HON'BLE SRI JUSTICE K.LAKSHMAN
CRL.P.Nos.4080 of 2017, 5097,5155 and 6641 of 2020
COMMON ORDER:
Crl.P.No.4080 of 2017 is filed by A1, A2, A4, and A8 in
C.C.No.17 of 2016 seeking to quash the proceedings in the said CC.
2. Crl.P.No.5097 of 2020is filed by A1, A2, A5, A6, A7, A37, 41
and 43 in C.C.No.27 of 2017 seeking to quash the proceedings in the said
C.C.
3. Crl.P.No.5155 of 2020 is filed by A1 to and A4 in C.C.No.26 of
2020 seeking to quash the proceedings in the said C.C.
4. Crl.P.No.6641 of 2020 is filed by A13 and A44 in C.C.No.27 of
2017 seeking to quash the proceedings in the said C.C.
5. In the above said three calendar cases i.e., C.C.No.17 of 2016,
C.C.No.27 of 2017 and C.C.No.26 of 2020, the de facto complainants
therein have filed the complaints under Section 200 of Cr.P.C before the
Courts below and the same were referred to ACB for the purpose of
investigation under Section 156 (3) of Cr.P.C. On such reference, the
ACB officials have registered crimes and after completion of
investigation, they have laid the charge sheets against the petitioners
herein and other accused in the above said three calendar cases.
6. Since the issues raised therein, the allegations made against the
petitioners-accused and disputes are also common, the said four criminal
petitions are heard together and decided by way of the present common
order.
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7. As stated above, the de facto complainants in the above said
three Calendar Cases have filed complaints under Section 200 of Cr.P.C.
before the Court below and the same were referred to ACB officials
under Section 156(3) Cr.P.C. The ACB officials have registered FIRs in
the above said three calendar cases and after completion of investigation,
filed charge sheets. In C.C.No.27 of 2017, there are 15 allegations
against the accused therein.
8. The said allegations, in brief, are as follows:
Hyderabad Cricket Association (for short 'HCA') is a member
of Board of Control for Cricket in India (for short 'BCCI') and it is a
recognized association for promotion of Cricket within the State of A.P.
under the overall control of BCCI. HCA has received huge amount of
funds from BCCI and it has also received the land at Uppal from the
Government of A.P. for construction of Rajiv Gandhi International
Cricket Stadium. The funds received by H.C.A from BCCI and others
are exclusively meant for promotion and betterment of Cricket and
cannot be misappropriated or used for the pecuniary advantage of its
office bearers. The accused are office bearers of HCA. The de facto
complainant is a Secretary of 'Sagar Cricket Club', Hyderabad and is
also a member of HCA. The accused, being the managing committee
members of HCA, mismanaged the activities in HCA. The Government
has given Ac.23.28 guntas of land in favour of H.C.A for the purpose of
construction of Rajiv Gandhi International Cricket Stadium, at Uppal,
Hyderabad, under a registered lease deed for a period of 30 years @
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Rs.1,00,000/- (Rupees one lakh only) per annum towards rent. A16 is
the successful bidder to construct the said Stadium and it has entered into
an agreement with H.C.A. The construction cost was estimated at Rs.31
crores and during the tenders, A16 quoted final amount of
Rs.31,20,16,069/- and 3% with less discount and final amount quoted at
Rs.30,26,55,587/-, which includes firefighting system and fire pump
house. From time to time, the said amount of construction was enhanced
to Rs.108 crores. A16 has not provided the fire fighting system.A16 has
committed several irregularities and allowed to enhance the cost of
construction by taking huge amounts and bribes and caused heavy loss to
the Society.
