K.V.Brahmananda Reddy, ... vs The State Of Ap, Rep By Spl.Pp For ...
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     THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN

        CRIMINAL REVISION CASE No.2370 of 2016

JUDGMENT AND ORDER:


      Heard Mr.Vinod Kumar Deshpande, learned Senior

Counsel for Mr. Vikash Joshi, learned counsel for the

petitioner   and   Mr.K.Surender,   learned    Special   Public

Prosecutor (as his Lordship then was) for the respondent-

Central Bureau of Investigation (CBI).

2. This criminal revision case has been filed under Section

397 read with Section 401 of the Code of Criminal Procedure,

1973 (Cr.P.C) against the order dated 05.08.2016 passed by

the Principal Special Judge for CBI Cases, Hyderabad, in

Crl.M.P.No.1465 of 2014 in C.C.No.14 of 2012.

3. Petitioner is an officer belonging to the Indian Railways

Accounts Service (IRAS) of the 1984 batch. While working at

Eastern Railways, Kolkata, he was brought on deputation to

the Government of Andhra Pradesh and with effect from

16.11.2005 he was posted as Officer on Special Duty in the

Transport, Roads and Buildings Department, Government of

Andhra Pradesh. Subsequently, he was transferred to the

Infrastructure and Investment Department, Government of

Andhra Pradesh on 25.10.2019 in which capacity he worked

till 26.06.2009. On completion of his deputation period in

October 2009, he was reverted back to his parent cadre in

IRAS. At the time of filing the criminal revision case,

petitioner was working as Financial Adviser and Chief

Accounts Officer, Traffic, in the South Central Railways,

Secunderabad.

4. In connection with R.C 19 (A) of 2011, petitioner was

summoned by CBI, Hyderabad on 14.11.2011 to answer

certain queries. Petitioner attended the office of CBI not only

on 14.11.2011 but on subsequent dates as well. Finally he

was arrested by the CBI on 15.05.2012 and remained in

custody till he was enlarged on bail on 10.10.2013. It is

stated that petitioner was not named as an accused in the FIR

but was subsequently added as an accused.

5. On completion of investigation, CBI submitted final

report under Section 173 Cr.P.C in the Court of Principal

Special Judge for CBI Cases, Hyderabad ('CBI Court',

hereinafter) on 13.08.2012, which upon cognizance being

taken, was numbered as C.C.No.14 of 2012. Petitioner was

named as accused No.6 (A.6) and was charged under Section

120-B read with Sections 420, 409 and 477-A of the Indian

Penal Code, 1860 (IPC) and Section 13 (2) read with Section

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

(briefly, 'the PC Act', hereinafter).

6. Petitioner filed a petition in the CBI Court under Section

239 Cr.P.C for discharge. The same was registered as

Crl.M.P.No.1465 of 2014. However, no order was passed

thereon.

7. Petitioner filed Criminal Petition No.5777 of 2016 before

this Court for a direction to the CBI Court to take a decision

on his discharge petition. The same was disposed of vide the

order dated 21.04.2016 directing the CBI Court to dispose of

the discharge petition filed by the petitioner expeditiously,

preferably within a period of three months.

8. Thereafter, Crl.M.P.No.1465 of 2014 was heard and

decided by the CBI Court on 05.08.2016. By the said order,

CBI Court held that there is prima facie case against the

petitioner with reference to the allegations made against him

in the charge sheet and that the related case is not a case to

be quashed. The allegations made in the charge sheet

disclose a triable case. Therefore, the discharge petition was

dismissed.

8.1. Aggrieved, the present criminal revision case has been

filed.

9. Mr. Deshpande, learned senior counsel for the petitioner

submits that Government of Andhra Pradesh had accepted

the deputation of the petitioner as Officer on Special Duty,

subsequently designated as Special Secretary in the

Transport and Roads & Buildings Department. The role

assigned to the petitioner was to circulate files to the

Secretary/Principal Secretary of the Department on the

subjects of state ports and civil aviation matters.

Subsequently, petitioner was transferred along with the said

subjects to the Infrastructure and Investment Department,

Government of Andhra Pradesh. He submits that from the

orders of posting post deputation it is evident that petitioner

was assigned the duty to circulate files to the Secretary of the

Infrastructure and Investment Department and not to the

Chief Secretary or to the concerned Minister or Chief Minister

or the cabinet. No other role was assigned to him. He has also

referred to relevant provisions of the Andhra Pradesh

Government Business Rules and the Andhra Pradesh

Secretariat Office Manual.

9.1 For development of the backward areas of Prakasam

and Guntur districts and with the intention to create

employment opportunities, Government of Andhra Pradesh

thought of developing one port at Vadarevu in Prakasam

district and another at Nizampatnam in Guntur district along

with port based industrial corridor. In this connection,

Government of Andhra Pradesh and Government of Rus Al

Khaimah (RAK) entered into a memorandum of understanding

(MoU) on 11.03.2008 to develop the ports at Vadarevu and

Nizampatnam and the port based industrial corridor, known

as VANPIC project, on Government to Government basis in

public private partnership (PPP) mode. As per the MoU, RAK

was required to contribute not less than 51% of the project

cost as accrued by the Government of Andhra Pradesh.

