:

>HEAD nOTE:  

?CITATIONSD:

1. AIR (34) 1947 Privy Council 67
2. 2006 (crl.L.J.1109
3.s(2015) 11 Supreme Court Cases 31
4. AIR 2001 sc sc 1158


HONBLE DR.JUSTICE B.SIVA SANKARA RAO        

Crl.R.C.No.183 of 2017

ORDER :

        The revision petitioner is the accused in Sessions Case No.130
of 2015 on the file of the District & Sessions Judge at Karimnagar for
the offences punishable under Sections 498-A, 302 and 201 I.P.C.,
which is outcome of Crime No.149 of 2014 of III Town Police
Station, Karimnagar.  After investigation, the Police filed charge-
sheet, which was taken cognisance by the learned committal
Magistrate and the case was committed to the Court of Sessions and
after framing of charges from the pre-charge hearing, trial
commenced.  It is in the course of trial, P.Ws.1 to 9 were examined,
on behalf of the prosecution, and Exs.P1 to 13 and Exs.M.O.1 were
marked.
2.      As per the charge-sheet, L.Ws.13 and 14 were cited as
mediators to the so called disclosure panchanama of the accused
leading to alleged discovery of facts within the meaning of Section 27
of the Indian Evidence Act.  The prosecution not chosen to examine
the said mediators and after the closure of the prosecution evidence,
the accused was examined under Section 313 Cr.P.C. and after
defence evidence, the matter is while coming for arguments, the
prosecution filed the application under Section 311 Cr.P.C. in
Crl.M.P.No.1515 of 2016 to recall P.W.9 - I.O. for exhibition of the
so called mediators panchanama.  Since the same was allowed on
09-01-2017 by the impugned order, the accused maintained the
revision.  The impugned order reads that as per the version of the
prosecution, due to inadvertence, mediators panchanama of the
disclosure of accused leading to discovery of facts was not exhibited
and sought to accept the recall of P.W.9 as it is essential.  The accused
contended saying that the so-called panchanama is hit by Section 25
of the Indian Evidence Act and is inadmissible.  The Court ultimately
held in the impugned order by referring to the respective contentions
that the relevancy of panchanama can be decided from the arguments
of both sides and at present marking the confession panchanama in the
evidence is essential in ordering for recall of P.W.9.
3.      The contentions in the grounds of revision vis--vis oral
submissions of the learned counsel for the accused revision petitioner
are that the Sessions Judge ought to have seen that there is no
admissible portion within the meaning of Section 27 of the Evidence
Act to mark and exhibit the so called confessional panchanama which
could have been accepted through mediators and their
non-examination is with no explanation and the impugned orders
saying no prejudice would be caused to the accused is no answer to
allow when the same is hit by Section 25 of the Evidence Act and
thereby sought for allowing the revision setting aside the impugned
order.
4.      The counsel drawn attention of this Court to the expression of
the Privy Council in the case of Kottaya Vs. Emperor  the relevant
portion of the judgment at para 10 speaks that the condition necessary
to bring Section 27 of the Evidence Act as an exception to Section 25
of the Act though not artistically worded to exhibit certain
supplements made by the accused in police custody to prove it is to be
shown of discovery of a fact in consequence of information received
from the person of any offence in the custody of a police officer
sought to depose by a witness of so much of information as relates
distinctly to the fact thereby discovered that may be proved as if a fact
is actually discovered in consequence of information of the accused in
custody, there must be some guarantee to afford to the information as
true and that can be safely allowed to be given in evidence to that
extent of the information admissible depending upon the exact nature
of fact to discover to which such information is required to relate; the
fact discovered cannot be equivalent to the object produced as fact
discovered embraces the place from which the object is produced
beyond knowledge of accused as to this, and the information given
must relate distinctly to this fact, like the fact that the knife is
concealed in the house of the informant to his exclusive knowledge of
the seizure from the disclosure to prove as very relevant.
5.      There is no dispute on the proposition.  In the other decision
placed reliance in Siddique Vs. State of Kerala  where particularly at
para 10 observations in Kottaya supra reproduced.
6.      Coming to the other decision in Indra Dalal Vs. State of
Haryana  wherein considering the scope of Sections 25 to 27 of the
Evidence Act from para 22 by reproduction of Section 27 held that
this Section is in the form of proviso to Sections 25 and 26 of the Act
which makes it clear that so much of such information which is
received from a person accused of any offence, in the custody of a
police officer, which has lead to discovery of any fact, may be used
against the accused.  Such information as given must relate distinctly
to the fact discovered.  By quoting the above principle on facts held
the information provided by the appellant-accused in the confession
statement not lead to any discovery thereby the contention is not
covered by Section 27, but hit by Section 25 of the Evidence Act.
7.      No doubt, from the above propositions what is the disclosure
made by accused while in police custody if leads to discovery of a fact
earlier not known but for from the disclosure which is within the
knowledge of the accused there is an assurance to the fact to relate as
true in carving out as an exception to any disclosure or confession
before police is otherwise inadmissible under Section 25 to make it
admissible as per Section 27 of the Evidence Act.  Even Section 162
Sub-Section (2) Cr.P.C. speaks that Section 162 has no application to
the Section 27 of the Evidence Act.  It is also the principle behind it
saying no one can make a disclosure which incriminates him, unless
there is truth, in which event, to consider from such a disclosure
whether is it a confession or not leads to a fact discovered to make use
of to that extent.  Thus, only so much of information whether amounts
to confession or not as relates distinctly to the fact discovered is
admissible and not a rest as per the settled expressions.  Thus, the fact
discovered not only it mean the object produced but also to embrace
the place from which it was produced and knowledge of the accused
about it.  Further, the use of word fact discovered is not confined to
object produced as it is not the object, but from it what is discovered
of the exclusive knowledge of accused and the disclosure of it and the
discovery of the fact leading from the disclosure.
8.      Once such is the case whether the impugned order any way
requires interference is the question.  No doubt in the order impugned
it speaks the recall of P.W.9 to exhibit the disclosure statement, it
does not mean to mark the entire statement and it does not mean
accused has no right to raise objection on admissibility and relevancy
of what is hit by Section 25 and what is saved by Section 27 for the
Court to hear and consider.  The other contention is that the mediators
could have been examined rather than recall of P.W.9 who was
already examined being I.O. to exhibit the disclosure statement.
9.      In fact, for a disclosure statement by accused while in police
custody to the extent leading to discovery of any fact within the
meaning of Section 27 of Evidence Act, no mediators panchanama is 
even required, as such, any mediators panchanama drafted of what is
disclosed in their presence and what is discovered pursuant thereto the
disclosure, there is no incumbent duty on the prosecution to examine
the so called mediators.  The Public Prosecutor is having absolute
discretion to examine which witness among the prosecution witnesses 
cited to prove the case and if he gets any doubt that any of the
witnesses not supporting the truth or exhibiting hostility to the truth,
there is no compulsion to examine even such witness and seek 
permission for cross-examination under Section 154 of the Evidence
Act invariably as it is one of the choices with prosecution to give up.
Thus, the non-examination of the mediators cannot be a ground to say
that P.W.9  I.O. cannot be recalled that too when it is the disclosure
made before him during investigation of the case as a Police Officer
and leading to discovery of fact from the disclosure to exhibit this
statement to the admissible portion under Section 27 of the Act by
shunning from exhibiting non-admissible portion hit by Section 25 of
the Act.  In fact, the accused are not helpless if at all they choose to
examine the mediators, to call as defence witnesses, apart from any
request to court by showing such necessity to call for as court witness
with right of cross-examination to both sides.
10.     Subject to these observations, while upholding the order of the
lower Court by giving liberty to accused to raise any objection on
admissibility and relevancy on the scope of Sections 27 and 25 of the
Evidence Act to mark subject to objection and to decide ultimately of
the admissible and relevant portion only to consider under Section 27
of the Evidence Act, which recourse is proper to adopt as laid down
by the Apex Court in Bipin Shantilal Panchal v. State of Gujarat .
11.     Accordingly, the Criminal Revision Case is disposed of.  No
order as to costs.
12.     Consequently, Miscellaneous Petitions pending, if any, shall
stand closed.

