Andhra Pradesh High Court - Amravati

Kondaveeti Srinivasa Rao vs The State on 16 November, 2023

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

             CRIMINAL PETITION No.3327 of 2019

ORDER:

The sole accused in C.C.No.7 of 2018 pending on the file

of learned Special Judge for SPE and ACB Cases, Vijayawada

filed this Criminal Petition under Section 482 of Code of

Criminal Procedure (Cr.P.C.). Learned Special Judge took

cognizance for the offences under Section 13(2) read with

13(1)(e) of the Prevention of Corruption Act, 1988 and

summoned the accused. Questioning the order of taking

cognizance and issuance of summons, the present petition is

filed praying the Court to quash the proceedings against him.

2. Respondent is the State which has initiated prosecution

against the petitioner.

3. The petitioner joined Government service on 07.11.1981

as Assistant Commercial Tax Officer and from time to time he

was promoted from one rank to the other and finally he was

working as Deputy Commissioner of Commercial Taxes, Kadapa

by 08.10.2010. Based on some credible information, a case of

possession of assets disproportionate to the known sources of

legal income, Crime No.21/RCA-ACB-VJA/2010 under Section

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13(2) read with 13(1)(e) of the Prevention of Corruption Act was

registered on 06.10.2010. The investigating agency obtained

search warrants from the Special Judge for SPE and ACB

Cases, Vijayawada and conducted searches at the residential

house of the accused officer at Kadapa and at the residential

houses of his various relations and also at the office of the

accused officer and bank lockers were searched and the

searches lasted between 08.10.2010 and 11.10.2010. Check

period was taken from 31.12.1995 to 08.10.2010. Accused

officer's known sources of legal income for the check period was

shown to be Rs.78,53,578/-. The expenditure for the check

period was alleged to be Rs.33,69,738/- and his likely savings

was alleged to be Rs.44,83,840/-. However, his assets were

found to be Rs.4,17,74,001/- and thus, the disproportionate

assets allegedly possessed by the accused officer were stated to

be Rs.3,72,90,161/-. On 08.10.2010 he was arrested and

thereafter he was remanded to judicial custody and thereafter

he was released on bail on 08.12.2010. Investigating agency

obtained G.O.Ms.No.77 dated 16.02.2018 from the Government

whereunder sanction for prosecution was obtained. On

completing the investigation listing 84 witnesses along with

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Annexure-I (abstract of assets), Annexure-II (abstract of

income), Annexure-III (abstract of expenditure), Annexure-IV

(abstract of disproportionate assets), the charge sheet was laid.

4. Before adverting to the contentions one more fact is to be

recorded here. It is mentioned in the charge sheet that earlier

against this very accused officer Crime No.6/RCA-ACB-TPT/995

under Section 13(2) and 13(1)(e) of the Prevention of Corruption

Act was registered on 21.12.1995 when this accused officer was

Commercial Tax Officer-II at Tirupati and that crime was

registered for the check period from 07.11.1981 to 30.12.1995.

However, on accepting the recommendation of the Bureau

Government dropped further action against the accused officer

in that case. By virtue of that in the present case the check

period has been taken from 31.12.1995 to 08.10.2010. In other

words the period that was covered by dropped proceedings was

excluded from consideration.

5. As stated earlier, the learned Special Judge took

cognizance and served summons to the accused.

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6. Questioning the legality and validity of the proceedings

valiant arguments are submitted by Sri V.R.Machavaram, the

learned counsel for petitioner.

7. Smt. A.Gayatri Reddy, the learned Special Public

Prosecutor submitted arguments. At the bar legal authorities

are cited.

