Andhra Pradesh High Court - Amravati

A B Venkateswara Rao vs The State Of Andhra Pradesh on 7 January, 2021

Bench: Lalitha Kanneganti

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

THURSDAY, THE SEVENTH DAY OF JANUARY,
TWO THOUSAND AND TWENTY ONE epi.

:PRESENT:
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI

IA No. 1 OF 2021
IN
CRLP NO: 71 OF 2021

Between:
A.B. Venkateswara Rao, S/o Late Sri Balaswamy,
...Petitioner
AND
1. The State Of Andhra Pradesh, rep. by its Secretary, Home Department, Secretariat,
Velagapudi Village, Tullur Mandal, Guntur District.
2. The Director General of Police (HoPF), Government of Andhra Pradesh. Mangalagir',
Guntur District.
3. The Director General (Anti Corruption Bureau) Bus Bhavan, Vijayawada, Krishna
District.
4. The Additional Director of Police, (CID) DGP Office, Mangalagiri, Guntur District.
...Respondents
Petition under Section 482 Cr.P.C. praying that in the circumstances stated in the
affidavit filed in support of the petition, the High Court may be pleased direct the respondents
and / of their subordinates not to arrest the petitioner, pending disposal of CRLP No. 71 of 2021,

on the file of the High Court, in the interest of justice

The petition coming on for hearing, upon perusing the Petition and the affidavit filed in
support thereof and upon hearing the arguments of Sri Madhava Rao Nallurt, Advocate for the
Petitioner and the court while directing issue of notice to the Respondents herein to show cause
as to why this application should not be complied with, made the following arder: (The receipt of

this order will be deemed to be the receipt of notice in the case).

ORDER

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

I.A.No.1 of 2021 in CRIMINAL PETITION No.71 of 2021 ORDER:

This interlocutory application is filed to direct the respondents not to arrest the petitioner pending disposal of the

criminal petition.

2. Criminal petition under Section 438 of Code of Criminal Procedure, 1973 (for short "Cr.P.C.) is filed seeking pre-arrest bail to the petitioner pending investigation and trial of the case arising out of procurement of surveillance / security equipment by the

Andhra Pradesh Police, allegedly involving the petitioner.

3.. The averments in the petition in nutshell are that the petitioner is an I.P.S Officer, who worked in various capacities in the combined State of Andhra Pradesh and later allotted to the State of Andhra Pradesh. He is a recipient of Indian Police Medal for meritorious services and Presidents' Police Medal for distinguished service. Pursuant to the request made by the Additional Director General of Police (Intelligence) dated 14.06.2017 for procurement of surveillance equipment, the Director General of Police (DGP) had constituted a "purchase committee and a technical committee for examining and finalizing the terms and procurement of the equipment. The petitioner was not a party to both the committees. The tender process was entrusted to the State Trading Corporation of India (STCI, a Government of India enterprise. As 'the minimum cost of the

tenderer had far exceeded the budget, a meeting of purchase

committee was convened on 26.06.2018, which was tended by the petitioner deputizing for Inspector General of Police (SIB), who was out of station and as the petitioner was holding additional charge of the said post. In the - said meeting chaired by the Chairman of the purchasing committee and attended by 8 IPS officers, it. was decided to scale down the specifications to suit the budget and to refloat the tender. Thereafter tenders were floated by STCI and purchase order dated 05.10.2018 was issued to the successful bidder by STC]. Later, the same was cancelled by the

DGP vide proceedings dated 24.12.2018. .

4. It is stated that after the new Government sworn in on 30.05.2019, the petitioner was transferred from the post of Director General of Police (ACB) and was asked to report to General Administration Department (GAD) for posting, petitioner was relieved on the very next day and he reported to GAD. Petitioner waited for several months for posting and made representations dated 06.01.2020 and 28.01.2020 requesting for payment of salary and posting. Asa response to the re esentation the Government issued G.O.Ms.No.18 dated 08.02.2020 placing him under suspension pending enquiry. Challenging the suspension order, O.A.No.020/0149/2020 was filed before the Central Administrative Tribunal Hyderabad and the tribunal by order dated 17.03.2020 has dismissed the O.A. Questioning the same, the petitioner filed W.P.No.8185 of 2020 before this Court, which was allowed by order dated 22.05.2020 quashing the order of the tribunal and the suspension order. Assailing the same, the

State has filed S.L.P.No.8024 of 2020 before the Hon'ble Apex

Court and by order dated 26.11.2020 the Apex Court has stayed

the order passed by this Court.

5. It is stated that pursuant' to the observations made by the Hon'ble Apex Court, the State Government by G.O.Rt.No.2000 dated 18.12.2020 has served Articles of Charge calling for the petitioner's explanation. Petitioner apprehending arrest has filed W.P.No.13649 of 2020 before this Court. While dismissing the said writ petition by order dated 30.09.2020 a Coordinate Bench of this Court has made the following observations:

"Thus, as per the material available on record, as on today,

the 'enquiry so far conducted disclosed violation of All India |

- Services (Conduct) Rules by the petitioner as referred above, but no enquiry was conducted in the angle of criminal misconduct."