_________________________________    
DR.JUSTICE B.SIVA SANKARA RAO      
08th February, 2017

CRIMINAL PETITION No.16208 of 2014 30-01-2017 Buddi Chandra Mohan, S/o.late B.Krishna Murthy Petitioner The State of Andhra Pradesh,

HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY          

CRIMINAL PETITION No.16208 of 2014  

30-01-2017

Buddi Chandra Mohan, S/o.late B.Krishna Murthy  Petitioner
       
The State of Andhra Pradesh, represented by its Standing Counsel for ACB Cases,
High Court, Hyderabad  Respondent  

Counsel for the petitioner:Sri V. Pattabhi

Counsel for the respondent: Sri Udaya Bhaskara Rao,
                             Special Standing Counsel for ACB

<GIST:

>HEAD NOTE:  

?  CASES REFERRED:    
1)(2012) 13 SCC 614
2)(2013) 3 SCC 330
3)(2013) 9 SCC 293
4)(2013) 10 SCC 591
5)(2000) 2 SCC 636
6)2014 (2) ALD (Crl.) 617
7)2004 (1) ALD 620
8)(2009) 1 SCC 180
9)(1999) 1 SCC 31
10 (2006) 4 SCC 57
11)(2016) 1 SCC 560
12)2014(1)ALD(Cri)120
13)2010 (3) ALD 452 (DB)
14)2012 (2) ALD 425
15)2016 (1) ALT (Crl.) 350 (A.P)
16)(2010) 12 SCC 497
17)(2011) 7 SCC 167
18)AIR 1996 SC 901
19)2000 (1) ALD (Crl.) 362 (SC) = 2000 (1) SCR 417
20)(2007) 1 SCC 1
21)(2013) 16 SCC 728
22)(1984) 2 SCC 183
23)2004 CriLJ 3892
24)(2014) 16 SCC 807
25)1999 CriLJ 3696
26)2014 LawSuit (Chh) 232 = 2014 CriLJ 4701
27)1998 (2) ALD (Crl.) 359 (SC)

