Andhra Pradesh High Court - Amravati

Ponguru Narayana vs The State Of Andhra Pradesh on 6 September, 2022

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                                              Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022




        IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

     CRIMINAL PETITION NOs.3811, 3833, 3834 AND 3835 of 2022

% Dated 06.09.2022

#
Crl.P.No.3811 of 2022

Ponguru Narayana,
s/o. Late Subbaramaiah
R/o. D.No.16-11-540, Haranathapuram,
1st lane, Nellore District                                   .. Petitioner
                            Vs.
$
The State of Andhra Pradesh,
Through Station House Officer, CID P.S
Amaravati, Mangalagiri
Rep. by its Special Public Prosecutor
High Court of A.P. at Amaravati                          .. Respondent

Crl.P.No.3833 of 2022

K.P.V. Anjani Kumar alias Bobby Director, M/s Ramakrishna Housing Private Limited R/o H.No.40-5/3-14 A, Plot No.103, HRT Sri Sai Apartment, Tekkil Road Syam Nagar, Vijayawada Urban Krishna District . Petitioner Vs.

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

Crl.P.No.3834 of 2022

Lingamaneni Ramesh, S/o. Poorna Bhaskar Rao, R/o. D.No.60-2-1/A, Lingamaneni Dream House Gayathri Nagar, Vijayawada Urban Krishna District ..... Petitioner Vs.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

Crl.P.No.3835 of 2022

Lingamaneni Venkaa Surya Rajasekhar s/o. L. Poorna Bhaskar Rao, R/o. D.No.60-2-1/A, Lingamaneni Dream Homes, Gayatri Nagar, Vijayawada (Urban) Krishna District .. Petitioner Vs.

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

JUDGMENT PRONOUNCED ON: 06.09.2022

THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA

1. Whether Reporters of Local newspapers may be allowed to see the Judgments?

2. Whether the copies of judgment may be marked to Law Reporters/Journals

3. Whether Their Ladyship/Lordship wish to see the fair copy of the Judgment?

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

+ THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA

% Dated 06.09.2022

# Crl.P.No.3811 of 2022

Ponguru Narayana, s/o. Late Subbaramaiah R/o. D.No.16-11-540, Haranathapuram, 1st lane, Nellore District .. Petitioner Vs.

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

Crl.P.No.3833 of 2022

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

Crl.P.No.3834 of 2022

Lingamaneni Ramesh, S/o. Poorna Bhaskar Rao, R/o. D.No.60-2-1/A, Lingamaneni Dream House Gayathri Nagar, Vijayawada Urban Krishna District ..... Petitioner Vs.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

Crl.P.No.3835 of 2022

Lingamaneni Venkaa Surya Rajasekhar s/o. L. Poorna Bhaskar Rao, R/o. D.No.60-2-1/A, Lingamaneni Dream Homes, Gayatri Nagar, Vijayawada (Urban) Krishna District .. Petitioner Vs.

$ The State of Andhra Pradesh, Through Station House Officer, CID P.S Amaravati, Mangalagiri Rep. by its Special Public Prosecutor High Court of A.P. at Amaravati .. Respondent

Counsel for the Petitioners : 1. Sri Kanukolanu Sai Sri Sanjay

2. Sri V.V. Lakshmi Narayana

3. Sri G. Subba Rao

Counsel for Respondents : Learned Addl. Advocate General

<GIST:

> HEAD NOTE:

? Cases referred

1. (2018) 5 SCC 341

2. (1998) 1 SCC 1

3. (2018) 1 SCC 196

4. (2016) 1 SCC 152

5. AIR 1980 SC 1632

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

6. 2016 (1) ALT (CRL) 122 (S.C)

7. AIR 2011 SC 312

8. (2018) 6 SCC 454

9. (1994) 6 SCC 260

10. AIR 1980 SC 1632

11. AIR 2012 SC 1676

12. (2021) 2 SCC 427

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA

CRIMINAL PETITION NOs.3811, 3833, 3834 AND 3835 of 2022

COMMON ORDER:

Before commencing arguments, learned Additional Advocate

General raised oral objections and sought My recusal from hearing

these criminal petitions, on the ground of change of roster of criminal

petitions and they should be heard by appropriate Bench having roster;

as such, this Court cannot hear the matters.