8. One of the contentions raised by the petitioner is that the

sanction order is defective in all respects. It does not contain

any reference to any of the annexures which have been filed

along with the charge sheet and investigating agency obtained

sanction by suppressing material facts and evidence. Copy of

the sanction order is available with the papers presented before

this Court for its consideration. Special Chief Secretary to

Government (CT, Excise and R&S) exercising powers under

Section 19(1)(b) of the Prevention of Corruption Act, acting for

the Government of Andhra Pradesh accorded sanction for

prosecution of the accused officer. Accordingly, G.O.Ms.No.77

dated 16.02.2018 was issued. A perusal of this shows that it

runs into three pages containing detailed consideration of facts

in nine paragraphs. Paragraph No.8 indicates that the

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Government had considered the copy of First Information

Report, inventory proceedings prepared at the time of various

searches, statements of all the witnesses and the relevant

record and the final report (charge sheet) and since all of them

were placed before the Government it considered all these

documents and considering all the facts and circumstances, it

granted sanction for prosecution of the accused officer. At

Paragraph No.4 what is mentioned is relevant to be noticed and

the same reads as below:

"4. AND WHEREAS, initially at the time of registration of the case, the then Inquiring Officer has taken the Check Period from 07.11.1981 to 08.10.2010 i.e., from the date of joining into service to the date of searches. But subsequently the check period for calculation of the Assets, Income and Expenditure of Sri Kondaveeti Srinivasa Rao is taken from 31.12.1995 (i.e., subsequent to the previous check period in Cr.No.6/RCA-TPT/1995) till date of house searches i.e., on 08.10.2010."

9. From the above it appears that the sanctioning authority

had considered the charge sheet along with annexures and

accompanying material and then order sanctioned. Therefore,

there appears no force in the contention of the petitioner that

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the sanctioning authority was not furnished with all the

material facts and evidence cannot be accepted as correct.

Therefore, this contention of the petitioner is negatived.

10. Another prime contention raised for the petitioner is that

the investigating officer did not conduct fair investigation and

failed to collect relevant evidence such as statement of

Smt. K.Prameela who is the wife of the accused officer and her

agricultural income and also further details are narrated in the

grounds mentioned in the criminal petition. Thus, unfair

investigation causing prejudice to the accused is the substance

of this contention. In this regard one requires to keep in mind

that a prosecution against an individual may have occasioned

by virtue of a complaint filed by a complainant before a

competent Court which enquires into it and proceeds further

and an information filed before police resulting in investigation

and filing of a charge sheet. Questions of mala fides and

wreaking vengeance could be considered in a quash petition

where the prosecution was initiated on a complaint. However,

the mala fides or unfairness on part of the informant when

resulted in investigation and in filing of a charge sheet then it

does not call for interference under Section 482 Cr.P.C. That

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seems to be the law laid down in various judgments of the

Hon'ble Supreme Court of India which were reiterated in

M/s. Zandu Pharmaceutical Works Ltd. v. Md. Sharaful

Haque1. In the case at hand, petitioner questions the fairness

of the investigating officer with reference to the kind of evidence

he omitted to collect. What he omitted to collect may be

perilous to the prosecution but it is a matter to be considered at

a different stage but not in this petition. At any rate going by

the long line of precedent such unfair investigation is a matter

for consideration at a different stage and not here. Therefore,

this contention is negatived.

11. The main contention raised by the learned counsel for

petitioner hinges on two aspects. Petitioner states that check

period should be taken from 31.12.1995 to 08.10.2010.

However, the annexure would indicate that the check period

was taken from 07.11.1981 to 30.09.2010. Despite dropping

the earlier F.I.R. and criminal proceedings, the State has

resorted to this practice which is unfair and against law. As a

consequence of this, according to learned counsel, the assets

(2005) 1 SCC 122

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that were acquired earlier to 31.12.1995 should be omitted. In

addition to it various instances of calculation errors are

narrated in the petition. It further alleges that wife and son of

the accused officer have independent sources of income and are

assessees and all their assets are included in the assets of the

accused officer which is incorrect. The values concerning fixed

deposit receipts were wrongly shown and that the record

produced itself would indicate that instead of taking the money

that was deposited at the first instance it has taken the value by

considering the accrued interest also and thereby income is

inflated and shown. During the course of investigation, accused

officer sought for information from the investigating agency but

they did not supply information sought for. Properties inherited

and properties bequested were all added as the assets acquired

by him from his own income which is incorrect. Sri K.Bhanu

Pradeep is the son of the accused officer and Smt. K.Prameela is

the wife of the accused officer and they owned properties and

they were not examined and the tenants were not examined to

find out the actual rental income but instead investigating

agency took the values of possible rents as supplied by the

Municipal Authorities. All the acquisitions were notified to the

Dr. VRKS, J Crl.P.No.3327 of 2019

employer during the course of his employment by the accused

officer and therefore, they cannot be considered as

disproportionate assets to the known sources of the income.