"However, in case of registration of any crime against the

petitioner and if the State contemplates to arrest the petitioner in connection with any crime, he may take advantage of the said interim order passed by the High Court of Punjab and Haryana in Sumedh Singh Saini Vs. State of Punjab (CRM-23578-2020 in CRM-45242-2018) and the Hon'ble Apex Court."

"If really the petitioner has apprehension of his arrest in connection with any cognizable or non-bailable offence, he may approach the competent Court under Section 438 of Cr.P.C and . seek appropriate order, but by exercising power under Article 226 of the Constitution of India, this Court cannot issue such direction."

"Taking into consideration nature of allegations and the plea of the petitioner that there is no financial involvement and no loss is caused to the State on account of his attendance to the meeting except tender processing cost. If State concludes that there is reasonable ground to _ believe that the petitioner committed any cognizable offence punishable with imprisonment for less than 7 years, the State is bound to follow the guidelines issued by the Apex Court in Arnesh Kumar Vs. State of Bihar ([2014] 8 SCC 273)."

The petitioner has approached this Court by way of this

petition filed under Section 438 of Cr.P.C. seeking pre-arrest bail,

apprehending his arrest along with an interlocutory application

seeking protection pending disposal of the criminal petition.

6. Heard Sri B.Adinarayana Rao, learned Senior Counsel appearing on behalf of the petitioner and the learned Advocate

General appearing on behalf of the respondents-State.

7. When this criminal petition came up before this Court on 06.01.2021 and while the Court was about to adjourn the matter to facilitate the Public Prosecutor for obtaining instructions, learned Senior Counsel submitted that in view of the urgency involved, along with the criminal petition, he filed the present application seeking interim protection pending criminal petition and he wants to demonstrate before the Court the ungency and apprehension of the petitioner. Learned Public Prosecutor has opposed the said request and submitted that he require some time to get instructions. In view of the urgency expressed, the matter

was directed to be listed on 07.01.2021 and to print the name of

the Standing Counsel for ACB in.the cause list.

8. Today when the matter came up for hearing, learned Senior Counsel submitted the events which have taken place right from 30.05.2019 i.e. the day on which the new Government sworn in and the series of events that have taken place demonstrates that the apprehension of the petitioner is well placed. He submits that as stated in the petition on 30.05.2019 the petitioner was transferred from the post of Director General, ACB and was asked to report to General Administration Department and thereafter for

7 months he was neither paid salary nor given posting. After giving

several representations, he was placed under suspension pending

cee AE,

enquiry. He submits that from 08.02.2020 till the interim orders passed by the Hon'ble Apex Court on 26.11.2020, the respondents have not conducted any enquiry, however, pursuant to the observations made by the Apex Court, they served articles of

charge calling for the explanation.

9. Learned Senior Counsel draws the attention of this Court to

the Articles of Charge, which reads thus:

ARTICLE OF CHARGE - I

That the said Charged Officer (C.O.) initiated the process of procurement of AEROSTAT & UAV for Andhra Pradesh Police under the scheme of Modernization of Police Force (MOPF) for the year 2017-18 to be used in anti-extremist and security operation and actively pursued the promotion and finalization of a firm by name M/s. RT Inflatable Objects Limited/M/s. RTLTA Systems Limited of Israel - pressurizing the members of the Committee with a clear objective of selecting the company as a supplier of the security equipment by compromising with quality, technical capability, demonstration and purchase procedures apart from warranty and AMC guarantees only to get illegal benefit to his son Sri. A. Chetan Sai Krishna, CEO of Akasam Advanced Systems Limited who is the Indian Representative of the said Company and thereby compromised public interest and violated the All India Services

(Conduct) Rules 1968 namely Rule 3(1A)(2) & 3(2B)(iv) and 3(2B)(vii).

ARTICLE OF CHARGE - II The charged officer (C.O.) failed to maintain absolute integrity and honesty and violated rule 4(2) & (3) of the All India Services (Conduct) Rules 1968 in as much as he has not informed the Government of Andhra Pradesh about the employment of his son as the representative of the M/s. RT Inflatable Objects Limited/M/s. RTLTA Systems of Israel from which the security and surveillance equipment for Modernization. of Andhra Pradesh Police force was sought to be purchased. ARTICLE OF CHARGE - III The Charged Officer knowingly and surreptitiously planned the conclusion of the purchase by Andhra Pradesh State of Security and Surveillance equipment from the M/s. RT Inflatable Objects Limited/M/s RTLTA Systems Limited of Israel and caused a financial loss of Rs.10,00,000/- (Rupees ten lakhs) to the Government of Andhra Pradesh that was withheld by the State Trading Corporation (STC) as processing fee, after the State of Andhra Pradesh cancelled the purchase agreement

and sought the return of payment made to STC to the tune of Rs.24.17

Crores and thereby consciously violated All India Services (Conduct) Rules 1968 Rule 3(2B)(iv),(v)&(x).