9.2. In the above context, learned senior counsel for the

petitioner refutes the allegations made against the petitioner

and contends that petitioner either in his individual capacity

or in official capacity never corresponded with the other

accused persons more particularly accused No.3 regarding

the VANPIC project.

9.3. Pursuant to the policy decision of the Government of

Andhra Pradesh, it was decided to implement three projects

on Government to Government basis in Prakasam and

Guntur districts. Insofar award of the two ports and the

industrial corridor is concerned, the note file was initiated,

prepared and processed by the Section Officer and the

Assistant Secretary for orders of the Secretary, Infrastructure

and Investment Department i.e. accused No.7 to be placed

before the Chief Minister for his orders for placement before

the council of ministers. It was on that basis that the draft

cabinet memorandum was signed by accused No.7 and

approved by the Chief Secretary and by the concerned

Minister (A.4). The cabinet memorandum was signed by A.7

and circulated to the council of ministers.

9.4. Regarding project No.2 i.e. setting up of a shipyard at

Vadarevu in Prakasam district, the note file was initiated and

processed by the Section Officer and Assistant Secretary and

circulated to the Chief Minister for orders through the

Secretary of Infrastructure and Investment Department (A.7),

Secretary of Law and Finance Departments, Chief Secretary

and the departmental minister (A.4). Learned senior counsel

for the petitioner asserted that the file was not even shown to

the petitioner. Thus, the role played by the petitioner or

allegedly played by the petitioner was wholly insignificant. He

submits that all the decisions relating to award of the projects

were implemented under the authority and supervision of the

Secretary (A.7) being the competent authority. It is submitted

that petitioner had not deviated from any order of the

Government in the implementation of the projects. Thus he

contends that petitioner is in no way connected with the

offences alleged and no liability can be fastened on the

petitioner. He had only followed and implemented the orders

and directions as approved by the cabinet, Chief Minister,

departmental minister, Chief Secretary and the departmental

Secretary (A.7). Therefore, petitioner cannot be charged of

being a part of criminal conspiracy.

9.5. Mr. Deshpande submits that petitioner had only

followed the procedure laid down in the Andhra Pradesh

Government Business Rules and the Andhra Pradesh

Secretariat Office Manual. As a matter of fact, the circulation

note was processed when the petitioner was on leave. He

submits that petitioner's department could not be expected to

prepare a draft memorandum for submission to the council of

ministers beyond the tenor of the original note file which was

already obtained from the Chief Minister. Therefore, there

was no withholding of any information intentionally by the

petitioner while processing the memorandum to be placed

before the council of ministers.

9.6. Contending that there were no variations between the

draft concession agreement approved by the cabinet and the

agreement finally signed between the Government and the

concessionaire i.e., VANPIC Ports Private Limited, learned

senior counsel denies the allegations made against the

petitioner asserting the same to be false and contrary to the

record. Besides, on a word to word reading there is no

difference between the draft concession agreement approved

by the cabinet and the final concession agreement signed by

the petitioner, which he had to sign since it was approved by

the Chief Minister.

9.7. He further submits that the petitioner was not

authorized entitled to attend cabinet meetings; therefore he

did not attend the cabinet meeting held on 30.06.2008 which

was attended by the Secretary, Infrastructure and Investment

Department. As such, question of intentional withholding of

any information much less information on crucial aspects did

not arise. Moreover, no details have been spelt out in the

charge sheet as to what was intentionally withheld by the

petitioner.

9.8. Proceeding further, Mr. Deshpande submits that a

meeting was convened by the Chief Minister on 29.06.2008 to

discuss land acquisition for the VANPIC project. Minutes of

the said meeting were approved by the Chief Minister on

03.07.2008 whereafter those were circulated by the Secretary,

Infrastructure and Investment Department to all concerned

on 04.07.2008. In this meeting Chief Minister specifically

assigned roles to various authorities for the purpose of land

acquisition for the VANPIC project. But no role was assigned

to the petitioner.

9.9. Regarding allegations pertaining to allotment of land for

the VANPIC project, Mr. Deshpande submits that insofar

patta lands were concerned, all acquisitions and

consequential allotments were made under the Land

Acquisition Act, 1894; besides, there being a Land Acquisition

Committee consisting of 4 to 5 Principal Secretaries

nominated by the Chief Minister and the concerned District

Collectors. Government land assignments were carried out on

the recommendation of the District Collectors in the

Empowered Committee. Revenue Department issued land

allotment orders after cabinet approval. In the entire process

there was no role of the petitioner either in acquisition of land

or in fixing of price or the extent of land to be acquired for the

VANPIC project. In the circumstances, learned senior counsel

submits that there is no element of criminal conspiracy

involving the petitioner. If this be the position, no case under

Sections 120A and 120B IPC are made out against the

petitioner. All other charges being consequential, would

therefore pale into insignificance. He further submits that

there are no materials to substantiate the allegations of

cheating under Section 420 IPC and criminal breach of trust

by a public servant under Section 409 IPC. Besides, the

allegations made under Sections 13 (2) read with Section 13

(1) (c) and (d) of the PC Act are entirely bald since no

materials are on record to justify such a charge.

