THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.2173 OF 2013
ORDER:
This Criminal Revision Case is filed by the petitioner-accused for setting aside the order dated 19.08.2013 passed in Crl.M.P.No.280 of 2013 in C.C. No.14 of 2010 by the I Additional Special Judge for SPE & ACB Cases cum V Additional Chief Judge, City Civil Court, Hyderabad Range.
2. The Inspector of Police, ACB, Hyderabad Range, filed charge sheet against the petitioner - accused officer for disproportionate assets under Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 (for short 'PC Act') alleging that the accused officer, while working as Deputy Executive Engineer in the office of the Deputy Commissioner, Greater Hyderabad Municipal Corporation, L.B. Nagar Circle, Ranga Reddy District and while functioning as public servant in various capacities in various Municipalities during the check period, indulged in corruption and illegal practices and secured huge assets worth Rs.42,61,007/- as on the terminal date of check period in his name and in the name of his Dr.GRR,J 2 Crl.R.C. No.2173 of 2013 family members and dependents. For the entire check period, the income of the accused officer from all the known sources was arrived at Rs.29,71,360/- and the total expenditure incurred was calculated at Rs.30,73,279/- and he was found with an excess expenditure of Rs.1,01,919/- (expenditure of Rs.30,73,279/- minus income of Rs.29,71,360/-). The total value of the disproportionate assets found in possession of the accused officer in his name and in the names of his wife and children as on 20.11.2007 would amount to Rs.43,62,926/- (Assets of Rs.42,61,007/- plus excess expenditure of Rs.1,01,919/-).
3. The case was taken cognizance by the Additional Special Judge for SPE & ACB Cases, Hyderabad, numbered as C.C.No.14 of 2010 and during the course of trial, two witnesses were examined by the prosecution out of 38 witnesses cited.
4. While the matter stood thus, a representation was given by the accused officer to the Government submitting that the ACB had exaggerated the value of the assets and included several items of assets which were not acquired or owned by him as his assets and boosted the items of expenditure and tagged several items of Dr.GRR,J 3 Crl.R.C. No.2173 of 2013 expenditure which were not related to him and made double entries of several other items of expenditure and short accounted source of income and ignored several other sources of income. His wife was an income tax assessee. The ACB, without considering his family background and the antecedents of his in-laws and without considering all the sources of income, had shown that he was in possession of assets disproportionate to his known sources of income by boosting the values of the assets, and gave a detailed explanation with regard to all the items shown as assets, expenditure and income.
5. On considering the representation of the accused officer, the Government of A.P., Municipal Administration and Urban Development Department, issued Memo No.24405/Vig.I(2)/2007-3, dated 28.05.2010 deciding to conduct departmental enquiry on the allegations by withdrawing the prosecution.
6. Basing on the said memo, the Special Public Prosecutor, ACB, Hyderabad, filed a petition vide Crl.M.P. No.280 of 2013 in C.C. No.14 of 2010 under Section 321 Cr.P.C., for withdrawal of the prosecution. The learned I Additional Special Judge for SPE & ACB Dr.GRR,J 4 Crl.R.C. No.2173 of 2013 Cases cum V Additional Chief Judge, City Civil Court, Hyderabad dismissed the said application vide impugned order dated 19.08.2013.
7. Aggrieved by the same, the petitioner-accused officer preferred this criminal revision case contending that the representation given by the accused officer was considered by the Government. On careful consideration of the matter and having regard to the circumstances of the case, decided to conduct departmental enquiry and ordered to withdraw the prosecution. The Government, being the prosecuting agency, could place the necessary material before the Public Prosecutor. The decision of the Public Prosecutor in withdrawing the prosecution under Section 321 Cr.P.C., was justifiable. The Public Prosecutor, on considering the material with him, was of the opinion that it was not a fit case for prosecution and acted in good faith and relied upon the order of this Court in Crl.P. No.5496 of 2007, dated 05.03.2010, and prayed to allow the revision and to refer the case to the Departmental enquiry.
8. Heard Sri Prasad Ravanaboina, learned counsel for the petitioner-accused officer and Sri T.L. Nayan Kumar, learned Dr.GRR,J 5 Crl.R.C. No.2173 of 2013 Standing Counsel and Special Public Prosecutor, ACB, Telangana State.
9. Learned counsel for the revision petitioner argued on the same lines as in the grounds of revision and relied upon the judgments of the Hon'ble Supreme Court in this Court in Sheonandan Paswan v. State of Bihar and others1 and the orders of this Court in Sri Brij Kishore Singh v. The State of Telangana2 and in Anees Mohiuddin @ Ameer @ Abu Ansari v. State of A.P., Rep.by Public Prosecutor3.