10. Learned Senior Counsel submits that in the entire Articles of Charge, there is no whisper about any kind of criminal act or criminal misconduct on the part of the petitioner. On 08.02.2020 one Sri Pudi Srihari, Chief Public Relations Officer to the Chief Minister had released a note of seven pages from his phone No.9505555292 to a Whatsapp group, of which he was one of the Administrator, to the journalists, spelling out the version of the Government in placing the petitioner under suspension, wherein he has gone to the extent of stating that based on the facts uncovered via investigation, prima facie evidence is established on the grave misconduct and irregularities, which were willfully committed by the accused after resulting out of conscious and premeditated act of treason towards the State and Nation. It is stated that the Whip of the Government also made similar kind of allegations against the petitioner and the news articles published in Sakshi newspaper on 09.02.2020 and on 10.02.2020 creates

any amount of apprehension in the mind of the petitioner about

against the

the kind of action the State is going to initiate

| petitioner.

11. Learned Senior Counsel submits that in the recent past the manner in which the F.I.Rs were registered, searches were made contrary to the procedure established under law, Dt rsons were arrested on Friday evenings or on weekends and producing them before the Magistrates/Special Judges for remand and thereby denying their legal assistance are the other reasons for his

apprehension of arrest. He submits that if the police resort to

similar action against the petitioner; who is a civil servant and if he is kept in judicial custody for more than 48 hours that would become a, ground for issuing fresh suspension order and apart from that it will have an impact on the petitioner's right to reputation. Learned Senior Counsel submits that right from 30.05.2019 till now the manner in which the things were happening forms basis for genuine apprehension of the petitioner which compelled him to approach this Court. He submits that pending anticipatory bail petition in view of the immense threat, he

is entitled for an interim relief.

12. Learned Senior Counsel in support of his contention, relied on the decision of the Hon'ble Apex Court in Sushila Aggarwal and others Vs. State (NCT of Delhi) and another!. He also relied on another judgment of the Apex Court in Gurbaksh Singh Sibbia Vs. State of Punjab?. Learned Senior Counsel , submits that while dismissing W.P.No.13649 of 2020 by order dated 30.09.2020 this Court observed that if the petitioner has apprehension of his arrest in connection with any cognizable or non-bailable offence, he may approach the competent Court under Section 438 of Cr.P.C and seek appropriate order. Hence, the petitioner is before this Court. Petitioner has no clarity in what manner and under what provisions the respondents are going to set the criminal law into motion either by invoking the provisions of Prevention of Corruption Act or under the indian Penal Code, as such the petitioner has approached this Court. Though in the earlier order |

the learned Judge has observed that the police shall follow the

1 (2020) 5 SCC 1 ? (1980) 2 SCC 565

procedure contemplated under Section 41-A of Cr.P.C and the guidelines issued by the Apex Court in Arnesh Kumatr's case, the petitioner reliably learnt that respondents are trying to. implicate him under the offences, where the punishment is more than seven

years and proposing to arrest him.

13. Per contra, learned Advocate General submits that the jurisdiction of this Court in entertaining the petition is not disputed. He submits that the apprehension of the petitioner is basing on some Whatsapp messages and articles in the newspaper published in the month of February, 2020 and thereafter the petitioner approached this Court by filing writ petition, which was ended up in dismisssal. He submits that the apprehension of the petitioner is not sustainable and when the petitioner hds.no clarity under what provision of law and on what basis, the police are going to register the case against the petitioner and on such illusion he cannot invoke the jurisdiction of this Court under Section 438 of Cr.P.C. Learned Advocate General also relied on the very same judgment in Sushila Aggarwal (supra) and submits that the petitioner failed to make out any case for exercising the power of this Court under Section 438 of Cr.P.C. He submits that the jurisdiction under Section 438 of Cr.P.C is not unguided and uncanalised. Petitioner failed to make out any case for grant of anticipatory bail / interim bail and the powers conferred under Section 438 of Cr.P.C have to be exercised aie and

exceptionally.

14. Learned Advocate General concluded his arguments by

stating that as of now the State has not set the criminal law into

motion, but however, whenever such action is initiated the petitioner can approach the Court, the petitioner has failed to make out any grounds to seek relief from this Court. He further submits that if at all any action is initiated, they will follow the procedure contemplated under relevant laws and the Criminal

Procedure Code.