9. There are specific allegations that the committee has paid
Rs.910/- for each bucket chair, whereas in the open market the cost is
Rs.450/-. The committee has paid an amount of Rs.2,07,00,000/- excess
by taking huge kickbacks from the supplier. The HCA had purchased
generators from A19 by paying Rs.1,75,00,000/-. A17 was appointed by
HCA and he never performed his duties. He is also one of instruments to
enhance the construction cost in the said stadium. There is also
misappropriation of funds with regard to construction of stadium by
HCA and the same was given to A20. In spite of orders of the Collector,
R.R.District, dated 15.10.2007, A1 to A14 have committed irregularities
in selling the tickets. A1 to A14 have not paid sales tax to Commercial
Tax Department as such they raided the office of HCA and imposed the
fine of Rs.44,00,000/- on HCA. The said fact would show that A1 to A14
had not performed their duties diligently.
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10. A1 to A14 without calling for tenders have invested more than
an amount of Rs.83,00,000/- on three play grounds i.e., Qutubullapur,
Mathrusri Engineering College and Osmania University and
misappropriated the said amount. There is misappropriation of amount
with regard to erection of flood lights in Rajiv Gandhi International
Cricket Stadium and a unilateral decision has been taken to purchase land
at Nandigama Village, Patancheruvu Mandal, Medak District.
11. Thus, there are 15 allegations made against the accused in
C.C.No.27 of 2017 by the de facto complainant therein. There are similar
allegations in the above said three other calendar cases by the de facto
complainants therein.
12. It is relevant to note that the Investigating Officer has laid
charge sheet basing on the statements of the witnesses recorded under
Section 161 Cr.P.C and also considering the documentary evidence
collected during the course of investigation. The details of allegations,
statements recorded, documentary evidence collected etc., are
specifically mentioned in the charge sheet. The Investigating Officer
referring to the same, has specifically mentioned that as per the
investigation some of the allegations are not substantiated. However, the
Investigating Officer has categorically stated that the accused in the
above said Crl.P.Nos.5097 of 2020 and 6641 of 2020 have committed the
offences. In the other three calendar cases also, there were similar
references made by the investigating officers.
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CONTENTIONS OF THE PETITIONERS:
13. Sri C.Nageswara Rao, learned Senior Counsel, representing
Ms. K.Aruna, learned counsel for the petitioners in Crl.P.No.6641 of
2020, advanced lead arguments in the entire batch, as follows:
The accused in all the calendar cases being the Managing
Committee Members of HCA never discharged their functions as public
servants. Therefore, the provisions of Prevention of Corruption Act,
1988, (for short 'PC Act') does not attract against them. HCA never
received any aid or grant from the Government and therefore, it is not a
public authority and the accused are not the public servants. The offences
alleged against the accused under the provisions of the PC Act are not
maintainable. The ingredients of the charge sheet lacks the offences
alleged against the petitioners herein. Learned Senior Counsel relied on
the principles laid down in several judgments which will be referred
below at relevant point of time.
14. Sri K.S.Murthy, learned counsel, representing
Sri V.Ramachander Goud, learned Senior Counsel, appearing for the
petitioners in Crl.P.No.4080 of 2017, 5097 of 2020 and 5155 of 2020,
while adopting the submissions made by learned Senior Counsel, would
supplement as follows:
Placing reliance on the principle laid down by the Hon'ble Apex
Court in Himachal Pradesh Cricket Association vs. State of H.P.1,
learned counsel would submit that HCA is not a State as defined under
1
2018 SCC Online 2419
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Article 12 of the Constitution of India and therefore, the provisions of PC
Act are not attracted. The Investigating Officer without considering
several aspects and also without considering the order dated 15.7.2015 in
W.P.(c) No.11822 of 2013 and the common order dated 15.11.2011 in
Crl.P.No.3461 of 2011 and batch dated 15.11.2011, wherein it was
directed if the investigation reveals that the authorities concerned
financially assisted the association, necessarily they should be termed as
public servants. The Investigating Agency is at liberty to decide the issue
on the basis of the outcome of the investigation. He would further
submit that A4 i.e., K.John Manoj in C.C.No.26 of 2020 and A43 i.e.,
Surendra Kumar Agarwal in C.C.No.27 of 2017 were inducted into
Managing Committee of HCA much later to the period for which the
investigation was ordered to be done and the allegations were made.