The interlocutory application(s) that were filed by the learned

Special Public Prosecutor for Crime Investigation Department were

returned, and thereafter, fresh applications were not filed. Hence,

except oral objections for recusal, no interlocutory application(s) are

filed. However, this Court feels it appropriate to answer the objections

of the learned Additional Advocate General.

The series of events of the criminal petitions are as follows:

1. Originally, these criminal petitions were listed before the Court on

19.05.2022. At request of the learned Public Prosecutor, for

instructions and appearance of Special Public Prosecutor for

C.I.D, they were posted to 26.05.2022.

2. On 26.05.2022, again the Special Public Prosecutor sought time

for appearance of learned Advocate General. Learned counsel for

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the petitioners were heard and learned Special Public Prosecutor

requested for time for appearance of learned Additional Advocate

General, but argued the same. The Court directed the respondent

- police not to take any coercive steps against the petitioners till

next date of hearing and posted the matters to 09.06.2022.

3. On 09.06.2022, the arguments of the learned counsel for the

petitioners were completed, but at request of the learned Special

Public Prosecutor, the matters were posted to 15.06.2022 under

the caption „Part-heard‟ for hearing the learned Additional

Advocate General by extending the interim orders until further

orders.

4. On 16.06.2022, at request of the learned Additional Advocate

General, matters were listed on 17.06.2022.

5. On 17.06.2022, this Court after hearing the learned counsel for

the petitioners and learned Additional General appearing for the

respondent - State, reserved the matters for orders.

A long standing customary practice followed in the common High

Court and still prevailing in this High Court is that, the administrative

control of the High Court vests with the Hon‟ble The Chief Justice alone

and the Hon‟ble Chief Justice is the Master of the Roster. It is his

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

prerogative to constitute Benches of the Court and to allot cases to the

Benches so constituted. The roster dealing with sitting arrangements of

Hon‟ble Judges is released by the order of the Hon‟ble The Chief Justice

and published by the Registrar (Judicial). At the end of the roster „Nota

Bene (N.B)‟ is issued, drawing attention to the information. The N.B

reads as follows:

"All matters, on change of roster, shall stand released and shall be posted before the Bench/s as per the roster, except matters which are reserved for judgment or under the caption „CAV‟ or the matters which are part-heard"

Thus, N.B specifies that, all matters, on change of roster, shall

stand released and shall be posted before the Bench/s as per the

roster, except matters which are reserved for judgment or under the

caption „CAV‟ or the matters which are part-heard.

These matters have a long and chequered history. After listing,

they were not heard instantly. Prior to hearing, they have undergone

several adjournments upon the request made on behalf of the learned

Additional Advocate General. Due to his non-availability and

inconvenience, all the learned counsel for the petitioners insisted for

hearing their arguments and they concluded their arguments on

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

09.06.2022. In the presence of learned counsel appearing for all the

parties, these matters were directed to be listed under the caption part-

heard. This Hon‟ble Court reopened after the end of summer vacation

and as per the roster, these part-heard matters were listed before this

Court as per the cause list released by the Registry by order of The

Hon‟ble The Chief Justice. The administrative control of the High Court

vests with the Chief Justice alone and the Chief Justice is the master of

the Roster and it is his prerogative to constitute Benches of the Court

and allocate cases to the Benches so constituted. As per the prerogative

of the Chief Justice as the Master of the Roster, the cases were listed

before the bench presided over by the learned Judge and the learned

Judge is duty bound to hear the cases listed before him. The Hon‟ble

Supreme Court of India declared umpteen times that the „Chief Justice

in his individual capacity is the Master of Roster and it is his

prerogative to constitute the Benches and allocate the subjects which

would be dealt with by the respective Benches. This issue has been

dealt with by the Hon‟ble Supreme Court in Ashok Pande v. Supreme

Court of India1; State of Rajasthan v. Prakash Chand2 and

Campaign for Judicial Accountability and Reforms v. Union of

(2018) 5 SCC 341

(1998) 1 SCC 1

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

India3.

