THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Petition No.1694 of 2020
ORDER
In this petition filed under Section 482 Cr.P.C., the petitioner seeks to quash the proceedings against him in C.C.No.1/2018 on the file of the Special Judge for Trial of cases against MPs & MLAs at Vijayawada.
2. The prosecution case briefly is that the petitioner/accused has submitted his nomination papers on 03.04.2009 as a candidate for election to the A.P. Legislative Assembly from 197-Penamaluru constituency. In the affidavits in Annexure-1 and Form 26, he has deliberately suppressed the fact that C.C.No.99/2002 and CC.No.69/2002 were pending against him on the file of the Special Judge for Economic Offences Court at Hyderabad for the offences under the Foreign Exchange Regulation Act, 1973. While so, one E.A.S.Sarma, retired IAS Officer and public spirited person residing at Visakhapatnam coming to know about the alleged suppression of the information by the petitioner, made a complaint by e-mail to the Chief Election Commissioner, A.P on 26.07.2012. The Additional Chief Electoral Officer & Joint Secretary to Government of A.P. has forwarded the said complaint to the District Election Officer-cum- District Collector, Krishna on 06.08.2012. In turn, the District Collector forwarded the complaint to the complainant, who is the Returning Officer for Penamaluru Assembly Constituency-cum-RDO, Vijayawada for taking appropriate action. On verification of the 2 UDPR,J Crl.P.No.1694/2020 affidavits filed by the petitioner and confirming the suppression of the material facts, the complainant filed a complaint under Section 190 and 200 Cr.P.C. before the I Metropolitan Magistrate at Vijayawada. The learned Magistrate has taken cognizance for the offence under Section 125-A r/w 33-A of the Representation of the People Act, 1951 and under Section 177 IPC against the petitioner/accused.
3. It seems PWs 1 to 3 were examined in that case. At that juncture, the case was transferred to the Special Judge for trial of cases against MPs and MLAs at Vijayawada, which was renumbered as C.C.No.1/2018. Predominantly challenging the Special Court's jurisdiction, the petitioner filed the instant criminal petition on the contention that the petitioner was neither an elected MP nor MLA on the date of the alleged offence i.e., 03.04.2009 and therefore, his case could not have been transferred to the Special Court. Of course the petitioner inter alia contended that complaint was time barred and that having regard to the stipulation in Section 33-A & 125-A of the Registration of the People Act, 1951 and Section 177 IPC, no offence was made out by the prosecution.
4. Heard the arguments of learned counsel for petitioner Sri K.Ramamohan, and learned Additional Public Prosecutor representing the State.
5. The main plank of argument of learned counsel for the petitioner is that as on the date of alleged offence i.e., 03.04.2009 3 UDPR,J Crl.P.No.1694/2020 when he filed nomination papers, he was neither a MP nor a MLA but only an aspirant for MLA of Penamaluru constituency. Therefore, even assuming that he withheld or suppressed certain information with regard to his involvement in two criminal cases deliberately, the resultant criminal case has to be tried by the jurisdictional Magistrate but not by the Special Judge for trial of cases against MPs and MLAs. He vehemently argued that the Special Court for trial of criminal cases relating to elected MPs and MLAs, Vijayawada was established by virtue of G.O.Rt.No.250 dated 03.04.2018 for trial of offences against elected MPs and MLAs either present or past provided as on the date of offence, the accused was either a MP or a MLA. Since the petitioner was not an elected MP or MLA by the date of nomination, which is the date of offence, his case cannot be tried by the Special Court. On this main argument, he prayed to quash the criminal case No.1/2018.
a) Nextly, learned counsel argued that the complaint was woefully barred by limitation. In expatiation, he would submit that the petitioner allegedly committed offences under Section 125A r/w Section 33A of the Representation of the People Act, 1951 (for short 'the RP Act') and Sections 171G and 177 of IPC. He would submit that the offence under Section 125A r/w 33A of the RP Act is punishable with imprisonment for a term which may extend to six months or with fine or with both. Whereas the offence under Section 171G IPC is punishable with fine and the offence under Section 177 4 UDPR,J Crl.P.No.1694/2020 IPC is punishable with simple imprisonment for a term which may extend to six months or with fine which may extend to Rs.1,000/- or with both. Further, the information which the accused falsely furnishes is in respect of the commission of an offence, the imprisonment may extend to two years or with fine or with both. Then, referring to Section 468 Cr.P.C., learned counsel would submit that in view of the time stipulation in the said Section, the complaint ought to be filed at best within one year from the date of commission of offence and beyond that period, the Court shall not take cognizance. However, in the instant case, he argued, the alleged offence was committed on 03.04.2009 when the nomination was filed allegedly withholding certain information and the complaint was filed on 24.09.2012 i.e., more than three years after the offence. Hence, the complaint petition filed by the complainant was barred by limitation.