Therefore, they are nothing to do with the alleged
misappropriation and the offences levelled against them are not made
out.
15. With the said submissions, leaned Senior Counsel appearing
for the petitioners in the above Criminal Petitions sought to quash the
proceedings in C.C.No.17 of 2016, C.C.No.27 of 2017 and C.C.No.26 of
2020.
16. Sri V.RaviKiran Rao, learned Senior Counsel, representing
TS ACB, would submit that the Government has given Ac.23.27 guntas
(1,14,587 sq.yards) of land in Uppal, Hyderabad, which is a prime place,
on lease, to HCA for the purpose of construction of Cricket Stadium at
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International Standards on a nominal rent of Rs.1,00,000/- per annum. A
registered lease deed bearing document No.12021/2004/SRO, Uppal,
dated 06.12.2004 was entered between HCA and Government of A.P for
a period of 25 years. The Government has extended funds from 1961 to
1983 and the details of the same were specifically mentioned in the
counter filed by the respondents. On receipt of complaints from the Court
below, the ACB officials have registered the complaints against the accused for the aforesaid offences and on completion of investigation, they have laid charge sheets against the accused. While laying the charge sheets, the Investigating Officer has considered the statements of witnesses recorded under Section 161 Cr.P.C and also the documentary evidence collected by it.
17. By referring to the contents of the charge sheet, learned Senior Counsel would further submit that the Investigating Officer dropped certain charges against the accused, on consideration of the statements of the witnesses recorded under Section 161 Cr.P.C. and also documentary evidence collected during the course of investigation on the ground that the said allegations are not substantiated. The same would show the unbiased and impartial investigation conducted by the Investigating Officer. He would further submit that there are several triable issues, which have to be decided during the course of full-fledged trial. The accused instead of facing full-fledged trial, and proving innocence, approached this Court by way of filing the present criminal petitions under Section 482 Cr.P.C seeking to quash the very criminal proceedings itself. He has also referred certain provisions of PC Act, IPC and the KL,J 8 Crl.P. No.4080 of 2017&batch principles laid down by the Hon'ble Apex Court and this Court. The same would be referred and considered below at the relevant point of time.
18. With the above said submissions, learned Senior Counsel sought to dismiss all the four Criminal Petitions.
19. The above stated facts and material also would reveal that the petitioners/accused in the above said criminal petitions have filed Crl.P.No.3461 of 2011 and batch to quash the proceedings in FIR No.13/ACB-CIU-HYD/2011 and FIR No.17/ACB-CIU-HYD/2011 of P.S. CIU, ACB, Hyderabad respectively. They have also raised several grounds including the grounds that HCA has not received any funds or aid from the Government. Therefore, it is not a State as defined under Article 12 of the Constitution of India. They are not the public servants and they never discharged any public duty. Therefore, the offences under the provisions of PC Act are not attracted to the accused therein. This Court, on consideration of the said allegations, dismissed the said Criminal Petitions by holding that the Investigation may go on, if the investigation reveals that the authorities concerned financially assisted the association, necessarily they should be termed as public servants. Liberty was granted to the Investigating Agency to decide the issue on the basis of outcome of investigation with regard to the contention of the petitioners that they are not public servants and they never discharged the duties of a public servant.
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20. Pursuant to the said common order, the Investigating Officer has conducted investigation and laid charge sheet against the accused in the above said four criminal petitions for the above said offences. In the Charge sheet itself, it is specifically mentioned that HCA has received grants to a tune of Rs.1,31,300/- from A.P. Sports Council from the years 1962-63 to 1979-80 and 1981. The details of the said grant is specifically mentioned in the charge sheet. Referring to the principle laid down by the Kerala High Court in Karthikeya Varma alias Kartik Varma vs. The Union of India and others2, the Investigating Officer has categorically mentioned that Kerala Cricket Association was recognized as one of the Sports Association in Kerala by the State Government along with other Associations. They are not under full supervision and control of the Kerala State Sports Association and though, the grants were provided upto 2006, it was received only 2007 and that the amount received earlier was remitted back to the Cricket Association in January 2009. Therefore, it was held that provisions of P.C Act is attracted to an office bearer or a member, employee having received any financial assistance from the State Government or Local or public authority.