The position of the Chief Justice of a High Court was elucidated

in a judgment of a three-Judge Bench of the Apex Court in State of

Rajasthan v. Prakash Chand (referred supra). During the course of

the judgment, the following broad conclusions were formulated with

regard to the position of the Chief Justice.

"(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocated cases to the benches so constituted. (3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice. (5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.

(6) That the puisne Judges cannot "pack and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice. (8) That Shethna, J. had no authority or jurisdiction to send for the record of the disposed of writ petition and make comments on the manner of transfer of the writ petition to the Division Bench or on the merits of that writ petition."

(2018) 1 SCC 196

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

In Campaign for Judicial Accountability and Reforms v.

Union of India (referred supra), the Constitution Bench of the Hon‟ble

Apex Court held that the principle which was noticed and rcognized in

the decision of Apex Court in State of Rajasthan v. Prakash Chand

(referred supra) in relation to the jurisdiction and authority of the Chief

Justice of the High Court "must apply proprio vigore as regards the

power of the Chief Justice of India". The position of the Chief Justice

was reiterated with the following observations.

"The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two- Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.

An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated in Prakash Chand (supra), which was stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench."

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

According to Rule (iii) of Part-I of the High Court of Andhra

Pradesh Standing Orders (revised) 2004, The Chief Justice is the Head

of the Judiciary with powers of Administration of the High Court and of

the Administration of justice throughout the State.

In the present cases, all the criminal petitions went through

adjournments on 19.05.2022, 26.05.2022 and they were ordered to be

listed in the causelist in the caption „part heard‟ on 09.06.2022 and

16.06.2022, finally reserved for orders on 17.06.2022. It is to be noted

that, at request of the learned Special Prosecutor, the matters were

listed under the caption „part heard‟ for hearing the learned Additional

Advocate General. Keeping in view of the instruction contained in N.B,

the matters which were reserved for judgment or under the caption

„CAV or matters which are part-heard need not be released in general

course, except with the permission of this Court, or except with the

order of The Hon‟ble The Chief Justice. It is not the case of „pick and

choose‟ of any pending case before this Court. They were listed as per

the roster. Hence, the contention canvassed by the learned Additional

Advocate General is rejected. Moreover, being the highest Law Officer

representing the State, making a request for recusal of Judge is

unwarranted and shall be deprecated.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

CRIMINAL PETITION NOs.3811, 3833, 3834 AND 3835 of 2022

These criminal petitions are filed under Section 438 of Criminal

Procedure Code (for short "Cr.P.C.") by petitioners/Accused Nos.2,3,4 &

5 apprehending their arrest, in Crime No.16 of 2022 of CID Police

Station, Amaravathi, Mangalagiri, Guntur District, registered for the

offences punishable under Sections 120 (B), 420, 34,35,36,37,166,167

and 217 of Indian Penal Code (for short "I.P.C.") and Section 13 (2)

read with 13(1)(a) of Prevention of Corruption Act, 1988, to direct the

concerned Station House Officer to release them on bail in the event of

their arrest, in connection with the above crime.

As the lis in all the petitions is one and the same, all the four

criminal petitions are heard together to pronounce common order.

The petitioners are arrayed as Accused Nos.2 to 5 in the above

crime. The defacto complainant - Mr. A. Ramakrishna Reddy is the

Member of Legislative Assembly, Mangalagiri, Guntur District.

As per the First Information Report, the defacto complainant,

lodged a complaint dated 27.04.2022 with the Additional Director

General of Police, Crime Investigation Department (C.I.D), Andhra

Pradesh, alleging that certain illegal and corrupt activities are

committed by highly placed Government officials in the then

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

Government dispensation between 2014 to 2019 with regard to

designing of the Master Plan of Andhra Pradesh Capital and Capital

City; alignment of inner Ring Road and its connected artery roads and

to cause wrongful gain to certain chosen persons and entities connected

to the decision making authorities, thereby derived maximum

pecuniary benefits, caused corresponding wrongful loss to the general

public and also to the public exchequer, thus amounting to cheating.