b) Thirdly with regard to the maintainability of the complaint petition under different sections, learned counsel argued that Section 125A of the RP Act treats the failure of a candidate in furnishing information relating to Section 33A (1) as an offence. Then, referring to Section 33A of the RP Act, learned counsel would submit that a candidate is required to furnish the information in his nomination paper whether he is accused of an offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction. Learned counsel argued that in C.C.Nos.69/2002 and 99/2002, in 5 UDPR,J Crl.P.No.1694/2020 which he was an accused, charges were not framed by the date of filing nomination and therefore, he did not furnish the information relating to his involvement in C.C.Nos.69/2002 and 99/2002 in the nomination paper and thereby his action cannot be treated as suppression of information within the meaning of Section 33A and Section 125A of the RP Act. For the same reason, he would argue, the petitioner cannot be held to have committed any offence under Section 177 IPC, as the said Section says that whoever being legally bound to furnish information on any subject to any public servant but furnishes a false information saying it as true, commits the offence. Learned counsel would emphasise that since the petitioner was not legally bound to furnish the information relating to his involvement in C.C. Nos.69/2002 and 99/2002, as the charges were not framed by then, he cannot be alleged to be guilty of furnishing a false information to a public servant having been legally bound to furnish true information. He also argued that on the same analogy, the offence under Section 171 G of IPC is not attractable against him. He submits that the said Section applies to the cases where a person with an intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate. Learned counsel thus submitted that continuation of criminal case will amount to abuse of process of the Court and therefore, the criminal proceedings may be quashed.
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6. Per contra, learned Additional Public Prosecutor argued that since the petitioner was a former MLA, the Special Court has jurisdiction to take up C.C.1/2018 and there is no jurisdictional issue in it. Nextly, he argued that though the offence was committed by the petitioner/accused on 03.04.2009 i.e., on the date of filing of nomination, however, the complainant had no occasion to know that the petitioner/accused suppressed the information of his involving in two criminal cases till Sri E.A.S.Sarma, a retired I.A.S. Officer, addressed an e-mail dated 26.07.2012 to the Chief Election Officer. Within short time thereafter, enquiry was made and complaint was filed on 24.09.2012. Therefore, learned APP argued, the limitation will commence only from 26.07.2012 as per Section 469 Cr.P.C. and hence, the complaint petition was not time barred as alleged. Regarding the maintainability of different sections of offences, learned APP argued that the said aspect needs to be enquired by considering the evidence on record. He would thus argue that the criminal petition may be dismissed.
7. The point for consideration is, whether there are merits in the criminal petition to allow?
8. POINT: As can be seen, the prime argument of the petitioner is that the Special Court has no jurisdiction to try the case. In this regard, in Chintamaneni Prabhakar Rao @ Prabhakar Vs. 7 UDPR,J Crl.P.No.1694/2020 S.I. of Police, Pedapadu Police Station, West Godavari District1, this Court dealt with the establishment of the Special Court for trial of criminal cases relating to elected MPs/MLAs. It was observed thus: "6. Be that it may, pursuant to the directions of Hon'ble Apex Court in Ashwini Kumar Upadhay Vs. Union of India and another (W.P. (Civil) No.699 of 2016) (directions dated 14.12.2017, 21.08.2018 & 04.12.2018) the designated Courts have been established through out the country for the trial of criminal cases involving MPs and MLAs. Towing the line, Government of Andhra Pradesh in G.O.Rt.No.250 dated 03.04.2018 LAW (L,LA & J-Home-Courts-A) Department issued notification, which reads thus:
Special Court for trial of criminal cases relating to elected MPs/MLAs, Vijayawada - Specifying the whole of the State of Andhra Pradesh as the local area - Notification - Orders - Issued.
1) G.O.Ms.No.26, Law (LA, LA & J) Home Courts.A) Department, dt.26.02.2018.