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        
CRIMINAL PETITION No.16208 OF 2014    
ORDER:
        This petition is filed under Section 482 Cr.P.C seeking to
quash the proceedings in C.C.No.69 of 2013 on the file of the
Special Court for trial of ACB cases in Rayalaseema Region,
Kurnool.
2       The facts leading to the filing of the present petition are,
briefly, as follows:
        The petitioner joined the Government service on 05.12.1978
as Probationary Deputy Tahsildar and got promotions from time to
time.  The petitioner worked as Special Grade Deputy Collector,
Srisailam Project with effect from 01.03.2009 to 28.10.2009. The
petitioner retired from service on attaining the age of
superannuation on 31.12.2010. On receiving credible information,
that the petitioner has acquired disproportionate assets, while
functioning as a public servant, the Inspector of Police, ACB
registered a case in Crime No.11/RCA-KUR/2009 dated  
21.11.2012, against the petitioner, for the offences punishable
under Sections 13 (2) r/w 13 (1) (e) of Prevention of Corruption Act,
1988 (the P.C.Act).  After completion of investigation, the
Investigating Officer laid charge sheet on 12.11.2013 against the
petitioner for the aforesaid offences. The learned Special Judge has
taken cognizance of the offences under Sections 13 (2) r/w 13 (1)
(e) of the P.C.Act and numbered the same as C.C.No.69 of 2013.
As per the allegations made in the charge sheet, the petitioner has
acquired disproportionate assets worth of Rs.1,18,11,883/- to the
known sources of his income.
3       The first and foremost contention of the learned counsel for
the petitioner is that this court can quash the criminal proceedings
at any stage.  On the other hand, the learned standing counsel for
the respondent  ACB contended that the trial was commenced
and as many as 88 witnesses were examined on behalf of the
prosecution and hence this is not the stage to quash the
proceedings against the petitioner.
4       To substantiate the argument, the learned counsel for the
petitioner has drawn the attention of this Court to the following
decisions.
        Satish Mehra vs. State (NCT of Delhi) & Another  wherein the
Honble apex Court at Para No.14 held as follows:
    14. The power to interdict a proceeding either at the threshold
or at an intermediate stage of the trial is inherent in a High Court
on the broad principle that in case the allegations made in the
FIR or the criminal complaint, as may be, prima facie do not
disclose a triable offence, there can be reason as to why the
accused should be made to suffer the agony of a legal proceeding
that more often than not gets protracted. A prosecution which is
bound to become lame or a sham ought to be interdicted in the
interest of justice as continuance thereof will amount to an abuse
of the process of the law. This is the core basis on which the
power to interfere with a pending criminal proceeding has been
recognised to be inherent in every High Court.
        Rajiv Thapar vs. Madan Lal Kapoor  wherein the Honble
apex Court at Para No.30 held as follows:
    30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to determine
the veracity of a prayer for quashment raised by an accused by
invoking the power vested in the High Court under Section 482
CrPC:
    30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the material is
of sterling and impeccable quality?
    30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the charges
levelled against the accused i.e. the material is sufficient to reject
and overrule the factual assertions contained in the complaint i.e.
the material is such as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as
false?
    30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted
by the prosecution/complainant?
    30.4. Step four: whether proceeding with the trial would result
in an abuse of process of the court, and would not serve the ends
of justice?
    30.5. If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to quash
such criminal proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides doing justice
to the accused, would save precious court time, which would
otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear that the
same would not conclude in the conviction of the accused.
As per the principle enunciated in the above cited cases, High
Court, at any stage, can quash the proceedings against the
accused if the material produced by him clearly rules out the
allegations made against him and such allegations would not end
in conviction. The Honble apex Court reiterated and reaffirmed the
principle enunciated in the cases cited supra in Prashant Bharti
vs. State (NCT of Delhi)  and Umesh Kumar vs. State of Andhra
Pradesh .
5       On the other hand, the learned standing counsel for the ACB
has drawn the attention of this Court to the ratio laid down in
G.Sagar Suri vs. State of U.P  wherein the Honble apex Court at
para No.9 held as follows:
    9. In State of Karnataka v. L. Muniswamy {(1977) 2 SCC 699}
this Court said that in the exercise of the wholesome power under
Section 482 of the Code the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the
court or that the ends of justice require that the proceedings are
to be quashed.
As per the principle enunciated in the case cited supra, this Court
can quash the criminal proceedings by exercising inherent
jurisdiction under Section 482 Cr.P.C. to prevent abuse of process
of law and thereby to secure the ends of justice.  Having regard to
the facts and circumstances of the case and also the principle
enunciated in the cases cited supra, I am unable to accede to the
contention of the learned standing counsel that the present
petition is liable to be dismissed in limine in view of
commencement of trial.
6       The second contention of the learned counsel for the
petitioner is that Inspector of Police is not entitled to investigate
into the offence punishable under Section 13(e) of the P.C. Act.  He
further submitted that the investigating officer who was working as
Sub-Inspector of Police was officiated as Inspector of Police and
hence on that ground also the investigation conducted by the
investigating officer is not legally sustainable. In such
circumstances, forcing the petitioner to face the rigour of criminal
trial is nothing short of abuse of process of law.
7       On the other hand, the learned standing counsel for the ACB
submitted that there is no bar to investigate into the matter by the
Inspector of Police in view of the provisions of the P.C. Act.  To
substantiate the argument, the learned counsel for the petitioner
has drawn the attention of this Court to the ratio laid down in
V.Suryanarayana vs. State  wherein this Court at Para No.17 held
as follows:
        17. The learned Senior Counsel for the petitioner placed
reliance upon Section 17(c) of the P.C.Act which contemplates
that a Deputy Superintendent of Police or a Police Officer of
equivalent rank alone is entitled to investigate any offence
punishable under the P.C.Act in residuary circumstances not
covered by Sections 17(a) and 17(b). Where the case is covered by
Section 17(a), the question of Section 17(c) being applicable does
not arise. Indeed, Section 17 of the P.C.Act is mandatory.
However, where Sri G.Sudhakar is an Inspector of Police of the
Delhi Special Police Establishment, Section 17(a) of the P.C.Act
empowers him to conduct the investigation. I therefore reject the
contention of the learned Senior Counsel for the petitioner that
the investigation is bad being in violation of Section 17 of the
P.C.Act.
As per the principle enunciated in the case cited supra, the
Inspector of Police is competent to investigate into the ACB cases,
in view of Section 17 of the P.C. Act.   The question raised in the
case on hand is identical to the issue decided in the case cited
supra. Having regard to the facts and circumstances of the case
and also the principle enunciated in the case cited supra, I am
unable to accede to the contention of the learned counsel for the
petitioner that the investigation conducted in this case is not
legally sustainable.
8       The learned counsel for the petitioner vehemently submitted
that after receipt of final report, the Government can initiate
departmental proceedings instead of prosecuting the petitioner;
therefore, continuation of criminal proceedings against the
petitioner is not sustainable. To substantiate the argument, the
learned counsel for the petitioner placed reliance on the Memo
No.623/Spl.C/A1/2008-1 dated 15.10.2008. The relevant portion
of the said Memo is extracted hereunder:
2.      The Government, after careful examination, have accepted
the recommendations of the Group of Ministers. The following
instructions are issued in respect of certain recommendations
relating to ACB / Vigilance cases:
(i)     .
(ii)    After receipt of the Final report of the Investigating
Agency, the Department concerned shall examine further within
one month and take a decision as to entrust the case:
        1.      either for prosecution; or
        2.      for departmental action; or
        3.      for placing the accused officer on his        
                        defence before the Tribunal for                        
                        Disciplinary Proceedings; or
        4.      for closure of the case and seek the advice            
                        of A.P. Vigilance Commission.
A perusal of the above Memo, at a glance, demonstrates that after
filing the final report, the Government may resort to any one of the
modes indicated above.
9       It is the further contention of the contention of the learned
counsel for the petitioner that on 12.2.2014 the then Chief
Minister of the Composite State of Andhra Pradesh ordered
departmental enquiry against the petitioner and that fact was
suppressed by the prosecution agency by withholding concerned
file.  The learned counsel for the petitioner has drawn attention of
this Court to Page No.67 of the material papers which reads as
follows:
        The following file is approved:
Sl.No.
File No. & CMF No.
Subject
Endorsement
1
48523/Vig.III(1)/2009
Disproportionate assets
case registered by ACB
against Sri B.
Chandramohan, former
Spl. Collector, SSP,
Kurnool and now retired
from service  to initiate
disciplinary action.
Ordered for
departmental
enquiry on para
278 (A) and (B)
on page 71 n.f.
10      The fact remains that the investigating officer filed charge
sheet in the year 2013.  The Special Court has taken cognizance of
the offence in the year 2013 itself. In the reply to the counter filed
on behalf of the respondent, the petitioner pleaded that his
application under the Right to Information Act to issue copies of
the Note File in Rc. No.48523/Vig.III(1)/2009 was rejected and this
Court may call for the Note File.  The petitioner filed a petition
seeking permission of the Court to permit him to take additional
grounds and the same was allowed.
      In Uma Engineering Company v Chief Technocal Examiner
(CE), Irrigation Wing , it was held at para Nos.15, 16 and 17
(Manupatra) as follows:
15. A plain reading of Section 8 (Freedom of Information Act,
2002) would show that certain types of information inter alia, the
minutes or records of advise including legal advice, opinions or
recommendations made by any officer of a public authority
during the decision making process prior to the executive
decision or policy making is not treated as information shall be
exempted of the disclosure. ("Information" as defined by Clause
(d) of Section 2).
16. Therefore, the information sought by the petitioner, i.e.,
alleged note orders issued by the Hon'ble Minister squarely fall
within Section 8(e) of the Act and therefore, the petitioner cannot
claim or enforce freedom of information under the Act.
17. There is yet another reason to conclude that the petitioner
cannot insist on the supply of note orders to him. In the system
of administration followed in Indian sub continent (which is
credited Lord Macual), before any order is passed, the matter is
generally considered on various levels i.e., from the level of a
Clerk or Assistant, Head Clerk or Superintendent, the Junior
Management Cadre Officer, Middle Management Cadre Officer,
top Bureaucrats, Hon'ble Ministers, Every one contributes to the
decision making process. All the notings made in that file at
different levels cannot be called decisions as such. The
collectivity of opinion and reasons therefore will ultimately
manifest in the form of a decision which is communicated to a
person. A person at whose instance a decision was taken, is no
doubt entitled to receive and to be communicated a copy of the
order containing the decision. Such person, however cannot
claim any right from any of the notings in the file. Therefore,
office notings in departmental files do not create any rights and
such notings cannot be enforced in a Court of Law.
In the absence of production of the original file, it is not fair on the
part of this Court to express any opinion with regard to the validity
or otherwise of the same.  While exercising power under Section
482 Cr.P.C. there is no need to call for the records, in view of the
above decision.
11      The learned standing counsel for the respondentACB
submitted that the petitioner has produced a part of the alleged
note file.  He further submitted that notings on the file itself will
not create any right in favour of the petitioner. That is only an
internal correspondence of the Government.  To substantiate the
same, he has drawn the attention of this Court to the ratio laid
down in Sethi Auto Service Station vs. Delhi Development
Authority  wherein the Honble apex Court at para Nos.14 to 17
held as follows:
    14. It is trite to state that notings in a departmental file do not
have the sanction of law to be an effective order. A noting by an
officer is an expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use and
consideration of the other officials of the department and for the
benefit of the final decision-making authority. Needless to add
that internal notings are not meant for outside exposure. Notings
in the file culminate into an executable order, affecting the rights
of the parties, only when it reaches the final decision-making
authority in the department, gets his approval and the final order
is communicated to the person concerned.
    15. In Bachhittar Singh v. State of Punjab {AIR 1963 SC 395},
a Constitution Bench of this Court had the occasion to consider
the effect of an order passed by a Minister on a file, which order
was not communicated to the person concerned. Referring to
Article 166(1) of the Constitution, the Court held that order of the
Minister could not amount to an order by the State Government
unless it was expressed in the name of the Rajpramukh, as
required by the said article and was then communicated to the
party concerned. The Court observed that business of State is a
complicated one and has necessarily to be conducted through the
agency of a large number of officials and authorities. Before an
action is taken by the authority concerned in the name of the