Since the electricity charges and water charges were paid by the

tenants, they should not have been considered as expenditure

on part of the accused officer but the investigating agency

showed them as expenditure on part of the accused officer

which is incorrect and by adopting such practice it reduced the

total income of the accused officer. It is argued that on

appropriate calculations as stated by the petitioner it would be

found that his income during the check period is

Rs.2,20,48,312/- and expenditure during the check period was

Rs.16,88,372/-. The income minus expenditure is likely

savings which is at Rs.2,03,59,940/-. The disproportionate

asset is - assets minus likely savings and on so calculating

there is minus assets of Rs.21,80,940/- and therefore, there is

no disproportionate assets. It is for these reasons, learned

counsel seeks quashment of the proceedings.

12. Detailed answers to these contentions were also filed by

the respondent-State explaining the incorrectness of

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contentions and offering justifications for the charge mentioned

allegations.

13. For two reasons this Court cannot agree with the

contentions raised by the petitioner. The contentions raised

show about addition of assets of other family members which

according to the petitioner ought not to have been shown as

they are independent. That is a matter of defence which has to

be dealt with at a different stage of a case by an appropriate

Court. If there is prima facie valid sanction, then on the mode

of legal investigation a proceeding may not be quashed is the

law laid down by the Hon'ble Supreme Court of India in State

Inspector of Police, Visakhapatnam v. Surya Sankaram

Karri2. When similar questions of glaring errors in calculation

was the subject matter, one would see that such aspects were

held to be appropriately considered by the trial Court while

considering framing of charges or discharging the accused and

not under Section 482 Cr.P.C. by this Court vide Kanchan

Kumar v. The State of Bihar3.

(2006) 7 SCC 172

(2022) 16 S.C.R. 188

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14. Earlier on registration of F.I.R. in this case this accused

officer filed Crl.P.No.5171 of 2011 seeking to quash it. A

counter was filed by the Government. After due hearing and

after furnishing elaborate reasons, a learned Judge of this Court

dismissed that petition. Aggrieved by that, this very petitioner

preferred SLP (Crl.) No.7664 of 2017. The Hon'ble Supreme

Court of India by an order dated 21.03.2018 dismissed the

special leave petition. The order passed by their Lordships is

extracted here:

"UPON hearing the counsel the Court made the following ORDER

We have heard Mr. B.H. Marlapalle, learned Senior Counsel appearing for the petitioner and Ms. Prerna Singh, learned counsel appearing for the respondents and perused the averments made in the Special Leave Petition.

We are not inclined to interfere with the impugned order passed by the High Court.

During the course of hearing, it is brought to our notice that the charge-sheet has already been filed.

It will be open to the petitioner, to raise all such points, which are available to him under law, while applying for discharge by filing an application.

Dr. VRKS, J Crl.P.No.3327 of 2019

If such an application is filed, the same shall be decided by the concerned Court as expeditiously as possible.

The Special Leave Petition is disposed of accordingly.

Pending applications stand disposed of."

15. From the said order of their Lordships one would see that

their Lordships declined to interfere with the order impugned

before their Lordships. Thus, there was no reference to facts or

law indicating inclination of their Lordships to decide the matter

in one way or the other. In such circumstances, one cannot say

that such an order disentitles any proceeding to be taken up by

the High Court. In Indian Oil Corporation Ltd. v. State of

Bihar4, the law in this regard was explained by their Lordships

to the effect that disposal of a special leave petition by a non-

speaking order does not operate as a bar for the High Court to

consider a matter. Questions which can be said to have been

decided by the Hon'ble Supreme Court of India either expressly

or implicitly or even constructively while dismissing the special

leave petition cannot be reopened in any subsequent

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proceedings before the High Court. In that view of the matter,

the present criminal petition seeking to quash the cognizance

and summoning order can be said to be maintainable.