2) From the Registrar (Admin.), High Court of Judicature at Hyderabad, R.O.C.No.105/E1/2018, dated 17.03.2018.
ORDER:
In the reference 1st read above, orders were issued establishing one (1) Special Court in the cadre of District and Sessions Judge at Vijayawada in Krishna District for trial of criminal cases relating to elected MPS and MLAs of the State.
(2). In the reference 2nd read above, the Registrar (Administration), High Court of Judicature at Hyderabad, requested the Government to issue a notification specifying the jurisdiction of the said Court.
(3). The following notification will be published in the Andhra Pradesh Gazettee Extraordinary.
NOTIFICATION In exercise of the powers conferred by the proviso to sub- section (1) of Section 11 read with clause (j) of Section 2 and read with Sections 7 and 9(1) of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and after consultation with the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Government of Andhra Pradesh, hereby 1 2019 (3) ALT(Cri) 184 = 2020 (1) ALD (Cri) 413 8 UDPR,J Crl.P.No.1694/2020 (1) Specify the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a Special Court for the trial of offences relating to elected Members of Parliament and Members of the Legislative Assembly as sanctioned, vide G.O.Ms.No.26, Law (L, LA & J-Home- Courts.A) Department, dated 26.02.2018; and
2) Establish a Special Court of Judicial Magistrate of First Class to try offences relating to elected members of Parliament and Members of the Legislative Assembly and the said Court shall be known as the Court of Special Judge in the cadre of Sessions Judge for trial of criminal cases relating to elected Members of parliament and members of the Legislative Assembly, arising out of the entire area of State of Andhra Pradesh.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) SECRETARY TO GOVERNMENT LEGAL, LEGISLATIVE AFFAIRS & JUSTICE."
Thus, as can be seen, the Special Court was established for trial of offences relating to elected Members of Parliament and Members of Legislative Assembly. As rightly argued by learned counsel for the petitioner, in my considered view, the Special Court will try the offences committed by both sitting and former MPs and MLAs provided as on the date of commission of offence, the accused was either a MP or a MLA. In the instant case, admittedly, the petitioner/accused was neither a MP nor a MLA as on the date of alleged offence i.e., 03.04.2009. On that date, he was only an aspirant for MLA of Penamaluru constituency and submitted his nomination papers wherein he allegedly withheld the information relating to his involvement in criminal case Nos.69/2002 and 99/2002. Therefore, in my considered view, the Special Court at Vijayawada will not have jurisdiction to try the said case. However, on that ground, the 9 UDPR,J Crl.P.No.1694/2020 criminal case cannot be quashed as prayed by the petitioner. On the other hand, it is trite that C.C.No.1/2018 shall be directed to be transferred to its original Court i.e., the Court of I Metropolitan Magistrate, Vijayawada for completion of further trial and for pronouncement of judgment. So far as the arguments relating to the plea of limitation is concerned, it is a mixed question of fact and law as to when the knowledge of offence came to light and therefore, that aspect, in my considered view, has to be resolved by the trial Court with reference to the facts and evidence both oral and documentary presented before it. Similarly, the contention of the petitioner that none of the offences alleged against him under Sections 33A r/w 125A of the RP Act and Sections 171G and 177 IPC is attracted is concerned, the said issue also depends upon when the charges were framed against the petitioner in C.C. Nos.69/2002 and 99/2002 by the concerned Court. Therefore, in my view, this issue can be better appreciated by the trial Court with the aid of the facts and evidence. The petitioner/accused is at liberty to argue the above aspects before the trial Court which has to consider the same and pass judgment on merits.
9. Thus, on a conspectus of facts and law, this criminal petition is disposed of with a direction that C.C.No.1 of 2018 pending on the file of the Special Judge for trial of cases against MPS and MLAs at Vijayawada be transferred to the Court of I Metropolitan Magistrate, Vijayawada for completion of trial and for pronouncement of 10 UDPR,J Crl.P.No.1694/2020 judgment expeditiously. The petitioner/accused is at liberty to advance arguments on all the aspects which are permissible under law and the trial Court upon hearing both parties, deliver judgment on merits.
As a sequel, interlocutory applications, if any, pending for consideration shall stand closed.
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U. DURGA PRASAD RAO, J
6th May, 2021
cbs
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Crl.P.No.1694/2020
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Petition No.1694 of 2020
6th May, 2021
cbs
12 UDPR,J
Crl.P.No.1694/2020