Rajpramukh, which formality is a constitutional necessity,
nothing done would amount to an order creating rights or casting
liabilities to third parties. It is possible, observed the Court, that
after expressing one opinion about a particular matter at a
particular stage a Minister or the Council of Ministers may
express quite a different opinion which may be opposed to the
earlier opinion. In such cases, which of the two opinions can be
regarded as the order of the State Government? It was held that
opinion becomes a decision of the Government only when it is
communicated to the person concerned.
    16. To the like effect are the observations of this Court in
Laxminarayan R. Bhattad v. State of Maharashtra {(2003) 5 SCC
413}, wherein it was said that a right created under an order of a
statutory authority must be communicated to the person
concerned so as to confer an enforceable right.
    17. In view of the above legal position and in the light of the
factual scenario as highlighted in the order of the learned Single
Judge, we find it difficult to hold that the recommendation of the
Technical Committee of DDA fructified into an order conferring
legal right upon the appellants.
As per the principle enunciated in the cases cited supra, no right
will be conferred on the person unless and until he receives the
official communication of the final order from the Government. It is
not the case of the petitioner that he received the official
communication from the Government with regard to initiation of
departmental enquiry and also closing of criminal prosecution
against him.
12      The learned counsel for the petitioner submitted that the
Government, having taken a decision to initiate departmental
enquiry against the petitioner, ought not to have continued the
criminal proceedings against him.  To substantiate the argument,
the learned counsel for the petitioner has drawn the attention of
this Court to the ratio laid down in State of Bihar v. Suprabhat
Steel Ltd.  and State of Jharkhand vs. TATA Cummins Ltd
wherein the Honble apex Court held that the notifications meant
for implementing the industrial policy of the State Government
cannot override the incentive policy.
        In Lloyd Electric and Engineering Limited vs. State of
Himachal Pradesh  the Honble apex Court at para No.13 held as
under:
        13. The High Court, with great respect, has gone wrong in
not appreciating the background of the case and the decision of
the Council of Ministers to extend its own Industrial Policy
announced in 2004 and the tax concession beyond 31.03.2009.
Once the Council of Ministers takes a policy decision, the
implementing Department cannot issue a notification contrary to
the policy decision taken by the Government. The High Court also
erred in analyzing and understanding the Notification dated
18.06.2009 as if it introduced the CST concession @ 1 per cent
with effect from the date of issuance of notification.
        In Mohd. Aleemuddin vs. State of A.P  a learned single Judge
of this Court held that the competent authority or the Government
having refused to grant sanction to prosecute the Government
employee is not legally justified to accord sanction basing on the
same material subsequently.
13      In the above cases, the State Government has taken a policy
decision, but the implementing department issued a notification
contrary to the policy of the Government.  Therefore, the Honble
apex Court held that the notification issued by the implementing
department has no legal sanctity.  The Memo dated 15.10.2008
cannot be equated with the policy decision of the Government in
the public interest. It is not the case of the petitioner that the ACB
issued the notification contrary to the Memo of the Government
dated 15.10.2008.  The facts of the case on hand are different from
the facts of the cases in Suprabhat Steel Ltd., TATA Cummins Ltd.,
Mohd. Aleemuddin and Lloyd Electric and Engineering Limited
supra. Hence, those decisions are no way helpful to the petitioner.
14      Even assuming but not conceding that the Government has
taken a decision to initiate departmental enquiry, whether the
same is having any binding force or not?
15      The learned standing counsel for the ACB submitted that
there is no specific recital in the alleged note file to drop the
criminal proceedings against the petitioner and in such
circumstances, the relief sought by the petitioner cannot be
granted. To substantiate the argument, the learned standing
counsel has drawn the attention of this Court to the ratio laid
down in K.Srinivasulu v. Government of Andhra Pradesh  wherein
this Honble Court at para Nos.19 and 20 held as follows:
19.     G.O.Ms.No.25 dated 15.01.2009 does not even state that
sanction was being refused. All that the G.O. records is that the
Government had decided to initiate a departmental enquiry
against the 4th respondent. Both the Learned Additional Advocate
General and Sri P. Gangaiah Naidu would submit that, since the
Government had directed that disciplinary proceedings be
initiated against the 4th respondent, it must be inferred that the
Government had rejected the request of the Anti-Corruption
Bureau for grant of sanction.
20.     There must be a clear recital in the sanction order that
sanction, for prosecution under the Prevention of Corruption Act,
1988, is being accorded or refused. The memo dated 29.04.2009
merely reiterates the order issued in G.O.Ms.No.25 dated
15.01.2009 and both these proceedings do not explicitly state
that sanction for prosecution of the 4th respondent, under the
Prevention of Corruption Act, 1988, was being refused. It is
evident, therefore, that the impugned order also suffers from non-
application of mind.
16      There is no specific recital in the note file dated 12.02.2014
refusing sanction or dropping criminal proceedings against the
petitioner. The learned standing counsel for ACB further submitted
that the identical question fell for consideration before this Court
in K.Rama Krishna Raju vs. Government of A.P. , wherein this
Court held at para Nos.12 to 14 as follows:
12.     Sri N. Ravi Prasad, would place reliance on the memo
No.623/Spl.C/A1/2008-1 dated 15.10.2008 wherein the
Government had accepted the recommendations of a group of
Ministers, and had issued certain instructions in respect of
certain recommendations relating to ACB/Vigilance cases. In
clause (ii) thereof it is noted that, after receipt of the final report
of the investigating agency, the Department concerned should
further examine, within one month, and take a decision whether
to entrust the case either for prosecution or for departmental
action or for placing the accused officer on his defence before the
Tribunal for Disciplinary Proceedings or for closure of the case
and seek the advice of the A.P. Vigilance Commission. According
to the Learned Counsel, the said memo permitted the Department
either to prosecute or to take departmental action or to initiate
disciplinary proceedings against the officer by having an enquiry
conducted by the Tribunal for Disciplinary Proceedings; the
respondents were entitled only to choose one amongst the three
i.e., either to prosecute or to initiate disciplinary action or to take
disciplinary proceedings before the Tribunal for Disciplinary
Proceedings and, as they had earlier chosen to refer the matter to
the Tribunal for Disciplinary Proceedings, they could not now
grant sanction to prosecute the petitioner under the Prevention of
Corruption Act, 1988. This contention is only to be noted to be
rejected.
13.     The Memo dated 15.10.2008 is more in the nature of
administrative/executive instructions issued by the Government
under Article 162 of the Constitution of India. The requirement of
according sanction is under Section 19 of the Prevention of
Corruption Act, 1988. Such an exercise of statutory power cannot
be curtailed or negated by executive/administrative instructions.
If the rules are silent on any particular point, the Government
can fill up gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed. (Sant Ram
Sharma v. State of Rajasthan {AIR 1967 SC 1910}; Union of India
vs. K. P. Joseph {(1973) 1 SCC 194}; Dhananjay Malik v State of
Uttaranchal (2008) 4 SCC 171). The Government cannot,
however, supersede statutory rules by administrative
instructions. No executive instructions can be issued, or be read
as, contrary to the statutory provisions in force.
14.     Even otherwise, the petitioner cannot seek a mandamus
for enforcement of administrative/executive instructions issued
by the Government. Ordinarily, the High Court would not issue a
writ of mandamus to enforce administrative instructions/
guidelines not having statutory force, and which do not give rise
to any legal right in favour of the petitioner. (J.R. Raghupathy v.
State of A.P {AIR 1988 SC 1681}; Union of India v. S.L. Abbas
{(1993) 4 SCC 357}. I see no reason, therefore, to accept the
petitioners contention that, since the Government had referred
the matter to the Tribunal for Disciplinary Proceedings, it must be
presumed to have refused to accord sanction for prosecution of
the petitioner.
        In Akunuri Haranadha Babu Rao vs. State  this Court held
as follows:
        Again the State Government issued another Memo  
No.623/SPL.C/2008-2, dated 15.10.2008. The relevant portion of
the said Memo reads as follows:
        After detailed deliberations with the representatives of the
Associations, the concerned Heads of Departments/Departments  
on the issues raised by the representatives of the Confederation,
the Group of Ministers have submitted a report containing
recommendations on the issues for consideration of the
Government.  The Government, after careful examination, have
accepted the recommendation of the Group of Ministers, that
while evaluating the disproportionate assets, the existing margin
of 10% may be enhanced to 20%. (underlined by me)
        From a perusal of the above Memos at a glimpse, it is
manifest that the State Government issued the Memos for the
benefit of the Government employees, who involved in ACB cases.
The Government servant is entitled to the benefit of the said
Memos in respect of disproportionate assets as given below:
                20% margin              from 13.2.1989 to 27.02.2003
                10% margin              from 28.2.2003 to 14.10.2008
                20% margin              from 15.10.2008 onwards.
        The learned senior counsel Sri T.Niranjan Reddy
strenuously submitted that the petitioner is entitled to claim the
benefit of the Memo, which was in force as on the date of the
alleged offence.  The FIR was registered on 16.03.1999 on which
date the first Memo, dated 13.02.1989 was in existence.  The
State Government accorded permission for prosecution of the
petitioner on 26.11.2007.  As on the date of according permission
i.e. 26.11.2007 and filing of the charge sheet i.e. 29.02.2008, the
second memo was in existence.  If the argument of the learned
counsel for the petitioner is accepted, the Court has to quash the
proceedings extending the benefit, to the petitioner, covered
under Memo dated 13.02.1989.  The State Government accorded  
permission for prosecution of the petitioner by scrupulously
following the procedure contemplated under Section 19 of the Act
and also keeping in mind the 2nd memo referred supra.
        It is a settled principle of law that the State Government
may issue administrative or executive instructions by way of
Memos and G.Os in pursuance of the power conferred on it under
Article 162 of the Constitution of India.  It is needless to say that
Memos or G.Os issued by the State Government must be in  
consonance with the provisions of the Act.  The Government
cannot, however, supersede the statutory provisions by way of
administrative instructions.  No instructions can be issued or be
read contrary to the statutory provisions in force.  In the instant
case, the criminal proceedings are initiated against the petitioner
under Section 13 (2) r/w 13 (e) of the Act.  It is not mentioned in
these Memos that the instructions have been issued by exercising
power under a specific provision of the Act. Utmost the Memos
may be treated as guidelines for ACB officials, without any
statutory force.  The Parliament enacted Prevention of Corruption
Act, 1988 by repealing the Act II of 1947. Even assuming without
conceding that the State Government has power to make
necessary Rules under the Act, but under any circumstances
those Rules should not run contrary to the provisions of the Act.
17      There is no material on record to establish that the State
Government has communicated the decision of dropping of the
criminal proceedings against the petitioner to ACB.  The facts of
the case on hand are almost identical to the facts of the cases in
K.Srinivasulu, K.Rama Krishna Raju and Akunuri Haranadha
Babu Rao cited supra.  Therefore, the point urged by the learned
counsel for the petitioner is no more res integra.  Having regard to
the facts and circumstances of the case, I am of the considered
view that the Memo is no way helpful to the petitioner for quashing
the criminal proceedings.
18      The predominant contention of the learned counsel for the
petitioner is that taking of cognizance of offence without sanction
from competent authority is not legally sustainable.  The learned
standing counsel for the ACB strenuously submitted that by the
time of taking cognizance, the petitioner retired from service;
therefore, no sanction is required to prosecute the petitioner.
19      The crime was registered against the petitioner on
26.10.2009. The petitioner retired from service on attaining the age
of superannuation on 31.12.2010. Charge sheet was filed on
12.11.2013.  Subsequently the Court has taken cognizance of the
offence.  The fact remains that by the time of taking cognizance,
the petitioner was not in service.  The Court has taken cognizance
of offence nearly three years after the retirement of the petitioner.
20      The crucial question that falls for consideration is whether
sanction is a condition precedent to prosecute a retired employee.
The learned counsel for the petitioner has drawn the attention of
this Court to the ratio laid down in Louis Peter Surin vs. State of
Jharkhand  wherein the Honble apex Court at Para No.3
observed as follows:
        3. We see from the judgments (Mahendra Lal Dua v. State
of Bihar, (2002) 1 SCC 149 and Ramanand Chaudhary v. State of
Bihar, (2002) 1 SCC 153) cited by Mr. Vikas Singh that they
proceed on facts which are akin to the present one. In both cases
sanction was granted after a delay of thirteen years while the
officials concerned were still in service under the State
Government. We find in the matter before us that the appellant
had superannuated in the year 1997 and the cognizance had
been taken by the Special Judge four years thereafter in a matter
arising out of an F.I.R. registered in April 1984 even though the
request for sanction had been rejected by the State Government
on two occasions. In view of these peculiar facts we are of the
opinion that the initiation of proceedings against the appellant
was not justified.