15. . Having heard the learned Senior Counsel for the petitioner and the learned Advocate General for the respondents, the issue that falls for consideration is,

Whether the petitioner has made out reasonable grounds for grant of interim protection pending

criminal petition?

16. At this juncture, it is appropriate to have a look at Section 438 of Cr.P.C. which reads thus:

438. Direction for grant of bail to person apprehending arrest. | (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; 'and that Court may, after taking into consideration, inter alia, the following factors, namely:--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

" (iii) the possibility of the applicant to flee from justice; and.

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory

bail, it shall be open to an officer in-charge of a police station to

ees

arrest, without warrant the applicant on the basis of the accusation apprehended in such application. |

(1A) Where the Court grants an interim order under sub- section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a-reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail

shall be obligatory at the time of final hearing of the application and . passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from © disclosing such facts to the Court or to any police officer; .

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) 'such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section. | (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the

Court under sub- section (1).

17. Under Section 438 (1) of Cr.P.C., this Court has got the power to grant interim protection even before issuing the notice to the Public Prosecutor in the facts and circumstances of the case.

The reasons as narrated in the petition and the submission made

by the learned Senior Counsel demonstrates the urgency involved in the case which compelled this Court to consider the interim

application.

18. The petitioner being a top most IPS Officer of the State, being a recipient of President Police Medal for distinguished service, a Police Medal for meritorious services and who has no adverse remarks in his entire service which is not disputed by the respondents, has come before this Court apprehending his arrest in respect of a transaction which has taken place in the year 2017 and admittedly, the financial loss caused to the Government is Rs.10 lakhs. In respect of that transaction, petitioner was suspended on 08.02.2020 and on 18.12.2020 Articles of Charge were framed pursuant to the orders of the Hon'ble Apex Court. Even in the Articles of Charge, there is no element of criminal misconduct or no enquiry in that regard was conducted. However, the Whatsapp messages sent by the Public Relations Officer and the statement of Whip' of the Government also indicates that the anticipation of the petitioner is: well-founded. Learned Advocate General while arguing the matter repeatedly submitted that as of now they have not initiated any action and whenever they initiate any action, they will follow the provisions under the relevant laws, which also strengthens the case of the petitioner that there is

apprehension of arrest.

19. The Hon'ble Apex Court in Joginder Kumar Vs. State of U.P.3 held that no arrest can be,made because it is lawful for the

police officer to do so. The existence of the power to arrest is one

3 1994 Crl.L.J 1981

thing. The justification for the exercisé of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lockup of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness of a complaint and a reasonable belief both as to the person's

complicity and even so as to the need to effect arrest.

20. The Hon'ble Apex Court in Sushila Aggarwal (supra), which is relied on by both learned Senior Counsel as well as learned

Advocate General held thus: |

"92.1. Consistent with the judgment in Gurbaksh Singh Sibbia Vs. State of Punjab ((1980) 2 SCC 565), when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable té one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for

apprehending arrest.

med eRe

21. The Hon'ble Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra' relying on Gurbaksh Singh Sibbia (supra-2) added a new dimension to the interpretation of Section 438 of Cr.P.C by specifying that there is no requirement to make out a special case for exercising the power under Section 438 of Cr.P.C and held that custodial interrogation should be avoided in cases where the accused has joined investigation and is fully cooperating with the investigating agency and is not likely to

abscond.

22. The Court while granting pre-arrest bail has to take into consideration several factors, nature of allegations, chances of accused absconding, hampering the investigation process, antecedents of the accused, likelihood of repeating the offence, tampering the evidence and influencing the witnesses. This Court prima facie looking at the facts and circumstances of this case, particularly the Whatsapp messages of Public Relations Officer of the Chief Minister, statement given by Whip of the Government, delay and laches in initiating the departmental proceedings, is of the view that the petitioner could make out reasonable grounds for his arrest. Further, taking into consideration the antecedents of the petitioner and Articles of Charge, this Court deems it appropriate to direct the respondents not to take any coercive steps against the petitioner in case arising out of procurement of surveillance / security equipment by the Andhra Pradesh Police for

a period of two weeks.

* (2011) 1 SCC 694

22. In the meantime, the respondents are directed to file their

counter. Post on 18.01.2021.

Sd/-K.TataRao .

ASSISTANT, REGISTRAR : it fh _

TRUE COPY/) SECTION OFFICER: /

For ASSISTANT REGISTRAR To,

1. The Secretary, Home Department, State Of Andhra Pradesh, Secretariat, Velagapudi Village, Tullur Mandal, Guntur District. (By RPAD)

2. The Director General of Police (HoPF), Government of AP, Mangalagiri, Guntur District.( By RPAD)

3. The Director General ( Anti Corruption Bureau) Bus Bhavan,, Vijayawada, Krishna District.( By RPAD)

4. The Additional Director of Police, (CID) DGP Office, Mangalagiri, Guntur District.( By RPAD)