On the strength of the complaint, the police registered above crime

against the petitioners/Accused Nos.2 to 5 for the offences punishable

under Sections 120 (B), 420, 34,35,36,37,166,167 and 217 of I.P.C.

Heard Sri Y.V. Ravi Prasad, learned Senior Counsel representing

Sri Kanukolanu Sai Sri Sanjay, Sri Posani Venkateswarulu, learned

Senior Counsel representing Sri V.V. Lakshmi Narayana, Sri

Dammalapati Srinivas, learned Senior Counsel representing Sri G.

Subba Rao, learned Counsel for the petitioners and learned Additional

Advocate General representing learned Special Public Prosecutor for the

State.

At the outset, learned Senior Counsel, Sri Dammalapati Srinivas

contended that, the present complaint filed by the defacto complainant

who is an M.L.A of the party in power after lapse of six years from the

date of alleged offence without explaining any reasons for delay and

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

with malice intention only. He further submits that the inception or

invocation of present complaint is nothing but misuse of criminal law

and abuse of process, in view of Section 146 of The Andhra Pradesh

Capital Region Development Authority (APCRDA) Act, 2014, (hereinafter

„Act, 2014‟) bars initiation of any prosecution against any person while

officiating his duties in pursuance of the Act and Rules.

Section 146 of APCRDA Act, 2014 is extracted hereunder:

"Bar of legal proceedings:

No suit, prosecution or the proceeding shall lie against the Government or Authority or officer or person for any act done or purporting to be done under or in pursuance of the Act or the rules or standing orders made there under."

Sri Dammalapati Srinivas, learned Senior counsel would contend

that the complaint was lodged with an abnormal delay of six years and

such inordinate delay was neither explained in the complaint by the

complainant nor by the police in the First Information Report.

Moreover, the present complaint was lodged with an evil intention and

out of political rivalry after completion of six years from the date of

alleged receipt of representations from the public, even then no cogent

and satisfactory reasons were explained for the delay caused for lodging

the complaint. He would submit that, apart from the petitioners, the

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

other public servants who are alleged to have abused their official

positions, violated the oath of secrecy connected to their office, misused

privileged information and exploited the decision making power by

gross violation of the rules and guidelines, are not arrayed as accused.

He further contended that, except the petitioners, no other public

servant who has allegedly misused the official position or violated the

laws, was arrayed in the complaint. Learned counsel also contended

that, there is no allegation against Accused No.2 that he acquired land

in and around the notified Inner Ring Road area. He further contended

that the contents of the entire complaint does not disclose any

information that Accused No.2 procured vast extent of land in and

around capital region and there are no ingredients to attract any

offence(s) registered in the present crime. He further contended that, as

alleged by the petitioner that due to the change of alignment of Inner

Ring Road, time and again caused wrongful loss to general public is

only invented out of political rivalry, since the complainant belongs to

party in power. Moreso, the defacto complainant invoked the criminal

law after lapse of six years to harass the petitioners by falsely

implicating the petitioners on account of political vendetta cannot be

ruled out. But, there is no complaint or legal proceeding said to have

been initiated by any aggrieved person who represented the defacto

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

complainant or any person who sustained alleged wrongful loss, as

alleged by the defacto complainant in all these years. Except the defacto

complainant, till today, no complaint is made by any aggrieved/sufferer

out of the alleged change of alignment of Inner Ring Road. Moreover,

this Hon‟ble Court in W.P.No.13203 of 2020 and W.P.(PIL) No.179 of

2019 dated 03.03.2022 issued continuing mandamus and directions,

more particularly, for implementation of the Master Plan, including

Inner Ring Road as it is, as per its final notification.

Sri Dammalapati Srinivas, learned counsel also submits that, for

finalization of Master Plan, a public notification was issued calling

objections from the public and 1085 people had submitted their

objections to the notifications, but neither the complainant nor the

alleged affected persons represented about violations to the

complainant. Curiously they did not choose to submit any objections on

any day to anyone of the authorities. Having kept quiet at the time of

submission of objections, the complainant is now agitating after long

gap of six years which speaks the conduct of the complainant.