9.10. Mr. Deshpande submits that the CBI Court completely

overlooked the above aspects of the matter and mechanically

passed the order dated 05.08.2016. Therefore, the said order

cannot be sustained either in law or on facts. Petitioner is an

innocent person and a responsible public servant. On the

basis of such vague and bald allegations he should not be

compelled to undergo the ordeal of a long drawn criminal trial

where the outcome is quite obvious and a foregone

conclusion. That being the position, order dated 05.08.2016

of the CBI Court should be set aside and the petitioner should

be discharged from C.C.No.14 of 2012 pending on the file of

the CBI Court.

9.11. In support of his submissions, Mr. Deshpande has

submitted two volumes of case laws.

10. Mr. K. Surender, learned Special Public Prosecutor for

CBI (as his Lordship then was) submits that the order dated

05.08.2016 by the CBI Court is a reasoned one. Any further

reasons will jeopardize the case of the accused persons

including accused No.6 i.e., the petitioner. He submits that

no case has been made out by the petitioner for interference

by the High Court exercising revisional jurisdiction.

Petitioner cannot be exonerated at this stage on the basis of

his defence.

11. In his reply submissions Mr. Deshpande, learned

counsel for the petitioner submits that on the basis of

admitted facts petitioner cannot be said to be a part of any

criminal conspiracy, as there was no meeting of minds. As a

matter of fact, petitioner was subsequently added as an

accused (accused No.6). He has also placed reliance on the

MOU signed between RAK and Government of Andhra

Pradesh, more particularly to paragraph No.38 thereof, which

says that after obtaining approval of the council of ministers

the concession agreement will be signed between the

Government of Andhra Pradesh and VANPIC Ports Private

Limited as well as on the letter dated 08.12.2008 of the

Infrastructure and Investment Department, permitting

VANPIC Ship Yard Private Limited as special concessionaire to

develop the ship yard for both ship repair and ship building at

Vadarevu port as an integrated port cum ship yard project in

terms of clause 3.20 of the concessionaire agreement, further

earmarking 700 acres of additional land for development of

the ship yard project at Vadarevu out of the total lands being

acquired for Vadarevu project, clarifying that this was in

addition to 2000 acres meant for Vadarevu port development.

According to him mere processing of government files as was

done by the petitioner does not amount to any conspiracy, let

alone a criminal conspiracy. Moreover on the facts on record,

it cannot be said that there was a criminal conspiracy of

which petitioner was a part. Finally, he submits that the

allegations made against the petitioner are totally baseless

and on such baseless allegations it would be a travesty of

justice if the petitioner is compelled to face a prolonged

criminal trial. He therefore seeks setting aside of the order

dated 05.08.2016 and consequently discharge of the

petitioner from C.C.No.14 of 2012.

12. Submissions made by learned counsel for the parties

have received the due consideration of the Court. Also

perused and considered the case laws cited at the bar.

13. In the final report submitted by CBI before the CBI

Court in the form of charge sheet No.9 dated 13.08.2012

petitioner was arrayed as accused No.6 and put up to stand

trial. From a perusal of the charge sheet, it is seen that the

then High Court of Andhra Pradesh had passed order dated

10.08.2011 in W.P.Nos.794 of 2011 and 6604 of 2011

directing CBI to register a case and thereafter to conduct

thorough investigation into alleged financial misdeeds

involving huge amount of government largesse, corporate

dealings including investments as part of quid-pro-quo

arrangement for the largesse and the benefit obtained by the

investors from the State of Andhra Pradesh and also in other

respects. Following such order of the High Court, CBI

registered R.C.No.19 (A) of 2011 on 17.08.2011 under various

provisions of IPC and the PC Act. As per allegations made in

the F.I.R, father of accused Y.S.Jagan Mohan Reddy (A-1)

Y.S.Rajashekar Reddy was sworn in as Chief Minister of

Andhra Pradesh on 14.05.2004. A-1 and his father who was

holding high constitutional position had adopted several in-

genious methods to earn illegal wealth which resulted in loss

of public exchequer. It was alleged that Dr.Y.S.Rajashekara

Reddy during his stint as Chief Minister of Andhra Pradesh

from May 2004 to August 2009 abused his public office to

favour his son i.e., A-1. Modus operandi followed by the duo

was to lease out public properties, licenses, allowing/granting

various projects, SEZ, mining leases, ports, real estate

permission and other benefits to persons of their choices

violating established government norms and proceedings for

quid-pro-quo. The beneficiaries in turn had given bribes to A-1

under the guise of purchasing shares of M/s. Jagathi

Publications (A-11) and other companies floated by A-1 at

huge and un-substantiated premia.

14. The charge sheet thereafter summed up the entire

prosecution case in the following manner:

"Summary:

406. Late Dr. Y.S.Rajasekhara Reddy was the then Chief Minister of Andhra Pradesh from May, 2004 till his death on 02.09.2009. Sri Y.S.Jagan Mohan Reddy (A-1) is the son of Late Y.S.Rajasekhara Reddy and Sri V.Vijaya Sai Reddy (A-2) has been a long time financial advisor of their family and director of some of the companies floated by Sri Y.S.Jagan Mohan Reddy (A-1) including M/s. Jagati Publications Pvt. Ltd. (A-11).

