Kolusu Partha Sarathy vs The State Of Andhra Pradesh
2021 Latest Caselaw 1864 AP

     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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                                                              Crl.P.No.1694/2020

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

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.

                                         __________________________
                                          U. DURGA PRASAD RAO, J
6th May, 2021
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      THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO




               Criminal Petition No.1694 of 2020




                        6th May, 2021
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     Crl.P.No.1694/2020