Moreover, the 1085 objections received were considered, replied and

clarified to their satisfaction. Thereafter, a final notification of Master

Plan was notified by way of publication at the official Gazettee. The said

final notification/Official Gazette was not at all challenged either by the

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

defacto complainant or by the alleged representees of him or by any

objector out of 1085 people. It became final.

It is further submitted by Sri Dammalapati Srinivas, learned

Senior Counsel that, the allegation of awarding on nomination basis for

preparation and framing of the Master Plan for the proposed Capital

City and alignment of Inner Ring Road to M/s. Surbona Jurong

International Private Limited, is also not correct. As nobody turned-up

after calling tenders to act as consultant, thereby a word class company

in preparation of Master Plans i.e. M/s. Surbona Jurong International

Private Limited of Singapore entity was selected on nomination basis.

The work order was valued at Rs.14,79,66,934/-. The contents of the

complaint that the petitioners herein caused wrongful gain to certain

persons and entities is only imaginary, since the subject Inner Ring

Road was not at all taken place and it is confined only to papers. More

particularly, the formation of the said capital city as per it‟s Master Plan

as well as the said Inner Ring Road was abandoned by the present

administration. Therefore, the allegations that Accused No.2 caused

wrongful loss to the general public and loss to public exchequer does

not arise. Further, the ingredients of „cheating‟ attracting the offence

punishable under Section 420 I.P.C are not applicable against Accused

No.2.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

In view of the Bar under Section 146 of the APCRDA Act, 2014,

the allegations leveled against Accused No.2 for the offences referred

above in Crime No.16 if 2022 are not sustainable, as such the

petitioners are entitled for bail in the event of their arrest.

Sri Posani Venkateswarulu, learned Senior Counsel would submit

that the allegation against Accused No.3, that he has wrongfully gained

profit of public money due to change of alignment of Inner Ring Road is

not at all correct, for the reason that, he acquired the entire lands from

the year 1986 upto the year 2014, which was much prior to the

bifurcation of the State. On the other hand, Accused No.3 suffered loss

of Ac.14-00, which are proposed under acquisition for the proposed

alignment of Inner Ring Road, more over all of his lands are 4 to 10 kms

away from the final Inner Ring Road alignment, as such, the allegation

of the complainant that the petitioner/Accused No.3 got wrongful gain

is incorrect and it is only imaginary/wishful thinking of the

complainant. Moreover, the petitioner is not a public servant, as defined

under Section 21 of I.P.C. Therefore, the petitioner/Accused No.3 is not

at all liable for any of the offences mentioned in Crime No.16 of 2022,

since the petitioner/Accused No.3 is not a public servant, thereby,

Section 13(1) of Prevention of Corruption Act, 1988, does not attract

him. He further submits that the defacto complainant is the stranger to

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

the entire alleged sale transactions and he is not aggrieved by any of

these alleged transactions. The complaint does not contain any

particulars about the acquisition of lands from the public and there is

no whisper about the particulars of monetary loss caused to State

exchequer, since it is confined to papers only. As such, it is a fit case to

grant pre-arrest bail to the petitioner.

Sri Y.V. Ravi Prasad, learned senior counsel submits that, the

present complaint is only imaginary in nature and there are no

ingredients to attract any offence enumerated in Crime No.16 of 2022

against the petitioner/Accused No.4, since he is a businessmen and he

would not fall under the definition of „public servant‟ i.e. under Section

21 I.P.C, as such the offence enumerated under Section 13(2) r/w

Section 13(1) of Prevention of Corruption Act, 1988, are not applicable.

He further submits that the alleged Inner Ring Road was not at all

materialized and launched on ground and nothing was spent by the

State for formation of Inner Ring Road and it remained on paper,

thereby, there is no wrongful loss to the general public, as well as to the

public exchequer, as alleged by the complainant. More so, no material

was placed by the complainant or prosecution in support of their

allegations.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

Sri Y.V. Ravi Prasad, learned senior counsel would contend that

the offence under Section 420 of I.P.C is also not attracted, muchless

there are no ingredients attracting other offences also, as narrated in

the crime against the petitioner/Accused No.4. In view of the same,

Accused No.4 is entitled for bail in the event of his arrest and requested

to allow the criminal petition.