21. A perusal of judgment in Karthikeya Varma (supra), the Kerala High Court by referring activities of Kerala Cricket Association, grants received by it, and also purpose for which, the same were received held that the complainant has no case that the stadium is being constructed by the Kerala Cricket Association in discharge of legal 2 2015 CRI.L.J.4815.
KL,J 10 Crl.P. No.4080 of 2017&batch obligations under any positive law enacted by the State or by the executive direction of the Government. In that view of the matter, construction of stadium can only be considered as a State function and not in discharge of any public duty.
22. Considering the same and also relying on the law laid down by the Hon'ble Apex Court in several judgments, Kerala High Court held that Kerala Cricket Association is not a public office. The Kerala Cricket Association is not under a legal obligation under any statute law or governmental decision to construct stadium. Thus, no complaint would be maintainable against the Kerala Cricket Association for the purchase of land for construction of the stadium.
23. In Himachal Pradesh Cricket Association(supra), the Hon'ble Apex Court referring to the allegations levelled held that the offences under the provisions of PC Act would not attract in the said case.
24. In Nanjappa vs. State of Karnataka (Criminal Appeal No.1867 of 2012, dated 24.7.2015 ), the Apex Court had an occasion to deal with the provisions of PC Act and also the sanction for the purpose of prosecution and quashed the proceedings therein.
25. In Station House Officer/CBI/ACB/Bangalore vs. B.A.Srinivasan and another3, the Three Judges Bench of Apex Court categorically held that after considering the facts of the case therein 3 (2020) 2 SCC 153 KL,J 11 Crl.P. No.4080 of 2017&batch summarized the principle with regard to intricately connected with discharge of official functions of accused.
26. In Zee Tele Films Limited vs. Union of India4 , the Hon'ble Apex Court held that Cricket Board discharges a public function. It has its duties towards the public. The public at large will look forward to the Board for selection of the best team to represent the country. It must manage its housekeeping in such a manner so as to fulfil the hopes and aspirations of millions. It has, thus, a duty to act fairly. It cannot act arbitrarily, whimsically or capriciously. Public interest is, thus, involved in the activities of the Board. It is, thus, a State.
27. In another case reported in Board of Control for Cricket in India vs. Cricket Association of Bihar and others5 , the Apex Court held that BCCI is a very important institution that discharges important public functions. Demands of institutional integrity are, therefore, heavy and need to be met suitably in larger public interest. Individuals are birds of passage while institutions are forever. The expectations of the millions of cricket lovers in particular and public at large in general, have lowered considerably the threshold of tolerance for any mischief, wrongdoing or corrupt practices which sought to be weeded out of the system. Conflict of interest is one area which appears to have led to the current confusion and serious misgivings in the public mind as to the manner in which BCCI is managing its affairs.
4 2005 4 SCC 649 5 2015 3 SCC 251 KL,J 12 Crl.P. No.4080 of 2017&batch
28. In Central Bureau of Investigation, Bank Securities and Fraud Cell vs. Ramesh Gelli and others6, the Hon'ble Apex Court held that the enactment of the PC Act with the clear intent to widen the definition of "public servant" cannot be allowed to have the opposite effect by expressing judicial helplessness to rectify or fill up what is a clear omission in Section 46-A of the BR Act. The omission to continue to extend the deeming provisions in Section 46-A of the BR Act to the offences under Sections 7 to 12 of the PC Act must be understood to be clearly unintended and hence capable of admitting a judicial exercise to fill up the same. The unequivocal legislative intent to widen the definition of "public servant" by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46-A of the BR Act to be incapable of being filled up by the Court.