In the above decision, the apex Court observed that the initiation
of proceedings was not justified as the State Government twice
refused sanction for prosecution of the appellant therein while he
was in service.
21      The learned counsel for the petitioner as well as the learned
standing counsel for the respondentACB have placed reliance on
the ratio laid down in Chittaranjan Das v. State of Orissa  wherein
the Honble apex Court at Para Nos.12, 13 and 14 held as follows:
    12. Sanction is a device provided by law to safeguard public
servants from vexatious and frivolous prosecution. It is to give
them freedom and liberty to perform their duty without fear or
favour and not succumb to the pressure of unscrupulous
elements. It is a weapon at the hands of the sanctioning authority
to protect the innocent public servants from uncalled-for
prosecution but not intended to shield the guilty.
    13. Here in the present case while the appellant was in service
sanction sought for his prosecution was declined by the State
Government. The Vigilance Department did not challenge the
same and allowed the appellant to retire from service. After the
retirement, the Vigilance Department requested the State
Government to reconsider its decision, which was not only
refused but the State Government while doing so clearly observed
that no prima facie case of disproportionate assets against the
appellant is made out. Notwithstanding that the Vigilance
Department chose to file a charge-sheet after the retirement of the
appellant and on that the Special Judge had taken cognizance
and issued process.
    14. We are of the opinion that in a case in which sanction
sought for is refused by the competent authority, while the public
servant is in service, he cannot be prosecuted later after
retirement, notwithstanding the fact that no sanction for
prosecution under the Prevention of Corruption Act is necessary
after the retirement of the public servant. Any other view will
render the protection illusory. Situation may be different when
sanction is refused by the competent authority after the
retirement of the public servant as in that case sanction is not at
all necessary and any exercise in this regard would be action in
futility.
22      In the cases cited supra, the Government declined to grant
sanction when the accused was in service. In the instant case, the
Government has not declined to grant sanction for prosecution of
the petitioner at any point of time.  Therefore, the facts of the case
on hand are entirely different from the facts of the case cited
supra.  Hence the above two decisions will no way improve the
case of the petitioner.
23      The learned counsel for the petitioner also placed reliance on
the ratio laid down in R.Balakrishna Pillai v. State of Kerala .
This decision deals with the scope of Section 197(1) Cr.P.C. but not
Section 19 of the P.C. Act.
24      The learned counsel for the petitioner further placed reliance
on V.Suryanarayana Case cited supra, wherein a learned single
Judge of this Court held that sanction is necessary to prosecute
even a retired government employee basing on G.Sagar Suri vs.
State of U.P.  and Prakash Singh Badal vs. State of Punjab .
G.Sagar Suri Case is not arising out of the provisions of the P.C.
Act. As per the principle enunciated by the Honble apex Court in
Prakash Singh Badal case, no sanction is necessary if the public
servant in question had ceased to be a public servant as on the
date of taking of cognizance.
        In Ajoy Acharya v. State Bureau of Investigation against
Economic Offences , the Honble apex Court after referring the
decisions in R.S. Naik v A.R.Antulay  and Prakash Singh Badal
Case, at para No.14 (Manupatra) held as follows:
14. The judgments referred to in paragraph 13 above, were relied
upon by the Courts below to reject the contention advanced at the
hands of the Appellant, that sanction was essential before the
Appellant could be prosecuted. It would be pertinent to mention,
that extracts from the judgments referred to in paragraph 13
reproduced above, deal with two pointed situations. Firstly,
whether sanction before prosecution is required from each of the
competent authorities entitled to remove an accused from the
offices held by him, in situations wherein the accused holds a
plurality of offices. The second determination was in respect of
the requirement of sanction, in situations where the accused
no longer holds the office, which he is alleged to have
abused/misused, for committing the offence(s) for which he
is being blamed. In answer to the first query, it has
unambiguously been concluded, that if an accused holds a
plurality of offices, each one of which makes him a public servant,
sanction is essential only at the hands of the competent authority
(entitled to remove him from service) of the office which he had
allegedly misused. This leads to the clear inference, that other
public offices held by the accused wherein an accused holds a
plurality of offices, are irrelevant for purposes of obtaining
sanction prior to prosecution. On the second issue it was
concluded, that sanction was essential only if, at the time of
taking cognizance, the accused was still holding the public
office which he had allegedly abused.  
(emphasis supplied)
25      At this juncture, the learned standing counsel for ACB has
placed reliance on the following judgments to contend that no
sanction is necessary to prosecute a retired Government employee
under the provisions of the P.C. Act.
        M.China Gopala Krishna vs. State of A.P  wherein this Court
at para No.14 held as under:
        14. The learned counsel for the appellant Sri P. Lakshman
Rao could not lay his hands on any decision of the Supreme
Court distinguishable from the above decision. The evidence
available on record indicates that the appellant retired on 31-07-
1993 and the Court took cognizance of the offence on 01-09-
1993. Since the retirement of the appellant was much prior to the
date of the Court taking cognizance of the offence, there is no
necessity for any sanction to prosecute the officer. I therefore, do
not find any force in the contention of the counsel for the
appellant in this regard. This point is accordingly answered
against the appellant.
        State of Punjab vs. Labh Singh  wherein the Honble apex
Court at Para No.9 held as under:
        9. In the present case the public servants in question had
retired on 13.12.1999 and 30.04.2000. The sanction to prosecute
them was rejected subsequent to their retirement i.e. first on
13.09.2000 and later on 24.09.2003. The public servants having
retired from service there was no occasion to consider grant of
sanction Under Section 19 of the POC Act. The law on the point is
quite clear that sanction to prosecute the public servant for the
offences under the POC Act is not required if the public servant
had already retired on the date of cognizance by the court. In S.A.
Venkataraman v. State 1958 SCR 1040 while construing
Section 6(1) of the Prevention of Corruption Act, 1947 which
provision is in pari materia with Section 19(1) of the POC Act, this
Court held that no sanction was necessary in the case of a person
who had ceased to be the public servant at the time the court was
asked to take cognizance. The view taken in S.A.
Venkataraman (supra) was adopted by this Court in C.R.
Bansi v. State of Maharashtra (1970) 3 SCC 537 and
in Kalicharan Mahapatra v. State of Orissa  (1998) 6 SCC 411
and by the Constitution Bench of this Court in K.
Veeraswamy v. Union of India  (1977) 3 SCC 440. The High
Court was not therefore justified in setting aside the order passed
by the Special Judge insofar as charge under the POC Act was
concerned.
        State of Kerala v. Padmanabhan Nair  wherein the Honble
apex Court at para No.6 held as under:
        6. The correct legal position, therefore, is that an accused
facing prosecution for offences under the P.C. Act cannot claim
any immunity on the ground of want of sanction, if he ceased to
be a public servant on the date when the court took cognizance of
the said offences. So the High Court was at any rate wrong in
quashing the prosecution proceedings in so far as they related to
offences under the P.C. Act.
        Neelam Bhardwaj vs. State of Chhattisgarh  wherein the
High Court of Chhattisgarh at Para No.11 held as follows:
        11. From the aforesaid enunciation of law, it is quite vivid,
if the accused has ceased to be public servant at the time, when
the Court is called upon to take cognizance of offence alleged to
have been committed by him as public servant. Section 19 of
Prevention of Corruption Act, requiring previous sanction for
prosecution is not attracted.
        Kalicharan Mahapatra v. State of Orissa  wherein the
Honble apex Court at Para No.14 held as follows:
        14. The result of the above discussion is thus: A public
servant who committed an offence mentioned in the Act, while he
was a public servant, can be prosecuted with the sanction
contemplated in Section 19 of the Act if he continues to be a
public servant when the court takes cognizance of the offence.
But if he ceases to be a public servant by that time the court can
take cognizance of offence without any such sanction. In other
words, the public servant who committed the offence while he
was a public servant, is liable to be prosecuted whether he
continues in office or not at the time of trial or during the
pendency of the prosecution.
As per the principle enunciated in the cases in M.China Gopala
Krishna, Labh Singh, Padmanabhan Nair, Neelam Bhardwan and  
Kalicharan Mahapatra cited supra, if a Government employee
retired from service, as on the date of taking of cognizance of
offence, no sanction is required as contemplated under Section 19
of the P.C. Act.  Therefore, the decision in V.Suryanarayana is no
way helpful to the case of the petitioner.
26      As stated supra, in the instant case, the crime was registered
against the petitioner on 26.10.2009. The petitioner retired from
service on attaining the age of superannuation on 31.12.2010.
Charge sheet was filed on 12.11.2013.  Therefore, the petitioner
was not in service as on the date of taking cognizance of offence by
the Court. Having regard to the facts and circumstances of the
case and also the principle enunciated in cases M.China Gopala
Krishna, Labh Singh, Padmanabhan Nair, Neelam Bhardwan and    
Kalicharan Mahapatra cited supra, I am unable to accede to the
contention of the learned counsel for the petitioner that criminal
prosecution is not maintainable against the petitioner for want of
sanction.
27      The various points urged by the petitioner are not
sustainable either on facts or in law.  The petitioner failed to
establish that continuation of criminal proceedings against him
would amount to abuse of process of law which warrants
interference of this Court by exercising jurisdiction under Section
482 Cr.P.C. The petition lacks merits and bona fides. Hence
Criminal petition is liable to be dismissed.
28      In the result, the Criminal Petition is dismissed.
Consequently, miscellaneous petitions pending in this Criminal
Petition shall stand closed.
__________________________  
T. SUNIL CHOWDARY, J.  
     Date: 30.01.2017