10. Learned Public Prosecutor, on the other hand, relied upon the same judgment of the Hon'ble Supreme Court in Sheonandan Paswan v. State of Bihar and others (1 supra) and in Bairam Muralidhar v. State of Andhra Pradesh, rep. by Standing Counsel, ACB4 and of this Court in M. Simon v. The State of Andhra Pradesh5 and in G. Audiseshaiah v. The State of A.P., rep. by Spl.Public Prosecutor6.
1 (1987) 1 SCC 288 2 Crl.R.C. No.832 of 2019, dated 01.11.2019 3 Crl.P. Nos.1296 & 1297 of 2009, dated 17.11.2021 4 (2014) 10 SCC 380 5 Crl.R.C. No.452 of 2008, dated 05.02.2015 6 Crl.R.C. No.2042 of 2006, dated 27.08.2014 Dr.GRR,J 6 Crl.R.C. No.2173 of 2013
11. As seen from the charge sheet, the accused officer was charged for the offences under Sections 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 for disproportionate assets worth Rs.43,62,926/- i.e. from the date of entry of the accused officer into service to 20.11.2007 i.e. the date of house searches conducted by the Inspector, ACB. The accused officer was alleged to be in possession of assets worth Rs.42,61,007/-. His income from all the known sources was arrived at Rs.29,71,360/-. His expenditure was calculated as Rs.30.73,279/- with an excess expenditure of Rs.1,01,919/-.
12. As per the representation given by the accused officer to the Government, the wife of the accused officer was daughter of Wing Commander (Rtd.) Jagannatha Acharya. She was a Diploma Holder in French, working in CIEFL, Hyderabad and Post-Graduate in Ancient History and Archaeology. She worked as a Lecturer till 1996 and after marriage, she started giving tuitions and coaching in French language at home. She was having savings from her service prior to marriage and was earning income after her marriage also from tuitions. She had two brothers, working as Army Officers, and a Dr.GRR,J 7 Crl.R.C. No.2173 of 2013 younger sister. Her immediate younger brother Major Padmapani Acharya died in Kargil operations in June, 1999 and he was awarded Mahaveer Chakra by the Government of India. The wife of late Major Padmapani Acharya was given compensation and death benefits by the Government and out of it, his wife was given Rs.3,00,000/- through D.D. bearing No.247560, dated 10.08.2000, which was credited in her Savings Bank Account No.20163 in Andhra Bank, B.N.Reddy Nagar, Hyderabad. The accused officer also stated that his wife was an income tax assessee with PAN No.AHZPA 3957A, wherein she declared all her known sources of income and acquisitions made by her. She had shown all her sources of income, expenditure and acquisition of assets in the IT Returns filed by her and was paying income tax regularly. The ACB, without considering his family background and antecedents of his in-laws and without considering all the sources of income, had shown that he was in possession of assets disproportionate to his known sources of income by boosting the values of the assets and duplicating several assets and tagged the assets acquired by his wife from her own sources and also had shown the assets which were disposed of long back and also the gifted properties as his acquisitions.
Dr.GRR,J 8 Crl.R.C. No.2173 of 2013
13. He stated in his representation that under the assets schedule, the ACB had shown 22 items. Out of them, he disputed Item Nos.1, 11, 13 to 20 and there was no dispute in respect of item Nos.12, 21 and 22. He further submitted that the ACB was not justified in tagging the assets and expenditure of his wife as his assets and expenditure without considering her sources of income as his income. If at all the income of his wife as per her Income Tax Returns were shown as his income, there were no disproportionate assets at all in his possession. The ACB had not considered all the sources of income of his wife which were clearly shown by her in her income tax returns under the balance sheet and capital account declared periodically. He stated that his wife was dealing in real estate investment and got a profit of Rs.32,59,600/- and had shown all the said profits in her income tax returns filed long prior to the case. He further submitted that there was a surplus of Rs.72,98,910.23 ps. as against disproportionate case projected by the prosecution and he was not in possession of assets disproportionate to his known sources of income. He also stated that as per the Government Memo No.700/SC- D/88-4, dated 13.02.1989, 20% has to be added as bonus on the Dr.GRR,J 9 Crl.R.C. No.2173 of 2013 notional income allowing the margin for errors in calculations and requested to consider his case empathetically.
14. The Government, after careful consideration of the representation, decided to conduct a departmental enquiry on the allegations of possession of assets disproportionate to the known sources of income against the accused officer by withdrawing the prosecution and requested the Director General, ACB to furnish the draft articles of charges, statement of imputations, statement of witnesses and documents relied upon for initiating the departmental action against the accused officer.