29. In State of Maharashtra vs. BrijlalSadsukhModani7, the Hon'ble Apex Court held that the High Court has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-State is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term "aid" has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of "public servant". 6 (2016) 3 SCC 788 7 (2016) 4 SCC 417 KL,J 13 Crl.P. No.4080 of 2017&batch
30. The Division of the High Court of Hyderabad and for the State of Telangana and the State of Andhra Pradesh in the case of M.Govind Reddy vs. Hyderabad Cricket Association and others8, held that just like the BCCI, HCA is also a registered society administering cricket in Hyderabad. It holds complete sway over cricket in the State of Telangana, and has exclusive authority to select the Hyderabad cricket team. It controls the Rajiv Gandhi Cricket Stadium at Uppal. As the functions discharged by HCA are public functions, it is amenable to the jurisdiction of this Court under Article 226 of the Constitution of India.
31. In Himachal Pradesh Cricket Association (supra) referring to the facts of the case and the allegations which have specifically mentioned therein, the Apex Court held that the allegations of criminal prosecution or criminal acts are lacking in the said cases.
32. By referring to the proceedings issued by it, and also G.O.Ms.No.1384, dated 19.11.2010, lease deed, learned Senior Counsel representing TS ACB would submit that there is an aid from the Government to HCA including providing of land on lease and grants from 1963-1981. Therefore, it is a State as defined under Article 12 of the Constitution of India. Therefore, the provisions of PC Act are applicable. The accused, being Managing Committee Members of the said Association, discharged public duties and therefore, they are public servants in the eye of law.
8 2017(3) ALT 506 KL,J 14 Crl.P. No.4080 of 2017&batch
33. As stated above, the Investigating Officer referring to the statements of the witnesses recorded under Section 161 Cr.P.C and also referring to the documentary evidence collected during the course of investigation categorically mentioned in the charge sheet that some of the allegations are not substantiated and some of the allegations are substantiated. The reasons were also specifically mentioned therein. Thus, the petitioners cannot contend that the Investigating Officers have not considered the relevant material and not conducted the investigation in a fair and transparent manner. The alleged omissions and contradictions in the statements of the witnesses cannot be considered in a petition filed under Section 482 of Cr.P.C. as held by the Hon'ble Apex Court in catena of decisions. The petitioners have to face trial and take the said defences during trial and prove their innocence.
34. As stated above, for the purpose of construction of Stadium, the Government has granted Ac.23.27 guntas (1,14,587 sq.yards) of land in favour of HCA, on lease, for a period of 25 years, on the nominal rent of Rs.1,00,000/- per annum and also grants were received by HCA. There are serious allegations of misappropriation of funds at every stage by HCA. The said facts were specifically referred in the discussion supra.
35. Thus, as there are triable issues, the petitioners have to face trial and prove their innocence. Instead of doing so, the petitioners have filed the present criminal petitions to quash the proceedings in the four calendar cases.
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36. In view of the above fact that HCA has obtained land to an extent of Ac.23.27 guntas on lease on a nominal rent of Rs.1,00,000/- per annum for a period of 25 years vide registered lease deed No.12021/ 2004/SRO, Uppal dated 06.12.2004 wherein it is indicated that HCA was financially assisted by the Government for its development and to function in a transparent manner. As held by the Hon'ble Apex Court in Zee Tele Films Limited (supra), in every discharge of duty, there is an element of sovereign functions, State functions and public functions, therefore they may be treated as public servants. HCA has received grant of aid from the Government and therefore, prima facie, the petitioners/accused and the office bearers of HCA are public servants and they have discharged their duties of public servants. Therefore, there are several triable issues to be decided by the trial Court. The petitioners have to face trial, take the said defences and prove their innocence. Instead of doing so, the petitioners have filed the present criminal petitions seeking to quash the proceedings in the above said four calendar cases.
37. It is relevant to refer Section 2 (c) (xii) of the P.C.Act, which is reproduced hereinunder:
"any person who is an office-bearer or an employee of educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority".