CRIMINAL PETITION No.15912 of 2016 05-1-2017 A.Sambaiah Nayak and another Petitioners The State of Telangana, represented by its Special Public Prosecutor Respondent

HONOURABLE SRI JUSTICE T.SUNIL CHOWDARY          

CRIMINAL PETITION No.15912 of 2016  

05-1-2017

A.Sambaiah Nayak and another  Petitioners  

The State of Telangana, represented by  its Special Public Prosecutor
Respondent

Counsel for the petitioners: Sri T.Pradyumna Kumar Reddy


Counsel for the respondent: Sri V.Ravi Kiran Rao,
                              Learned Special Standing Counsel for the ACB,
Telangana

<GIST:

>HEAD NOTE:  


?  CASES REFERRED:    

1)(2008) 9 SCC 800
2)(2014) 10 SCC 814
3)1958 CriLJ 1217
4)(2014) 4 SCC 392

THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY        

CRIMINAL PETITION No.15912 of 2016  

ORDER:
        This Criminal Petition is filed under Section 482 Cr.PC
seeking to quash the order dated 18.10.2016 passed in
Crl.M.P.No.457 of 2016 in C.C.No.5 of 2016 on the file of the Court
of the Principal Special Judge for SPE & ACB Cases-cum-IV
Additional Chief Judge, City Civil Court, Hyderabad, wherein and
whereby the reliefs sought by the petitioners to (1) return the
original sale deeds, link documents and pattadar passbooks, which
are shown as item Nos.8 to 11 in the charge sheet, to the
petitioners and (2) direct the Sub-Registrar Offices to permit sale
transactions in respect of the above documents, were rejected.
2.      The contention of Sri T. Pradyumna Kumar Reddy, the
learned counsel for the petitioner is three fold: 1) the trial Court
failed to consider that the second petitioner is the owner of the
property covered under item Nos.8 to 11, 2) the trail Court, without
considering the scope of Criminal Law Amendment Ordinance
1944 (hereinafter referred to as, the Ordinance), dismissed the
petition on assumptions and presumptions, and 3) if the order
passed by the trial Court is allowed to stand, certainly, it would
amount to abuse of process of law; therefore, it is liable to be set
aside. Per contra, Sri V. Ravi Kiran Rao, the learned Special
Standing Counsel for the ACB, State of Telangana, submitted that
the application filed by the petitioners is not maintainable either
on facts or in law.  He further submitted that the petitioners are
asking for release of the sale deeds, which per se cannot be
ordered, without seeking relief of withdrawal of the attachment.
The learned Special Standing Counsel, with humility, submitted
that on some occasions the learned Special Judges are passing
orders in a routine manner without considering the scope and
object of the Ordinance as if the petitions for release of the
properties attached under the Ordinance are maintainable under
Sections 451 and 457 of Cr.PC.
3.      This court has come across the orders wherein the learned
Special Judges allowed the petitions filed under Sections 451 and
457 Cr.PC only, directing release of the properties attached under
the provisions of the Ordinance, which are not in accordance with
law.
4.      In order to appreciate the rival contentions, it is apt to refer
the historical background of the Ordinance and other relevant
Statutes.  Any Ordinance promulgated under Article 123 of the
Constitution of India shall have the same force and effect as an Act
of Parliament; the said Ordinance shall cease to operate at the
expiration of six weeks from its reassembly unless approved by
both the Houses of Parliament. It should be noted that the
Ordinance was promulgated by virtue of the powers conferred
under Section 72 , as set out in the ninth schedule to the
Government of India Act, 1935. Section 72 emphasises that, any
ordinance made under this section is subject to the like
disallowance as an Act passed by the Indian legislature, and
may be controlled or superseded by any such Act. Therefore,
unless and until it is repealed or superseded by the Parliament, it
should be in force. Sections 18(3) and 8(2) of the Indian
Independence Act refer to the continuation of the Government of
India Act, 1935.  Latter, by virtue of Article 372(1) of the
Constitution of India, the provisions of the Ordinance have been in
force, however, with certain modifications. The Ordinance was
promulgated with an avowed object of preventing disposal or
concealment of money or other property procured by means of
offences specified in the Schedule to the Ordinance (Scheduled
Offences) and to confiscate the same in favour of the Government.
To put it in a different way, the Ordinance was promulgated in
order to discourage public at large, more particularly bureaucrats,
to acquire or procure property or money by indulging in Scheduled
Offences. This Ordinance is one of the preventive measures aimed
at curbing the menace of corruption. The Ordinance, which is a
substantive in nature, is dealing with the money or other property
suspected to be tainted with the Scheduled Offences, pending
disposal of the trial and it is in force as on today.  There is no
conflict between the provisions of the Ordinance and that of the
provisions of the Code of Criminal Procedure, as both of them are
independent and operate in different spheres.
5.      Section 2 of the Ordinance deals with two aspects  (1) the
Scheduled Offences, and (2) the date of termination of the criminal
proceedings instituted under the Ordinance.  Section 3 of the
Ordinance enables the State or Central Government, as the case
may be, to make an application to the Special Court for
attachment of the money or other property of any person
suspected to have been procured the same by committing any of
the Scheduled Offences.  Sub-section (3) of Section 3 of the
Ordinance mandates that the application shall be accompanied by
an affidavit stating the grounds for belief, that the accused has
committed the Scheduled Offence.  The affidavit shall also disclose
the location of the property and other necessary details. A perusal
of Sub-section (2) of Section 3 of the Ordinance clearly
demonstrates that the learned Special Judge has to follow the
procedure as contained in Order XXVII of the Code of Civil
Procedure, 1908 (Suits by or against Government or public officers
in their official capacity), while dealing with the proceedings for an
order of ad interim attachment.
6.      Section 4 of the Ordinance enumerates the ad interim
attachment.  Sub-section (1) of Section 4, mandates that if there
exists prima facie ground the learned Special Judge has to pass the
order of ad interim attachment without delay in order to prevent
the disposal or concealment of the property or money liable for
confiscation. Otherwise, the learned Special Judge, by assigning
reasons, can refuse to order ad interim attachment. The learned
Special Judge, before passing the order of ad interim attachment,
can examine the deponent.
7.      In view of Sub-section (2) of Section 4 of the Ordinance, the
learned Special Judge shall issue a notice to the party, whose
money or other property is being attached, along with necessary
copies of documents directing him to show cause, within a
prescribed date, why the order of ad interim attachment should
not be made absolute.  Similarly, a show cause notice has to be
issued to the persons likely to claim title or interest in the
property, to submit their objections, if any, as postulated under
Sub-section (3) of Section 4 of the Ordinance.  Notwithstanding
receipt of the notice, any person, claiming interest in the money or
other property or any part thereof, can file objections for ad interim
attachment of the property in question, in view of sub-section (4) of
Section 4 of the Ordinance. The order of ad interim attachment
shall be passed by the Special Court even before issuing notice to
the affected party as provided under Sub-section (1) of Section 4 of
the Ordinance unlike under Order XXXVII Rule 5 of CPC wherein
an attachment order is passed only after issuing notice to the
respondent.
8.      Section 5 is heart and soul of the Ordinance, which deals
with the procedure for investigation of objections filed under
Section 4 of the Ordinance.  Section 5 of the Ordinance provides a
detailed procedure to be followed by the Special Court to safeguard
the interest of the accused as well as the persons claiming title or
interest over the attached property. The ad interim order of
attachment can be made absolute if no cause much less justifiable
cause is shown for withdrawing attachment, in view of Sub-section
(1) of Section 5 of the Ordinance.  If a cause is shown or an
objection is made under Section 4, the learned Special Judge has
to investigate into the same by following the procedure and in
doing so; the learned Special Judge has all the powers of a Civil
Court in adjudicating a suit.  The underlying object of Sub-section
(2) of Section 5 of the Ordinance is that the learned Special Judge
has to conduct the investigation in such a manner as if it is a title
suit.  If the accused or any other person has filed objection petition
against the order of ad interim attachment, the burden is on the
objector to establish, by adducing oral and documentary evidence,
that the property attached was acquired by him in a lawful manner
and by the time of ad interim attachment, he has interest in the
property. A perusal of sub-section (2) of Section 5 of the
Ordinance, to my mind, indicates that the objector has to prove his
case by preponderance of probabilities. After affording reasonable
opportunity, as provided under Sub-section (3) of Section 5, the
learned Special Judge can make the ad interim attachment
absolute or can withdraw the same. Sub-section (6) of Section 5 of
the Prevention of Corruption Act, 1988 (the PC Act) enjoins that
while trying an offence under the PC Act, the learned Special Judge
shall have all the powers and functions exercisable by a District
Judge under the Ordinance.  In view of introduction of Section 29
of the PC Act, 1988, the applicability of the Ordinance is widened.
9.      Section 6 of the Ordinance enjoins the learned Special Judge
to order attachment of the property in the hands of the transferee,
which was transferred by the accused with a mala fide intention.
Sub-section (2) of Section 6 of the Ordinance manifests that if the
transferee fails to prove that he purchased the property in good
faith and with lawful consideration, the same can be attached.
Section 7 of the Ordinance deals with execution of the orders of
attachment.  The learned Special Judge can exercise powers of an
executing court so far as attachment of property is concerned.
Even though this section does not unveil in so many words, the
learned Special Judge can exercise the power under Order XXI
Rule 42 Attachment in case of decree for rent or mesne profits or other
matter, amount of which to be subsequently determined, Rule 44
Attachment of agricultural produce, Rule 45 Provisions as to agricultural
produce under attachment, Rule 49 Attachment of partnership property,
Rule 50 Execution of decree against firm, Rule 51 Attachment of
negotiable instruments, Rule 52 Attachment of property in custody of
Court or public officer, and Rule 54 Attachment of immovable property of
CPC.
10.     Any person whose property has been attached is entitled to
make an application for release of the property by furnishing
sufficient security as contemplated in Section 8 of the Ordinance.
On such application is being filed, the learned Special Judge has to
satisfy himself objectively with regard to sufficiency of the security,
before releasing the property. The word sufficient, as mentioned
in the Section, qualifies security equivalent to the market value of
the property by the time of its release. The learned Special
Standing Counsel for ACB submitted that the Special Court cannot
release the property simply on furnishing security without taking
into consideration the market value of the property and other
relevant aspects. To substantiate his contention, he has drawn the
attention of this Court to paragraph No.7 of the decision in N.
Naveen Kumar v. State of A.P. , wherein it was held as follows:
7. The High Court has rightly noted that it is the present
value of the properties which is of relevance and not the
value of the assets at the relevant point of time of seizure.
We find no substance in the plea of the appellants as
canvassed in this appeal. It is open to the appellants to
participate in the auction for sale of the properties in
question as and when held.