15. The Principal Secretary to the Government vide Memo No.24405/Vig.I(2)/2007-4, dated 25.08.2010 requested the Director General, ACB, to take necessary further action. Thereafter, the Special Public Prosecutor, ACB, Hyderabad filed a petition under Section 321 Cr.P.C. stating that on perusal of the Government Order and the material evidence available on record and after applying her mind independently and further reasons recorded by the Government, she was satisfied that it was a fit case for withdrawal of prosecution in accordance with the settled principles of law as laid down by the Dr.GRR,J 10 Crl.R.C. No.2173 of 2013 Hon'ble Supreme Court and sought permission of the court to withdraw the case of prosecution against the accused officer.
16. Notice was issued to the Accused Officer and he reported no objection.
17. The learned I Additional Special Judge for SPE & ACB Cases cum V Additional Chief Judge, City Civil Courts, Hyderabad, observing that no reason was assigned in the Memo issued by the Government for withdrawal of the prosecution of the case against the accused officer and the learned Special Public Prosecutor also did not mention any reason for arriving at her satisfaction to seek consent of the court for withdrawal of the prosecution of the case against the accused officer and the court was not expected to give the consent in a mechanical fashion without application of its mind simply because request was made by the Special Public Prosecutor and the accused reported no objection being the beneficiary, by relying upon the judgments of the Hon'ble Apex Court in R.M. Tewari v. State (NCT of Delhi) and others7, Sheo Nandan Paswan v. State of Bihar and 7 AIR 1996 SC 2047 Dr.GRR,J 11 Crl.R.C. No.2173 of 2013 others8, State of Orissa v. Chandrika Mohapatra and others9, State of Punjab v. United India and others10, Balwanth Singh and others v. State of Bihar11 and of the unreported judgment of the High Court of A.P. in Kuntrapakam Muddukrishnaiah v. The Inspector of Police, ACB, Tiurpathi12, and also observing that the Special Public Prosecutor could have made some efforts to make an independent observation to satisfy herself of a genuine or satisfactory reason or cause to seek permission of the court for withdrawal from the prosecution of the case against the accused officer, but seemed to have acted as a tool in the hands of the Government and more particularly as an accommodating employee of the Government filed the petition mechanically without application of mind, dismissed the same.
18. Section 321 Cr.P.C. deals with withdrawal of prosecution. It reads as follows:
"321. Withdrawal from prosecution: The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect 8 AIR 1987 SC 877 9 1977 Crl.L.J. 773 10 AIR 1987 SC 188 11 AIR 1977 SC 2265 12 Criminal Petition No.5496 of 2007, dated 05.03.2010 Dr.GRR,J 12 Crl.R.C. No.2173 of 2013 of any one or more of the offences for which he is tried; and, upon such withdrawal:-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence-
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."
19. Section 321 Cr.P.C. gives power to the Public Prosecutor for withdrawal of any case at any stage before the judgment is Dr.GRR,J 13 Crl.R.C. No.2173 of 2013 pronounced. Section 321 Cr.P.C. prescribes three requisites to make an order under it, valid.
i) The application should be filed by the Public Prosecutor or an Assistant Public Prosecutor, who is competent to make an application for withdrawal.
ii) He must be incharge of the case.
iii) The application should get the consent of the court before which the case is pending.
20. The State is the master of the litigation in criminal cases.
When the evidence collected during the investigation was meagre and no useful purpose would be served for proceeding with the case against the accused, the court in Chandrika Mohapatra's case (9 supra) upheld the consent and held that meagre evidence was legitimate ground for withdrawal. If the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the material placed before him and the order of consent given by the Magistrate was also after due consideration of various details, the Hon'ble Supreme Court in The State of Bihar v. Ram Naresh Pandey13 held that it was improper for the court to embark upon a detailed enquiry into the facts and evidence of the case. 13
AIR 1957 SC 389 Dr.GRR,J 14 Crl.R.C. No.2173 of 2013
21. In Bairam Muralidhar's case (2 supra), it was held that:
"20. A case under the Prevention of Corruption Act has its own gravity. In Niranjan Hemchandra Sashittal and another v. State of Maharashtra [(2013) 4 SCC 642] while declining to quash the proceeding under the Act on the ground of delayed trial, the Court observed thus:
"25. In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenets of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinising other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism."
21. Recently, in Dr. Subramanian Swamy v.
Director, Central Bureau of Investigation & Anr. [(2014) 8 SCC 682], the Constitution Bench while declaring Section 6A of the Delhi Special Police Establishment Act, 1946, which was inserted by Act 45 of 2003 as unconstitutional has opined that:-
Dr.GRR,J 15 Crl.R.C. No.2173 of 2013 "59. It seems to us that classification which is made in Section 6-A on the basis of status in the Government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988."