407. During the year 2008, Government of Andhra Pradesh proposed to develop two sea ports at Vadarevu and Nizampatnam and port based industrial corridor in Prakasam and Guntur Districts and named it as Vadarevu and Nizapatnam Ports and port based Industrial Corridor, in short called VANPIC Project and awarded the same for development to Government of Ras Al Khaima (RAK) on Government to Government (G2G) basis avoiding open competitive bidding process. The estimated project cost was Rs.17,000 Crore. The principal terms and conditions include that Government of RAK shall contribute not less than 51% of the approved project cost and it shall hold 51% of the equity in the special purpose vehicle (SPV) to be formed for implementation of VANPIC Project.

408. M/s. Matrix Enport Holdings Pvt. Ltd., promoted by Sri Nimmagadda Prasad (A-3) and his younger brother Sri Nimmagadda Prakash (A-9) entered into VANPIC Project as an Indian partner with 49% of the equity in the proposed special purpose vehicle (SPV) M/s'Vanpic Ports Pvt. Ltd.'

409. On 29.06.2008 the then Chief Minister Dr. Y.S.Rajasekhara Reddy in a special meeting convened decided to allot 24000 acres of lands

for the development of Industrial Corridor of VANPIC Project.

410. On the basis of a Cabinet Memorandum placed by Infrastructure & Investment Department (I&I), the Andhra Pradesh State Council of Ministers has approved awarding of entire VANPIC Project on Build Own Operate and Transfer (BOOT) basis to the SPC M/s. Vanpic Ports Pvt. Ltd. and to allot 4,000 acres of land, 2000 acres each, for both the ports on lease basis. The Cabinet also accorded approval for the draft Confession Agreement. Sri Mopidevi Venkata Ramana Rao (A-4) and Dr. Manmohan Singh, IAS (A-7) were the Minister and Secretary of I&I Department respectively at the relevant period. Sri K.V.Brahmananda Reddy, IRAS (A-6) the then Special Secretary of I&I Department and Sri Nimmagadda Prasad (A-3) signed the Concession Agreement on 11.07.2008.

411. After the demise of Dr. Y.S.Rajasekhara Reddy in September, 2009, Government of Andhra Pradesh observed that the Concession Agreement signed on 11.07.2008 contained many serious deviations from the Cabinet approval and the spirit of Memorandum of Understanding (MOU) dated 11.03.2008 entered into between Govt. of Andhra Pradesh (GoAP) and Govt. of Ras A1-Khaima (RAK). The said deviations are discernibly blatant, and cannot be construed as inadvertent and are detrimental to the interest of Government of Andhra Pradesh.

412. These deviations include provision for dilution of RAK's share in the SPV from 51% to 26% without knowledge/approval of Government of Andhra Pradesh against the spirit of the concept of Govt. to Govt. (G2G) contract. This provision facilitated clandestine entry of a private company viz., M/s. Navayuga Engineering Company Ltd. into VANPIC Project

with 65% equity in the SPV, keeping Government of Andhra Pradesh in total oblivion as to dilution of the equity of RAK and induction of an alien party taking reigns of SPV.

413. The other major deviation is the applicability of BOOT concept only to the two ports (4,000 acres) but not to the industrial corridor of VANPIC Project comprising of 24000 acres, whereby the transfer of industrial corridor assets on completion of the concession period to the government is not incorporated. This resulted in divesting the Govt. of Andhra Pradesh of its legitimate claim on revenue share and rights over the industrial corridor assets on such completion of concession period.

414. On 08.08.2008, Sri K.V.Brahmananda Reddy (A-6) directed the District Collectors of Prakasam and Guntur Districts to send land alienation proposals for industrial corridor in favour of M/s. Vanpic Projects Pvt. Ltd. (A-10), a private company controlled by Sri Nimmagadda Prasad (A-3) deceptively using the same acronym (VANPIC) instead of M/s. Vanpic Ports Pvt. Ltd., the Cabinet approved SPV.

415. The Empowered Committee headed by the Chief Commissioner of Land Administration (CCLA) considered the proposals and recommended for alienation of lands in favour of M/s. Vanpic Ports Pvt. Ltd. Sri M. Samuel (A-8), the then Principal Secretary, Revenue Department, a member in the Empowered Committee and Sri Dharmana Prasad Rao (A-5), the then Minister of Revenue Department approved and placed the proposals before the Council of Ministers for alienation of lands in favour of M/s. 'Vanpic Projects Pvt. Ltd'. (A-10) against the specific recommendation of the Empowered Committee to alienate land to M/s. 'Vanpic Ports Pvt. Ltd.', the SPV. Basing on

cabinet approvals on the proposals of Revenue Department, Government Orders (G.O.s) were issued alienating lands in favour of M/s. 'Vanpic Projects Pvt. Ltd' (A-10). Sri Nimmagadda Prasad (A-3) and his associates directly made the payments to the landowners basing on the G.O's issued by Sri M. Samuel, IAS (A-8) and such payments do not have the approval of the Cabinet.

416. The Council of Ministers and the then Chief Secretary of the Government of Andhra Pradesh were unaware of the facts as to that an extent of 24000 acres of land was sought for the industrial corridor and that the same was being alienated to M/s. 'Vanpic Projects Pvt. Ltd.' (A-

10) instead of M/s. Vanpic Ports Pvt. Ltd.', the SPV as part of VANPIC Project for the purpose of development.

417. The fact remains that M/s. Vanpic Projects Pvt. Ltd. is an alien company controlled by Sri Nimmagadda Prasad (A-3) and that there was no privity of contract between Govt. of Andhra Pradesh and M/s Vanpic Projects Pvt. Ltd. for the purpose of enforcing the rights of the government on the project.