As per the principle enunciated in the above cited case, the Special
Court, while releasing the property attached, has to take into
consideration the value of the property at the time of release, but it
is neither the value of the property at the time of seizure, nor the
consideration as mentioned in the sale deed.
11.     Section 9 of the Ordinance deals with administration of the
attached property.  Sub-section (2) of Section 9 enables the learned
Special Judge to appoint Receiver to administer the properties
under attachment. Order XL Rule 2 Remuneration, Rule 3 Duties,
Rule 4 Enforcement of Receivers Duties, and Rule 5 When Collector
may be appointed as Receiver of CPC are made applicable in the
matter of appointment of Receiver in respect of the properties
attached under the Ordinance.  The very purpose of incorporation
of Section 9 of the Ordinance is to safeguard the properties under
attachment and income generated thereon till closure of the
criminal proceedings.
12.     Section 10 of the Ordinance deals with duration of
attachment in force. Unless it is withdrawn, an order of ad interim
attachment would be in force for a period of three months, prior to
1988 and it is one year with effect from 09.9.1988, by virtue of
Section 29 of the PC Act. After expiry of the period of one year, the
concerned authority has to make an application, for extension of
the order of ad interim attachment, subject to non-taking of
cognizance of offence by the Special Court. If, for any reason, the
Authority fails to file petition seeking extension of ad interim
attachment, within the period of one year, the same will cease
automatically. When such contingency arises, the Authority has no
option except to file a fresh application for re-attachment of the
property. Once the Special Court takes cognizance of offence, the
attachment will continue till termination of the criminal
proceedings. Any person, aggrieved by the order of attachment
passed under Sections 4, 6, 8 or 9 of the Ordinance, can prefer
appeal before the High Court within thirty days from the date of
the order, as provided under Section 11 of the Ordinance.
13.     Another interesting aspect to be considered here is whether
the provisions of the Limitation Act are applicable to the Ordinance
or not.  In State of M.P. v. Anshuman Shukla , the Honble apex
Court, while dealing with the scope of the Limitation Act, with
regard to extension of period of limitation in filing appeals under
any special or local law, observed in paragraph Nos.21, 23 and 24
as follows:
21. The Limitation Act, 1963 is the general legislation on the law
of limitation. Section 5 of the Limitation Act provides that an
appeal may be admitted after the limitation period has expired, if
the appellant satisfies the court that there was sufficient cause for
delay.
22.  
23. This Court in Mukri Gopalan case examined the question of
whether the Limitation Act will apply to the Kerala Buildings
(Lease and Rent) Control Act, 1965. While holding that the
appellate authority under the Kerala Act acts as a court, it was
held that since the Act prescribes a period of limitation, which is
different from the period of limitation prescribed under the
Limitation Act, and there is no express exclusion of Sections 4 to
24 of the Limitation Act, in the above Lease and Rent Control Act,
thus, those sections shall be applicable to the Kerala Act.
    24. While examining the provisions of Section 29(2) of the
Limitation Act, it was observed: (Mukri Gopalan case, SCC p. 15,
para 8)
    8. ... A mere look at the aforesaid provision
shows for its applicability to the facts of a given
case and for importing the machinery of the
provisions containing Sections 4 to 24 of the
Limitation Act the following two requirements have
to be satisfied by the authority invoking the said
provision:
    (i) There must be a provision for period of
limitation under any special or local law in
connection with any suit, appeal or application.
    (ii) The said prescription of period of limitation
under such special or local law should be different
from the period prescribed by the Schedule to the
Limitation Act.
It was further held that if the above two conditions are satisfied,
then the following implications would follow: (Mukri Gopalan case,
SCC pp. 15-16, para 9)
    9. If the aforesaid two requirements are
satisfied the consequences contemplated by Section
29(2) would automatically follow. These
consequences are as under:
    (i) In such a case Section 3 of the Limitation Act
would apply as if the period prescribed by the
special or local law was the period prescribed by
the Schedule.
    (ii) For determining any period of limitation
prescribed by such special or local law for a suit,
appeal or application all the provisions
containing Sections 4 to 24 (inclusive) would
apply insofar as and to the extent to which
they are not expressly excluded by such special
or local law.
    (emphasis supplied)

14.     A period of limitation is prescribed for the validity of the ad
interim attachment.  The period of limitation is also prescribed to
prefer an appeal challenging the orders passed under Sections 4,
6, 8 and 9 of the Ordinance. No provision is made in the Ordinance
excluding the application of the Limitation Act. In such
circumstances, the provisions of the Limitation act are applicable
to the Ordinance, which is a special law, in view of Sub-section (2)
of Section 29 of the Limitation Act.
15.     In the light of the principle enunciated in Anshuman Shukla,
I am of the considered view that the provisions of the Limitation
Act with regard to extension of period of limitation viz., Sections 4
to 24 especially Section 5 of the Limitation Act are applicable to the
Ordinance, which is a special law.
16.     A duty is cast on the learned Special Judge, by virtue of
Section 12 of the Ordinance, to record a specific finding as to the
amount of money or the value of other property procured by the
accused by means of the Scheduled Offences, while convicting the
accused. Consequently, the learned Special Judge has to spell out
the money and the value of the property to be confiscated in favour
of the State, in the operative portion of the judgment.
17.     A specific procedure is prescribed, by way of Section 13 of
the Ordinance, for disposal of attached property upon termination
of criminal proceedings.  Sub-section (1) of Section 13 casts a duty
on the Agent to the Government to report the Special Court about
the result of the appeal or revision, as the case may be, along with
the copy of the judgment.  Basing on such report, the learned
Special Judge shall forthwith withdraw the order of attachment of
property, or release the security given in lieu of such attachment,
in view of Sub-section (2) of Section 13.  If the accused is
convicted, the learned Special Judge shall pass the order forfeiting
the money or other property attached in favour of the Government
as provided under Sub-section (3) of Section 13.  Sub-sections (4)
to (6) of Section 13 deals with the procedure to be followed for
disposal of the attached properties.  While dealing with the scope
of Section 13, the High Court of Panta in Sonamati Devi v The
State , observed as follows:
Even when the final judgment or order of the criminal Court
is one of acquittal, there will not be termination of the
attachment, unless pursuant to Section 13 the District
Judge has passed orders in that behalf.  When the order of
acquittal is final the District Judge shall withdraw any
orders of attachment of property made in connection with
the offence.  Unless and until the District Judge passes
orders withdrawing the order of attachment, the attachment
as provided in Section 10 will continue in force.

18.     The Honble apex Court in Biswanath Bhattacharya v Union of
India , while dealing with Sections 12 and 13 of the Ordinance,
made the following observations:
32.   The 1944 Ordinance provided for the attachment
of the money or other property which is believed to have
been procured by means of one of the abovementioned
Scheduled Offences by the offender. Such attached property
is required to be disposed off as provided under Section 13
of the said Ordinance. Under Section 12 of the Ordinance,
the criminal court trying a Scheduled Offence is obliged to
ascertain the amount or value of the property procured by
the accused by means of the offence. Under Section 13(3), it
is provided that so much of the attached property referred
to earlier equivalent to the value ascertained by the criminal
court under Section 12 is required to be forfeited to the
State.

19.     In view of the principle enunciated in the cases cited supra,
Section 13 of the Ordinance exhaustively deals with the withdrawal
of the attachment, release of the security or confiscation of
properties attached.  Therefore, except the procedure contained in
Section 13, no suit or other proceedings are maintainable against
the orders passed attaching or withdrawing the money or other
property under Sections 4, 6 and 13 of the Ordinance, in view of
the bar stipulated under Section 14 of the Ordinance.
20.     The next question to be considered is whether the
confiscation of property attached under the provisions of the
Ordinance would amount to violation of Articles 300A or 20 of the
Constitution of India or not. In Bishwanath Bhattacharya, the
Honble apex Court observed as follows:
33. Dealing with the question  whether such forfeiture (in
the factual setting of the case) violated Article 20 of the
Constitution of India, a Constitution Bench of this Court
held that the forfeiture contemplated in the Ordinance was
not a penalty within the meaning of Article 20 but it is only
a speedier mode of recovery of the money embezzled by the
accused.
39. If a subject acquires property by means which are not
legally approved, the sovereign would be perfectly justified
to deprive such persons of the enjoyment of such ill-gotten
wealth. There is a public interest in ensuring that persons
who cannot establish that they have legitimate sources to
acquire the assets held by them do not enjoy such wealth.
Such a deprivation, in our opinion, would certainly be
consistent with the requirement of Articles 300-A and 14 of
the Constitution which prevent the State from arbitrarily
depriving a subject of his property.