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38. As discussed supra, the HCA has received aid from the Government and huge land in a prime locality on a nominal rent.
39. The facts of the case in Karthikeya Varma (supra) are different from the facts of the present case and in view of the above discussion, the said principle is not applicable to the facts of the present case. Likewise, in Nanjappa (supra), the Hon'ble Apex Court while dealing with conviction judgment by the trial Court, reversed by High Court, acquitted the accused on the ground of absence of valid prosecution under the provisions of P.C.Act and as it is a triable issue, the petitioners have to take the defences during trial. The same cannot be considered in a petition filed under Section 482 of Cr.P.C. therefore, the petitioners cannot take shelter under the principle laid down by the Apex Court in Nanjappa (supra).
40. In Himachal Pradesh Cricket Association (supra), the allegations in the charge sheet against the accused therein are with regard to demolition of residential hostel by the officials of H.P. Cricket Association and the Hon'ble Apex Court, on considering the allegations therein, came to a conclusion that there is no criminal element. Accordingly, with the said findings, the Apex Court was pleased to quash the First Information Report, whereas, in the present case, prima facie, there are serious allegations against all the accused. Therefore, the said principle is not applicable to the facts of the present case. The misappropriation committed by each of the accused and the role played by them is also specifically mentioned in the charge sheet. With regard to KL,J 17 Crl.P. No.4080 of 2017&batch the contentions of Sri K.S.Murthy, learned senior counsel that A.4 i.e. K.John Manoj in C.C.No.26 of 2020 and A.43 i.e. Surendra Kumar Agarwal in C.C.No.27 of 2017 were inducted into Managing Committee of HCA much later to the period for which investigation was ordered to be done. It is the specific contention of the ACB in the charge sheet as well as in counter that A.4-K.John Manoj, served as Executive Committee Member of HCA from the year 2003-04 to 2009-10 as honorary Secretary, HCA in the year 2014. He was active Member in the Association during the construction of Stadium and therefore, committed offences. Similar allegations are there against A.43 i.e. Surendra kumar Agarwal. Therefore, the said contention of Sri K.S.Murthy, learned Senior counsel is not sustainable. However, it is a triable issue which can be looked into by the trial Court and the same cannot be considered in a petition filed under Section 482 of Cr.P.C.
41. Prima facie, there are serious allegations against the petitioners herein. However, whether the HCA has received any aid or financial assistance, whether the office bearers of HCA have discharged public duty and whether they are the public servants as defined under the provisions of the P.C. Act is a question of fact and triable issues. The same will be decided during the course of trial. The petitioners have to face trial and prove their innocence by leading evidence. Thus, the said issue cannot be decided in the present proceedings.
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42. In Kamal Shivaji Pokarnekar vs. The State of Maharashtra9 , wherein the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash the same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were 9 AIR 2019 SC 847 KL,J 19 Crl.P. No.4080 of 2017&batch prima facie made out in complaint, criminal proceeding shall not be interdicted.
43. The Apex Court in Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh10, and also by referring various other judgments, held that the High Court has to quash the proceedings in criminal cases in rarest of rare cases with great caution and with great circumspection.
44. In view of the aforesaid law laid down by the Apex Court and also in view of the discussion supra, there are several triable issues in all the four criminal petitions. The petitioners/accused have to face trial and prove their innocence. Thus, this Court is not inclined to quash the proceedings in the above said four calendar cases by invoking inherent powers under Section 484 Cr.P.C. The petitioners have also failed to make out any ground to quash the proceedings in the said calendar cases. In view of the same, all the four criminal petitions are liable to be dismissed.
45. Accordingly, all the Criminal Petitions are dismissed. As a sequel, pending miscellaneous petitions, if any, in these Criminal Petitions, shall stand closed.
__________________________ JUSTICE K.LAKSHMAN Date: 01.06.2021 Rkk 10 Manu/SC/0898/2020