418. The Govt. of AP at the instance of the then Chief Minister, Dr. Y.S.Rajasekhara Reddy, has awarded several projects viz. shipyard at Vadarevu, Regional Airport at Ongole and the appurtenant concessions to the companies controlled by Sri Nimmagadda Prasad (A-3) and his associates without floating/inviting tenders in the guise of G2G agreements.

419. Sri Nimmagadda Prasad (A-3) in furtherance of criminal conspiracy in the guise of investments paid illegal gratification of Rs.854.50 crores to Sri Y.S.Jagan Mohan Reddy (A-1) and his group companies.

420. As a quid-pro-quo to the investments made by Sri Nimmagadda Prasad (A-3) into the companies of Sri Y.S.Jagan Mohan Reddy (A-1) and his group companies, Sri Y.S.Rajasekhara Reddy, the then Chief Minister of Andhra Pradesh under the influence of Sri Y.S.Jagan Mohan Reddy (A-1) extended many undue favours such as exemptions from land ceiling Act and benefits in zoning regulations besides awarding infrastructure projects viz. VANPIC Shipyard and Airport.

15. Thereafter the role of various accused persons were

analysed. The charge sheet explained the role of petitioner (A-

6) in the following manner:

"Sri K.V. Brahmananda Reddy (A-6) in furtherance of criminal conspiracy with the other accused persons, processed the files of VANPIC Project, interacted and made correspondence with Sri Nimmagadda Prasad (A-3) and his representatives regarding the VANPIC Project, Shipyard at vadarevu and Airport project at Ongole and was in the knowledge of all the intricacies relating to these projects.

Sri K.V.Brahmananda Reddy (A-6) in furtherance of criminal conspiracy, intentionally withheld many crucial aspects from the Council of Ministers while processing the Memorandum to be placed before the Council of Ministers.

Sri K.V.Brahmananda Reddy (A-6) was very much in the knowledge of the requirement of about 28,000 acres of land mentioned in the Initial master Plan submitted by Sri Nimmagadda Prasad (A-3). He however, intentionally did not include this aspect in the Cabinet Memorandum placed before the Council of Ministers on 30.06.2008.

Sri K.V.Brahmananda Reddy (A-6), in furtherance of criminal conspiracy, intentionally did not incorporate the suggestions of Law and Finance Departments in the Cabinet Memorandum, as required under Government Business Rules.

Sri K.V.Brahmananda Reddy (A-6) intentionally and in furtherance of conspiracy processed two different versions of the same proposals which were placed before the Council of Ministers viz., one contained in the Cabinet Memorandum and the other in draft Concession Agreement which were mutually contradictory in several vital issues detrimental to the interest of Government of Andhra Pradesh.

Sri K.V.Brahmananda Reddy (A-6) in furtherance of criminal conspiracy, after acceptance of draft Concession Agreement by the Council of Ministers under deception, processed issue of G.O.s setting the contents of the Concession Agreement into force, the Government was under obligation to extend all the benefits mentioned therein under the Concession Agreement as the contents of agreements are binding against the Government.

Having accepted the Concession Agreement, the Government was exposed to undue financial liability resulting in loss to the Government exchequer towards payment of excess sale consideration/compensation to the land loosers by the concessionaire in the form of 'goodwill'. The excess amount to be paid by the concessionaire towards 'goodwill' would be deducted from the lease rentals accruable and payable to the Government. In these transactions, the Government was also subjected to financial loss due to exemptions extended towards registration charges and other levies.

Sri K.V.Brahmananda Reddy (A-6), in furtherance of criminal conspiracy, after getting the Cabinet assent under deception, processed the issuance of

G.O.Ms.No.30, I & I Department dated 10.07.2008. The said G.O contains several provisions not reflected in the Cabinet Memorandum and the resultant approval of the Cabinet. The proposal approved by the Cabinet does not include acquisition of land for industrial corridor and there is no proviso directing the Government to facilitate such acquisition. Whereas this clause has been fraudulently incorporated in G.O.Ms.No.30 I & I Department dated 10.07.2008 resulted in casting responsibility on the Government to pave way for acquisition of lands for industrial corridor.

Sri K.V.Brahmananda Reddy (A-6) was also present in the special meeting convened by the then Chief Minister, Dr.Y.S.Rajashara Reddy on 29.06.2008 for acquisition of land for VANPIC Project and the decision taken to allot about 28,000 acres of land for VANPIC Project. He, however, interntionally did not include the quantum of land proposed and agreed for industrial corridor in G.O.Ms.No.30 dated 10.07.2008. Sri K.V.Brahmananda Reddy (A-6), before signing the Concession Agreement, did not ensure as to the provisions of Concession Agreement are to be in consonance with the Cabinet Approval dated 30.06.2008 and also the G.O. issued there on.

Sri K.V.Brahmananda Reddy (A-6), in furtherance of criminal conspiracy, processed issuance of G.O.Ms.No.31 dated 11.07.2008 initiating steps for acquisition of 5,404.44 acres of patta lands in Prakasam and Guntur Districts in violation of the extent of land approved by the Cabinet.