Finally, learned counsel for the petitioners contended that, the

allegation against the petitioners that they caused huge loss to the

public exchequer in the form of designing of master plan and change of

alignment of the Inner Ring Road is false and untenable. Further, the

allegations made in the complaint would not attract any of the offences

referred supra, therefore, the petitioners are entitled to be enlarged on

bail in the event of their arrest. The petitioners are apprehending their

arrest in connection with the above crime and in the event of their

arrest, it would cause incalculable loss to their reputation in the

society.

Learned counsel for the petitioners contended that the allegations

made in the complaint would not constitute any offences and when the

Court comes to a conclusion that there is no prima facie material to

conclude that the petitioners did commit any offences, the petitioners

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

can be enlarged on bail, since arrest of the petitioners would amount to

deprivation of their right of liberty guaranteed under Article 21 of

Constitution of India and prayed to enlarge the petitioners on pre-arrest

bail, by exercising discretion and placed reliance on the judgment of the

Supreme Court in Bhadresh Bipinbhai Sheth v. State of Gujarat and

another4.

Learned Additional Advocate General representing the Special

Public Prosecutor for the State filed additional material papers

consisting of Preliminary Enquiry Report, Case Dairy in Crime No.16 of

2022 and Statements of L.Ws.4,5,6 & 9 under Section 161 Cr.P.C,

maps relating to paper changes of alignment of Inner Ring Road and

other correspondence made by the S.R.O and Tahsildar. He contended

that, Commissioner, APCRDA was appointed at the whims and fancies

of Accused Nos. 1 & 2 in violation of Section 21 of the APCRDA Act,

2014, who acted at the behest of Accused Nos.1 & 2 and colluded with

them, thus, caused wrongful loss to the general public and public

exchequer in proposing the Inner Ring Road and by changing the

alignment for wrongful gain to certain chosen persons and entities

connected to Accused Nos.1 & 2.

(2016) 1 Supreme Court Cases 152

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

It is contended that, flouting the laws, Rules and guidelines made

by the Central Vigilance Commission, Accused Nos. 1 & 2 without

calling tenders, awarded the entire consultancy contract work to

Singapore Consultancy viz., M/s. Surbona Jurong International Private

Limited on nomination basis and looted the public exchequer to an

extent of Rs.14,79,66,934/-. He further contended that, the original

alignment for the said Inner Ring Road was prepared on 22.07.2015,

but the alignment was changed to suit their henchmen, more

particularly, Accused Nos.3 to 7 on 04.04.2017 and finally on

31.10.2018 for wrongful gain to the entities and persons who were

Accused Nos.3 to 7.

It is contended that, L.Ws.6 & 7 specifically stated that, as per

the instructions of the then Minister, Municipal Administration &

Urban Development and Vice-Chairman, APCRDA/Accused No.2 and

the Commissioner, APCRDA, the above options of Inner Ring Road were

worked out. L.W.9 stated that there is a huge variation in Inner Ring

Road alignment between center line of IRR submitted by STUP

consultants dated 24.12.2016 with that of Right of Way of IRR

submitted on 04.04.2017.

It is further contended that, in view of the specific statements

made by the L.Ws, the said change of alignments were made as per the

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

instructions of Accused No.2 only. Therefore, Accused No.2 misused the

official position, being the Vice-Chairman of APCRDA and Minister for

Municipal Administration & Urban Development, thereby committed an

offence punishable under Section 13(1) of Prevention of Corruption Act,

1988,apart from the other offences mentioned in the First Information

Report for causing wrongful loss to the public at large and public

exchequer.