And thereafter, the larger Bench further ruled:
"60. Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences."
And again, the larger Bench observed:
"71. Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption of graft or bribe taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker.
Dr.GRR,J 16 Crl.R.C. No.2173 of 2013
72. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation."
22. This Court in Anees Mohiuddin @ Ameer @ Abu Ayub Ansari's case (3 supra) held that:
"9. A careful reading of Section 321 of Cr.P.C. and various precedents on the said provision makes it clear that the only guiding factor which should weigh with the Public Prosecutor while moving an application for withdrawal from prosecution and the Court according permission for such withdrawal is as to whether the interest of public justice is advanced and the application for withdrawal is not moved with oblique motive. Further, the Court, while dealing with an application filed under Section 321 of Cr.P.C., has only to see whether the public Prosecutor has acted properly and has not been actuated by oblique/extraneous considerations. It is not the function of the Court to make a fresh appraisal of the evidence and come to its own conclusion on the question whether there is a triable issue to be investigated by the Court. Although, Section 321 of Cr.P.C. provides no grounds on which an application for withdrawal from prosecution can be filed by the Public Prosecutor, the essential inherent condition is that withdrawal should be in the interest of administration of justice. It is the responsibility of the respective court, in which the withdrawal application has been filed, to scrutinize the reasons behind the withdrawal and check that such withdrawal is not sought for extraneous reasons or against the interest of justice. Furthermore, it is the duty of the court to see that the Public Prosecutor actually applies his/her free Dr.GRR,J 17 Crl.R.C. No.2173 of 2013 mind and not just act as mere mechanical agent of the State government. However, in the cases of this nature, the Hon'ble Supreme Court, added a note of caution that the Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resorting to the provisions of Section 321 of Cr.P.C. It is thus abundantly clear that the ultimate guiding consideration must necessarily be the interest of administration of justice and that is the touchstone on which, the question must be determined. So, the Court has to consider whether the broader cause of public justice would be advanced or retarded by withdrawal/continuation of prosecution."
23. In Sri Brij Kishore Singh's case (2 supra), this Court held that:
"After examining the facts of the present case in light of the opinion and guidelines of the Hon'ble Supreme Court referred as above, I find that the Investigating Agency has presented the case against the revision petitioner/AO as it is a case of disproportionate assets gained by him, whereas after looking into the statistics of income and expenses as has been figured by the Investigating Agency, it is apparent that the Investigating Agency has failed to appreciate the additional income of the revision petitioner i.e., Rental, sale proceeds, salary of his wife, and loan obtained from Credila of HDFC etc. in adding it with the total income, whereas after adding it the revision petitioner's income comes out much more than the expenses incurred by him. While reanalysing the matter, the State Government realised its mistake and, therefore, reviewed its decision. After observing overall the facts and circumstances, I find that once after reviewing the matter, the revision petitioner's income has been found more than the expenses incurred by him, it cannot be said to be a case of disproportionate assets to his income gained by the revision petitioner. Therefore, the continuance of the criminal proceeding against him Dr.GRR,J 18 Crl.R.C. No.2173 of 2013 would be only a futile exercise. Thus, in the light of the aforesaid facts, I am of the considered view that the administration of justice demands to drop the proceedings initiated against the revision petitioner/AO, as I do not find any error in the decision of the State Government."
24. The present case is also a case of disproportionate assets wherein there was an excess expenditure of Rs.1,01,919/-. The accused officer was charged for the offence under Section 13 (2) read with 13 (1) (e) of the PC Act. If the income of the wife of the accused officer was also considered as submitted by him in his representation, the same might not amount to disproportionate to the known sources of income of the accused officer. The State Government, on considering all the circumstances of the case, decided to conduct a departmental enquiry on the allegations of possession of assets disproportionate to the known sources of income against the accused officer. The Government was not totally withdrawing the prosecution against the accused officer, but decided to conduct disciplinary proceedings against him. The continuance of the criminal proceedings might be a futile exercise if the additional income as shown by the accused officer is considered. Hence, this Court does not find any error in the decision of the State Government to withdraw the prosecution case against the accused officer.
Dr.GRR,J 19 Crl.R.C. No.2173 of 2013
25. In the result, the Criminal Revision Case is allowed setting aside the order dated 19.08.2013 passed in Crl.M.P. No.280 of 2013 in CC No.14 of 2013 by the I Additional Special Judge for SPE & ACB Cases cum V Additional Chief Judge, City Civil Court, Hyderabad. The Public Prosecutor, who is incharge of the case, is permitted to withdraw the prosecution case against the revision petitioner-accused officer in CC No.14 of 2010.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J February 23, 2023 KTL