Sri K.V.Brahmananda Reddy (A-6), in furtherance of Criminal Conspiracy failed to ensure that the interest of the Government is to be protected. The provisions of Concession Agreement dated 11.07.2008. The following are the provisions against the interest of the Government:

(a) In the extension clause of concession period beyond 33 years, the phrase -"mutual consent" was found missing;

(b) Instead of incorporating the clause as to dilution of equity after 5 years from the "Commercial Operation Date" it was mentioned as "Date of Commencement"

(Agreement Date);

(c) The concessionaire shall not be liable to pay concession fee to Govt. of Andhra Pradesh in respect of any year where the concessionaire does not have the "Net Profit" instead of "Gross Profit";

(d) Absolute ownership on industrial corridor lands to the developer against the spirit of BOOT;

(e) The provision for dilution of RAK's equity from 51% to 26% facilitated back-door entry of Navayuga Engineering Co. Ltd., into a Project awarded on G2G basis;

(f) A provision that even in the case of default by the developer, the industrial corridor lands are permitted to be retained by the developer against the spirit of BOOT.

Sri K.V.Brahmananda Reddy (A-6) did not comply with advices of Law and Finance Department for obtaining the detailed schedules of lands required for ports, industrial corridor before signing the Concession Agreement.

Sri K.V.Brahmananda Reddy (A-6), in furtherance of criminal conspiracy did not ensure inclusion of names of other VANPIC SPVs either in the Cabinet Memorandum or in the G.O.Ms. Nos.30 dated 10.07.2008.

Sri K.V.Brahmananda Reddy (A-6), in furtherance of criminal conspiracy did not properly utilize the services of Retainer Consultant which was available, while dealing with many complex provisions of the Concession Agreement and formation of SPVs.

Sri K.V.Brahmananda Reddy (A-6) in furtherance of criminal conspiracy has directed the District Collectors of Prakasam and Guntur to submit land alienation proposals in favour of an alien company viz., M/s. 'Vanpic Projects Pvt.Ltd'. (A-10) vide his Memo dated 08.08.2008 instead of M/s "Vanpic Ports Pvt.Ltd', the SPV approved by the council of Ministers. This was done by him suo-motu basing on a letter addressed to the Collectors by the developer. He acted on his own without obtaining formal permission from the competent authority.

Sri K.V.Brahmananda Reddy (A-6), was well aware of the fact that M/s. 'Vanpic Projects Pvt. Ltd.' (A-10) was the new name of 'Matrix Enport Holdings Pvt. Ltd.', the declared Indian partner in the SPV i.e., M/s. 'Vanpic Ports Pvt. Ltd.' Thus he had knowledge as to the fact that M/s. Vanpic Projects Pvt. Ltd.' (A-10) is a private limited company promoted by Sri Nimmagadda Prasad (A-3) and his brother Sri Nimmagadda Prakash (A-9), but dishonestly facilitated alienation of lands to the said company.

Sri K.V.Brahmananda Reddy (A-6), was in knowledge of the requirement of about 27,000 acres of land as per the Initial Master Plan submitted by the developer. However, he intentionally did not ensure inclusion of this huge extent of land in the draft Cabinet Memorandum.

Sri K.V.Brahmananda Reddy (A-6), was present in the CM's meeting held on 29.06.2008, wherein it was agreed to provide 28,000 acres of land to VANPIC Project. However, he did not make any efforts to put forth this fact before the Cabinet for approval.

Sri K.V.Brahmananda Reddy (A-6), did not ensure proper assessment of huge extent of land requested by the developer.

Sri K.V.Brahmananda Reddy (A-6), wantonly facilitated the land acquisition for Industrial Corridor vide G.O.Ms.No.30 dated 10.07.2008. This fact was not specifically mentioned in the Cabinet Memorandum.

By signing the concession agreement representing Government of Andhra Pradesh without assessing the implication of the contents, Sri K.V.Brahmananda Reddy (A-6) has facilitated Sri Mammagadda Prasad (A-3) to have a pervasive control of the entire VANPIC Project and also divested the Government of Andhra Pradesh of its legitimate rights over the Government lands of the project facilitating Sri Nammagadda Prasad (A-3) to alienate the same against to the Government and consequential revenue loss.

By the above mentioned acts and omissions Sri K.V.Brahmananda Reddy (A-6) had committed offences punishable u/s. 120B, 420, 409 IPC and u/s 13 (2) r/w 13 (1) ( c ) and (d) of the PC Act 1988."

16. Thus, as per the charge sheet, petitioner along with 13

other accused persons had committed the offences of

criminal conspiracy, criminal breach of trust by public

servant and agent, cheating by impersonation, cheating,

forging of valuable security, forgery for the purpose of

cheating, using of forged documents as genuine, falsification

of accounts, taking gratification for exercise of personal

influence with public servants to show favour or dis-favour to

any person, public servant obtaining valuable thing, without

consideration from person concerned in proceeding or

business transacted by such public servant; abetting a public

servant to obtain valuable thing for himself or for any other

person, any valuable thing or pecuniary advantage by a

public servant resorting to dishonestly allowing other person

to mis-appropriate or confer for his own use; thus punishable

under Sections 120B, 409, 419, 420, 468, 471 and 477A IPC

and under Sections 9, 11, 12, 13 (2) read with Section 13(1)

(c) and (d) of the PC Act.