The learned Additional Advocate General for the State of Andhra

Pradesh would finally contend that the petitioners being the public

servants abused their official positions, violated the oath of secrecy

connected to their office and misused privileged information, thus

exploited the decision making power. It is also submitted that the

petitioners avoided to disclose the financial interests involved in the

decisions taken, thus, caused wrongful gain to certain chosen persons

and entities connected to the decision, which resulted in wrongful loss

to the public at large and public exchequer. It is further contended that

the allegations made in the complaint on its face value would constitute

offences punishable under Sections 120 (B), 420, 34,35,36,37,166,167

and 217 of I.P.C against the petitioners/Accused Nos. 2 to 5.

Investigation is still pending and in progress and final report is to be

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

filed. Therefore, the petitioners cannot be enlarged on bail, in the event

of their arrest and requested to dismiss the criminal petitions.

Heard learned counsel for the petitioners and learned Additional

Advocate General for the State.

Before going into the real controversy between the parties, it is

apposite to deal with the inherent jurisdiction of this Court under

Section 438 Cr.P.C.

The power of the Court under Section 438 Cr.P.C is purely

discretionary and this Court has to exercise its power judiciously based

on settled principles. But, the circumstances to exercise such

jurisdiction may vary from case to case. The law regarding grant of

anticipatory bail is elaborately discussed by the Constitution Bench of

the Apex Court in Gurbaksh Singh Sibbia and ors v. State of Punjab5,

as the power of granting 'anticipatory bail' is somewhat extraordinary in

character and it is only in exceptional cases where it appears that a

person might be falsely implicated, or a frivolous case might be

launched against him, or "there are reasonable grounds for holding that

a person accused of an offence is not likely to abscond, or otherwise

misuse his liberty while on bail" that such power is to be exercised. No

AIR 1980 SC 1632

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

hard and fast rule can be laid down in discretionary matters like grant

or refusal of bail whether anticipatory or regular bail. The Apex Court

further held that, it cannot be laid down as an inexorable rule that

anticipatory bail cannot be granted unless the proposed accusation

appears to be actuated by mala fides; that anticipatory bail must be

granted if there is no fear that the applicant will abscond. There are

several other considerations, too numerous to enumerate, the combined

effect of which must weigh with the court while granting or rejecting

anticipatory bail. The nature and seriousness of the proposed charges,

the context of the events likely to lead to the making of the charges, a

reasonable possibility of the applicant's presence not being secured at

the trial, a reasonable apprehension that witnesses will be tampered

with and "the larger interests of the public or the state" are some of the

considerations which the court has to keep in mind while deciding an

application for anticipatory bail. Therefore, anticipatory bail can be

granted even in serious cases like economic offences and States should

have no concern for grant or refusal of anticipatory bail, as there can be

no presumption that the wealthy and the mighty will submit themselves

to trial and that the humble and the poor will run away from the course

of justice, any more than there can be a presumption that the former

are not likely to commit a crime and the latter are more likely to commit

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

it. Therefore, while dealing with the application for grant of pre-arrest

bail or anticipatory bail, the Court must take into consideration the

guidelines issued in Gurbaksh Singh Sibbia case. Though, according to

the judgment of the Supreme Court, even in economic offences, the

Court can grant anticipatory bail, subject to satisfaction of other

grounds.

A good deal of misunderstanding with regard to the ambit and

scope of Section 438 Cr.P.C. could have been avoided in case the

Constitution Bench decision of this court in Gurbaksh Singh Sibbia case

(supra) was correctly understood, appreciated and applied. The Hon‟ble

Apex Court laid down the following principles with regard to

anticipatory bail:

a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under section 438.

c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case.

f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

For grant of pre-arrest bail under Section 438 Cr.P.C, certain

principles have been laid down by the Apex Court and the Courts are

bound to follow the guidelines laid down by the Apex Court in

Bhadresh Bipinbhai Sheth v. State of Maharashtra6 case. The Apex

Court only reiterated the 10 guidelines laid down in Siddharam

Satlingappa Mhetre v. State of Maharashtra7 which are as follows:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused 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;

2016 (1) ALT (CRL. ) 122 (S. C)

AIR 2011 SC 312

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

(Emphasis supplied)