However, the fact remains that whether these argued facts and

circumstances are to be considered by this Court while

exercising jurisdiction under Section 482 Cr.P.C. or they shall

be left for consideration by the trial Court which took

cognizance of the matter. That aspect is made clear by their

Lordships themselves while dismissing the special leave

petition. Their Lordships have stated that it should be open to

the petitioner to raise all points available to him under law while

applying for discharge by filing an appropriate application and if

such an application is filed, the Court concerned should dispose

it of expeditiously. In the teeth of such order the petitioner is

right in not participating at the charge hearing before the trial

Court and instead coming to this Court asking its opinion on all

these controversial facts under Section 482 Cr.P.C.

16. While exercising powers under Section 482 Cr.P.C., the

Court does not function as a Court of appeal or revision.

1986 AIR 1780

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Inherent jurisdiction under the section though wide has to be

exercised sparingly, carefully and with caution and only when

such exercise is justified by the tests specifically laid down in

section itself. It is to be exercised ex debito justitiae to do real

and substantial justice for the administration of which alone

Courts exist. Authority of the Court exists for advancement of

justice and if any attempt is made to abuse that authority so as

to produce injustice, the Court has power to prevent abuse. It

would be an abuse of process of the Court to allow any action

which would result in injustice and prevent promotion of

justice. In exercise of the powers Court would be justified to

quash any proceeding if it finds that initiation/continuance of it

amounts to abuse of the process of Court or quashing of these

proceedings would otherwise serve the ends of justice. When no

offence is disclosed by the charge sheet, the Court may examine

the question of fact. When a charge sheet is sought to be

quashed, it is permissible to look into the materials to assess

whether any offence is made out if the allegations are accepted

in toto. In the case at hand, a reading of the charge sheet prima

facie discloses commission of cognizable offences. Whether

those allegations are true or false is a matter for trial Court to

Dr. VRKS, J Crl.P.No.3327 of 2019

decide. Whether the investigation was adequate or inadequate

is also a matter for consideration for the trial Court. Addition of

assets of others is a specific contention of petitioner and that

cannot be taken into consideration while exercising jurisdiction

under Section 482 Cr.P.C.

17. In R.P. Kapur v. State of Punjab 5, the Hon'ble Supreme

Court of India summarized some categories of cases where

inherent power can and should be exercised to quash the

proceedings. They are:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

In dealing with the last case, it is important to bear in

mind the distinction between a case where there is no legal

Dr. VRKS, J Crl.P.No.3327 of 2019

evidence or where there is evidence which is clearly inconsistent

with the accusations made, and a case where there is legal

evidence which, on appreciation, may or may not support the

accusations. When exercising jurisdiction under Section 482

Cr.P.C., the High Court would not ordinarily embark upon an

enquiry whether the evidence in question is reliable or not or

whether on a reasonable appreciation of it accusation would not

be sustained. That is the function of the trial Judge. Judicial

process should not be an instrument of oppression, or, needless

harassment. At the same time the section is not an instrument

handed over to an accused to short-circuit a prosecution and

bring about its sudden death.

18. The scope of exercise of power under Section 482 Cr.P.C.

and the categories of cases where the High Court may exercise

its power under it relating to cognizable offences to prevent

abuse of process of any Court or otherwise to secure the ends of

justice were set out in State of Haryana v. Bhajan Lal6. The

illustrative categories indicated are as follows:

AIR 1960 SC 866

1992 Supp (1) 335

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"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned

Dr. VRKS, J Crl.P.No.3327 of 2019

(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

19. The inherent power should not be exercised to stifle a

legitimate prosecution. It would not be proper for the High

Court to analyse the case of the complainant in the light of all

probabilities in order to determine whether a conviction would

be sustainable and on such premises arrive at a conclusion that

the proceedings are to be quashed. It is not necessary that

there should be meticulous analysis of the case by this Court

before the commencement of trial to find out whether the case

would end in conviction or acquittal.

20. In the considered opinion of this Court this petition is

misconceived and this Court is not inclined to exercise its

jurisdiction under Section 482 Cr.P.C. and it directs the