17. Petitioner filed a petition before the CBI Court under

Section 239 Cr.P.C seeking his discharge from C.C.No.14 of

2012. The same was registered as Crl.M.P.No.1465 of 2014.

By order dated 05.08.2016, CBI Court dismissed the

discharge petition. It has been held as follows:

"42. It has to be noted that the complaint as well as the allegations of the prosecution, involved a serious public fraud attracting serious economic offence in which, the role of the petitioner as one of the alleged conspirators facilitating distribution of largesse in favour of certain private individuals, in the camouflage of G2G transactions. Therefore, gravity of these alleged instances bears significance. In essence, facilitating a complete pervasive control over

vast extent of land amounting to 18,878.02 acres in the name of M/s. VANPIC Project Pvt. Ltd., (A-10) under the garb of concession agreement dt.

11.07.2008 entered into between the Government of AP represented by the petitioner himself and SPV viz. VANPIC Ports Pvt. Ltd., represented by A-3 bears any amount of importance in this context. Laudable object of Government of AP in developing Vadarevu and Nizampatnam Ports, in backward and underdeveloped regions in the then composite State of Andhra Pradesh, extending between Guntur and Prakasam Districts, was sought to be taken for granted, according to allegations of the prosecution, in the alleged manipulation, to gain personally by few individuals. The same according to prosecution, was accentuated by the alleged role attributed to A-1 as the son of then Chief Minister late Dr. Y.S.Rajasekhara Reddy, alleging that his office was made use of for this purpose, including Government of AP.

43. As rightly contended for respondent/CBI, the acts so pointed out by it against the petitioner in processing the files in Government cannot be disputed. The petitioner himself is relying on, his role in processing the files relating to M/s. VANPIC Project Pvt. Ltd., as part of discharge of his duties as public servant.

44. As per memorandum of understanding, signed between Government of RAK and Government of Andhra Pradesh, dt. 11.03.2008, an integrated Vadarevu sea port in Prakasam District and Nizampatnam sea port in Guntur District as well as port based industrial corridor was to be developed. It was given an acronym "VANPIC Project". It was to be developed on BOOT basis. Contents of this MOU were demonstrably clear and explicit in this respect. I & I Department of Government of AP was nominated as nodal agency to facilitate implementation of this project. Thus, it was a G2G project.

45. After due processing of file and enormous correspondence between I & I Department represented by the petitioner as Special Secretary and Indian partner of RAK viz. M/s. Matrix Enport Holdings Pvt. Ltd., through Sri K.Upender Rao, the matter had come to such a stage that a concession agreement was to be entered into. For this purpose, a note was prepared for circulation on 24.06.2008 and it was circulated at various levels. It was signed by A-7 as Secretary of this Department on 24.06.2008 as well as then Chief Secretary of Government of AP on the same day and whereas it was signed by A-4 as the concerned Minister on 25.06.2008. The then chief Minister late Dr. Y.S.Rajasekhara Reddy also signed this note on 25.06.2008, as against which signature, there is also initial of Special Secretary, I & I Department on 25.06.2008. Thus, it is explicit that on 25.06.2008 the petitioner as Special Secretary of this department had seen this note and apparently thereafter then Chief Minister --- late YS. Rajasekhara Reddy signed in this note. Thus, it signifies that this note was approved at different levels up to the Chief Minister.

46. Thereafter a Cabinet Memorandum was prepared with necessary check-list by A-7 as the Secretary to the Government and obviously, it was approved by A-4. This Cabinet Memorandum is based on the note for circulation referred to supra. On 30.06.2008, it was considered in agenda item No.18 in the Cabinet meeting (Meeting of the Council of Ministers) as a proposal for award of this project and approval of the draft concession agreement. Council resolution No.231/2008 thereon recorded that this item was approved. There is also reference in this resolution that second time exemption of Stamp Duty and Registration Fee from original SPV - M/s. VANPIC Ports Pvt. Ltd., to other SPVs to be formed for different components of VANPIC Project would be subject to condition that the SPVs and their activities are related to Cargo to be handled by the proposed ports.

47. Pursuant to such approval of draft concession agreement, on 11.07.2008, as already stated, concession agreement was entered into, signed by the petitioner as Special Secretary to Government, being authorized and A-3 - Sri Nimmagadda Prasad, on behalf of VANPIC Ports Pvt. Ltd. Significantly, this concession agreement bears title as follows:

"Concession agreement for the development of Vadarevu Port and Nizampatnam Port Project on Build, Own, Operate and Transfer (BOOT) basis".

It contains various clauses apart from definitions as well as covenants. Clause 3.3 describes the concession period, which shall be for 33 years in the first instance and later to be extended for further period of 22 years in two spells of 11 years each. Such facility was granted for the reasons stated in this agreement itself and the circumstances that prevailed, slightly deviating from such period granted to other ports like Gangavaram and Krishnapatnam earlier. It is further to be noted that port is defined in clause 1.44, being multi-purpose ports to be independently developed at Vadarevu and Nizampatnam in the State of AP. Clause 1.47 defines project as limited to areas inside defined port boundaries and other infrastructure facilities, relating to it and its associated infrastructure facilities for the development of these ports. Clause 2.2 relating to interpretation provides for consulting MOU dt. 11.03.2008 as well as initial master plan and project feasibility report prepared by concessionaire in case of ambiguity in understanding any aspect of the project not covered by the provisions of this agreement.