21.     In view of the principle enunciated in the case cited supra,
the property acquired or procured by resorting to Scheduled
Offences is liable for confiscation in the public interest and such
forfeiture would not amount to deprivation of right of enjoyment of
property ordained in the Constitution of India.
22.     Reverting to the facts of the case on hand, the first petitioner
is facing trial in C.C. No.5 of 2016 for the offences punishable
under Section 13(2) read with 13(1)(e) of the PC Act on the file of
the Court of the Principal Special Judge for SPE & ACB Cases-
cum-IV Additional Chief Judge, City Civil Court, Hyderabad.  The
second petitioner is none other than the wife of the first petitioner.
At the fag end of the trial, the petitioners filed Crl.M.P.No.457 of
2016 under Sections 451 and 457 of Cr.P.C., and Sections 4 and 8
of the Ordinance seeking to release the original documents marked
as Exs.P46, P47, P54 and P55 as well as link documents of
Exs.P54 and P55.  The prosecution filed counter before the trial
Court opposing release of the documents.  The learned Special
Judge, after affording reasonable opportunity to both sides,
dismissed the petition. Being aggrieved by the orders of the learned
Special Judge, the petitioners preferred the present criminal
petition.
23.     The learned counsel for the petitioners submitted that in
similar set of facts, the trial court allowed Crl.M.P.No.457 of 2015
in Crl.M.P.No.743 of 2010 in C.C.No.35 of 2010 ordering return of
original sale documents in favour of the accused therein.  To
substantiate his submission, he has filed copy of the order in
Crl.M.P.No.457 of 2015 dated 01.10.2015.  As rightly pointed out
by the learned counsel for the petitioners, the learned Special
Judge allowed the petition and released the documents.  It is not
known whether the legality or otherwise of that order was tested
before this Court.  In such circumstances, this Court cannot glibly
swallow the orders passed by the learned Special Judge in Crl.M.P.
No.457 of 2015 and allow this petition, without considering the
legal implications.
24.     In this case, release of documents is sought under the
provisions of Sections 451 and 457 Cr.P.C., besides Sections 4 and
8 of the Ordinance.  If the property produced before the court is
subject to speedy and natural decay or if it is otherwise expedient
to do so, the court may release the property by invoking Section
451 Cr.P.C.  The question of speedy and natural decay of property
attached does not arise in this case; therefore, Section 451 Cr.P.C.,
is not applicable to the facts of the case on hand.
25.     If the seizure of property by the police is reported to the
learned Magistrate under the provisions of Cr.P.C., the learned
Magistrate may order the property to deliver to such person on
imposing certain conditions under Section 457 Cr.P.C. In the
instant case, the Investigating Officer produced the documents
before the Special Court long back.  The documents in question are
not in the custody of the Police; therefore, Section 457 Cr.P.C., has
no application to the facts of the case on hand.  It appears that for
release of the properties attached under the provisions of the
Ordinance, petitions are being filed purely under Sections 451 and
457 Cr.P.C., before the Special Court.  The petitions being filed
exclusively under Sections 451 and 457 Cr.P.C., are not
maintainable, in view of specific provision (Section 13)
contained in the Ordinance.
26.     In the petition, the petitioners have categorically mentioned
that the property in question was attached vide orders in Crl.M.P.
No.143 of 2004.  The fact remains that attachment order was made
absolute from the date of taking cognizance of offence in C.C. No.5
of 2016.  As referred supra, Section 4 of the Ordinance deals with
ad interim attachment. The first petitioner has not filed objections
questioning the ad interim attachment.  The first petitioner allowed
the Special Court to make the ad interim attachment absolute. The
second petitioner did not file a petition claiming interest or title in
the properties under attachment at the time of ad interim
attachment.  Both the petitioners had kept quiet for a period of
twelve years and filed the petition for release of the properties at
this juncture. Section 8 of the Ordinance deals with furnishing of
security to the satisfaction of Court in lieu of attachment. An
application requesting permission to offer security in lieu of
attachment may be filed at any stage of the proceedings.  If it is
filed before passing the order of ad interim attachment, the learned
Special Judge may refrain from passing attachment order.  If it is
filed after attachment order, the learned Special Judge may
withdraw the order of attachment by recording reasons thereof.
27.     Section 8 of the Ordinance consists of two parts: (1) seeking
relief to withdraw the attachment, if it is made, and (2) production
of sufficient security to the satisfaction of the learned Special
Judge for the value of the property as on the date of its release.
The petitioners did not seek the relief of withdrawal of attachment
order; therefore, the learned Special Judge has no power
whatsoever to withdraw the attachment order. If the accused or
any third party makes an objection or files a petition for
withdrawal of the attachment order, the learned Special Judge has
to decide the same as if it is a title suit.  The burden lies on the
petitioner to establish that he has purchased the property with
known legal source of income. The learned Special Judge has to
keep in mind that the burden of proof heavily lies on the petitioner.
The Special Court shall not allow this type of petitions simply
because the respondent has not adduced any contrary evidence.
Mere filing of the petition under the provisions of the Cr.P.C., or
under the provisions of the Ordinance, does not automatically
entitle the accused or any other person claiming interest in the
property under attachment for release of the same in his favour.
While passing the orders, so far as the withdrawal of attachment is
concerned, the Special Court shall not lose site of various
provisions of the Ordinance. The very purpose of the Ordinance is
to confiscate or forfeit the properties, which are procured by any
person by resorting to any of the Scheduled Offences, in favour of
the Government.  If the Special Court releases the property by
taking into consideration the value of the property as on the date
of attachment, certainly it would amount to defeating the
provisions of the Ordinance.  While releasing the property under
attachment, the Special Court has to keep in mind all these
aspects.
28.     The Honble apex Court, taking note of the prevailing
scenario in the society more particularly the life style of the
persons, who indulged in procuring the property by resorting to
any of the schedule offences, the psychological feelings of the
general public towards those persons, and by referring the legal
measures taken by different countries restraining the persons to
enjoy such properties and moneys, made the following
observations in Paragraphs Nos.40, 41 and 42 of the decision in
Bishwanath Bhattacharya.  They read as follows:
40. Whether there is a right to hold property which is the
product of crime is a question examined in many
jurisdictions. To understand the substance of such
examination, we can profitably extract from an article
published in the Journal of Financial Crime, 2004 by
Anthony Kennedy .
     It has been suggested that a logical interpretation
of Article 1 of the First Protocol of the European
Convention on Human Rights is:
    Everyone is entitled to own whatever property they
have (lawfully) acquired.
hence implying that they do not have a right under
Article 1 to own property which has been unlawfully
acquired. This point was argued in the Irish High Court
in Gilligan v. Criminal Assets Bureau, Galvin, Lanigan &
Revenue Commissioners, (1994-97) 5 Irish Tax Reports
424, namely, that where a defendant is in possession or
control over assets which directly or indirectly constitute
the proceeds of crime, he has no property rights in those
assets and no valid title to them, whether protected by
the Irish Constitution or by any other law. A similar view
seems to have been expressed earlier in a dissenting
opinion in Welch v. United Kingdom, (1995) 20 EHRR
247: in my opinion, the confiscation of property acquired
by crime, even without express prior legislation is not
contrary to Article 7 of the Convention, nor to Article 1 of
the First Protocol. This principle has also been explored
in US jurisprudence. In United States v. Van Horn, 789 F
2d 1492 (1986), a defendant convicted of fraud and
money laundering was not entitled to the return of the
seized proceeds since they amounted to contraband
which he had no right to possess. In United States v.
Dusenbery, 34 F Supp 2d 602 (1999) the Court held that,
because the respondent conceded that he used drug
proceeds to purchase a car and other personal property,
he had no ownership interest in the property and thus
could not seek a remedy against the Governments
decision to destroy the property without recourse to
formal forfeiture proceedings. The UK Government has
impliedly adopted this perspective, stating that:
     It is important to bear in mind the
purpose of civil recovery, namely, to establish
as a matter of civil law that there is no right to
enjoy property that derives from unlawful
conduct.
41. Non-conviction based asset forfeiture model also known
as Civil Forfeiture Legislation gained currency in various
countries: the United States of America, Italy, Ireland,
South Africa, UK, Australia and certain Provinces of
Canada.
42. Anthony Kennedy conceptualised the civil forfeiture
regime in the following words:
    Civil forfeiture represents a move from a crime and
punishment model of justice to a preventive model of
justice. It seeks to take illegally obtained property out of
the possession of organised crime figures so as to prevent
them, first, from using it as working capital for future
crimes and, secondly, from flaunting it in such a way as
they become role models for others to follow into a
lifestyle of acquisitive crime. Civil recovery is therefore
not aimed at punishing behaviour but at removing the
trophies of past criminal behaviour and the means to
commit future criminal behaviour. While it would clearly
be more desirable if successful criminal proceedings
could be instituted, the operative theory is that half a
loaf is better than no bread.
29.     The petitioners filed the petition seeking permission of the
Court to sell the property under attachment and a consequential
direction to the Sub-Registrars to permit the petitioners to execute
sale deeds in respect of the properties under attachment.  If such
reliefs are granted before disposing of the main case, the very
purpose of the attachment order would be frustrated.  For
withdrawal of the order of attachment, the petitioners have to
establish that they have acquired the property under attachment
by lawful means, by adducing evidence.  For one reason or the
other, the first petitioner did not choose to come into witness box
to dislodge the case of the prosecution that he procured the
properties under attachment with ill-gotten money.  Likewise, the
second petitioner also did not choose to come into witness box, to
establish that she purchased the properties under attachment with
legitimate source of income. When the petitioners themselves have
failed to adduce evidence in accordance with the provisions of
Section 5 of the Ordinance, the question of granting of any relief
much less the relief of release of the documents with a
consequential direction to the Sub-Registrars to permit the
petitioners to execute the sale deeds in favour of third parties does
not arise.  The reliefs sought by the petitioners are misconceived.
30.     Any person aggrieved with the orders passed by the learned
Special Judge under Sections 4, 6, 8 and 9 of the Ordinance, he
has to prefer an appeal under Section 11 of the Ordinance, within
30 days from the date of the order.  When a specific provision is
made under a Statute for redressal, the aggrieved person has to
resort to the same.  The petitioners filed the petition under
Sections 4 and 8 of the Ordinance.  If really they are aggrieved by
the order passed under Sections 4 and 8, the remedy available to
them is to file an appeal by invoking Section 11 of the Ordinance.
Filing of the criminal petition under Section 482 Cr.PC is nothing
but circumventing the procedure contemplated under the
provisions of the Ordinance, which is not permissible under law.
Viewed from this angle also, the criminal petition is not
maintainable.
31.     In the light of the above discussion, I am of the considered
view that it is not a fit case to quash the order dated 18.10.2016
passed in Crl.M.P.No.457 of 2016 in C.C.No.5 of 2016 on the file of
the Court of the Principal Special Judge for SPE & ACB Cases-
cum-IV Additional Chief Judge, City Civil Court, Hyderabad.
32.     In the result, the criminal petition is dismissed.
Miscellaneous petitions, if any pending in this criminal petition
shall stand closed.     
__________________________  
T.SUNIL CHOWDARY, J.    
January 05, 2017