In Subhash Kashinath Mahajan vs. State of Maharashtra8,

by following the judgment in the Hon‟ble Apex Court in Siddharam

Satlingappa Mhetre (referred supra), laid down parameters for exercise

of discretion of anticipatory bail having regard to the fundamental right

of liberty under Article 21 of the Constitution and the needs of the

society where such liberty may be required to be taken away. It was

(2018) 6 SCC 454

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

observed that, All human beings are born with some unalienable rights

like life, liberty and pursuit of happiness. The importance of these

natural rights can be found in the fact that these are fundamental for

their proper existence and no other right can be enjoyed without the

presence of right to life and liberty. Life bereft of liberty would be

without honour and dignity and it would lose all significance and

meaning and the life itself would not be worth living. That is why

"liberty" is called the very quintessence of a civilised existence. The

fundamental rights represent the basic values enriched by the people of

this country. The aim behind having elementary right of the individual

such as the Right to Life and Liberty is not fulfilled as desired by the

Framers of the Constitution. It is to preserve and protect certain basic

human rights against interference by the State. The inclusion of a

chapter in the Constitution is in accordance with the trends of modern

democratic thought. The object is to ensure the inviolability of certain

essential rights against political vicissitudes. Life and personal liberty

are the most prized possessions of an individual. The inner urge for

freedom is a natural phenomenon of every human being. Respect for

life, liberty and property is not merely a norm or a policy of the State

but an essential requirement of any civilised society. The object of

Article 21 is to prevent encroachment upon personal liberty in any

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

manner. Article 21 is repository of all human rights essential for a

person or a citizen. A fruitful and meaningful life presupposes life full of

dignity, honour, health and welfare. In the modern "Welfare

Philosophy", it is for the State to ensure these essentials of life to all its

citizens, and if possible to non-citizens. While invoking the provisions of

Article 21, and by referring to the oftquoted statement of Joseph

Addison, "Better to die ten thousand deaths than wound my honour",

the Apex Court in Khedat Mazdoor Chetna Sangath v. State of M.P9

posed to itself a question "If dignity or honour vanishes what remains of

life?" This is the significance of the Right to Life and Personal Liberty

guaranteed under the Constitution of India in its Third Part.

Article 3 of the Universal Declaration of Human Rights, 1948

says: " Everyone has the right to life, liberty and security of person."

Article 9 provides that, No one shall be subjected to arbitrary

arrest, detention or exile." Article 10 says that, "10. Everyone is entitled

in full equality to a fair and public hearing by an independent and

impartial tribunal, in the determination of his rights and obligations

and of any criminal charge against him.

According to the Report of the National Police Commission, when

the power of arrest is grossly abused and clearly violates the personal

(1994) 6 SCC 260

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

liberty of the people, as enshrined under Article 21 of the Constitution,

then the courts need to take serious notice of it. When conviction rate is

admittedly less than 10%, then the police should be slow in arresting

the accused. The courts considering the bail application should try to

maintain fine balance between the societal interest vis-à-vis personal

liberty while adhering to the fundamental principle of criminal

jurisprudence that the accused is presumed to be innocent till he is

found guilty by the competent court.

The gravity of charge and the exact role of the accused must be

properly comprehended. Before arrest, the arresting officer must record

the valid reasons which have led to the arrest of the accused in the case

diary. In exceptional cases the reasons could be recorded immediately

after the arrest, so that while dealing with the bail application, the

remarks and observations of the arresting officer can also be properly

evaluated by the court.

It is imperative for the courts to carefully and with meticulous

precision evaluate the facts of the case. The discretion must be

exercised on the basis of the available material and the facts of the

particular case.

NV,J Crl.P.Nos.3811, 3833, 3834 and 3835 of 2022

A great ignominy, humiliation and disgrace is attached to the

arrest. Arrest leads to many serious consequences not only for the

accused but for the entire family and at times for the entire community.

Most people do not make any distinction between arrest at a pre-

conviction stage or post-conviction stage.

However, the law regarding grant of anticipatory bail is

elaborately discussed by the Constitution Bench of the Apex Court in

Gurbaksh Singh Sibbia and Ors. v. State of Punjab (referred supra),