48. The title and the above clause of interpretation when considered with the terms in MOU prima-facie indicate that this entire project was a BOOT project.

49. However, in clauses 10 and 11 which are default clauses applicable to concessionaire and Government of AP as well as compensation, it is stated as a clarification that nothing in this provision shall affect transfer and vesting of the land as per State Support and the same shall be absolute and transfer of assets mentioned in this agreement and the same shall apply only in respect of the concerned port where such default has arisen. These clarifications, prima-facie indicate that transfer of assets including such associated infrastructure facilities for development of both these ports shall alone be subject matter vesting in the State Government referred in schedule 'D' of this agreement.

50. Schedule-A of this agreement relating to State Support, provides in clause 1.2 that the lands made available shall absolutely vested in SPVs for development of implementation of VANPIC Project as the concessionaire/developer may specify in his discretion. It is desirable to extract this clause for facility hereunder:

"1.2. Developer may on its own or together with strategic partners or other persons develop an industrial corridor consisting of port based or other industries/ industrial parks and power plants as part of the Industrial Corridor in order to develop the immediate hinterland for the Vadarevu and Nizampatnam ports. To assist in timely completion thereof, GoAP shall extend its support to make available land as requested by the Developer on outright purchase basis and transfer shall take place at the First Market Value as determined either by the District Collector, Guntur or the District Collector Prakasam as the case may be. The cost towards the transfer of the lands shall be borne by the Developer or its Affiliates, associates, subsidiaries or nominees. The lands to be acquired for this

purpose are more particularly described in Schedule (E). All such lands shall absolutely vest in the special purpose vehicles for the development implementation of the VANPIC Project as the Concessionaire/Developer may specify in its discretion without any restriction on usage or on dealing with such lands."

(Emphasis supplied).

51. This concession agreement in clause 3.1. refers to grant of concession, with reference to these two ports and provision of 2,000 acres of land for each of these ports described in Schedule-D of this agreement on BOOT basis. Whereas the above extracted clause of Schedule - A relating to State Support refers to Schedule - E, which in turn, is concerned to VANPIC Project (Industrial Corridor) lands. This industrial corridor land is the bone of contention in this case in respect of either its absolute ownership to vest with a SPV said to have been floated, as VANPIC Project Pvt. Ltd., which according to the prosecution is a Metamorphosed entity of M/s. Matrix Enport Holdings Pvt. Ltd., or that it has to be developed on BOOT basis, as is contemplated in respect of these two ports.

52. The contention of the prosecution is that development of industrial corridor on BOOT basis, was as part of this port project on BOOT basis was apparently suppressed by the petitioner when the file was circulated and as a part of Cabinet memorandum without bringing to the notice of the Cabinet. It has to be taken into consideration at this stage.

53. The fact that there was a meeting on 29.06.2008 held by then Chief Minister late Dr. Y.S.Rajasekhara Reddy in respect of industrial corridor lands i.e., a day before proposed Cabinet meeting is also a circumstance to be taken into consideration in this context, in which the petitioner participated. Issuance of G.O.Ms.No.30, dt. 10.07.2008 and G.O.Ms.No.31, dt. 11.07.2008 referring to acquisition of lands for

industrial corridor by the concessionaire/developer to be facilitated by the Government were not specifically stated in the Cabinet Memorandum or the proceeding note that was circulated. It is curious to note that the total extent land required for the purpose of industrial corridor as a part of this project is not stated in Schedule-E nor any of these records indicate the same and if it was to be owned absolutely by concessionaire. Statement of then Chief Secretary Sri P. Ramakantha Reddy under Section 161 Cr.P.C refers that there is difference between proposals sent by CCLA, recommending land allotment to VANPIC Port Pvt. Ltd., - approved SPV, by Government and proposals sent to Cabinet by Revenue Department State VANPIC Projects Pvt. Ltd., as found in G.O. Ms.No.1110, dt. 15.09.2008 and G.O. Ms.No.1115, dt. 16.09.2008. These G.Os were issued apparently at the instance of I&I Department of Government of A.P., for industrial corridor.

54. These are the serious circumstances which are required to be clarified and for such purpose, necessarily the evidence has to be let-in in the course of trial. Attempted explanation of the petitioner in this context, cannot hold sway particularly when the material is being considered as has been produced by the prosecution alone in a summary enquiry. There are noticeable differences and variations in the contents of note file, Cabinet memorandum and draft concession agreement. If the contents of draft concession agreement had been brought to the specific notice of Cabinet on 30.06.2008 in the meeting, it would have given a right indication. These factors prima-facie indicate a veil of secrecy, around these happenings on records.

55. From the material on record, discussed supra and on a prima-facie consideration, it has to be stated that there are circumstances, placed by prosecution from its material, if remained unrebutted do lead to a conclusion attributing criminality to the petitioner, in respect of the offences alleged against him.

56. The contention of the petitioner that he was discharging his duties in processing this file being bound by the orders of the superiors viz. Secretary and the Government and acted in furtherance of the Cabinet decision, in the circumstances as are available on record at this stage, is difficult to accept. He should necessarily stand to trial in respect of these offences. It cannot be stated that there are no specific allegations or that there is no material brought out by the prosecution against him to attract any of these offences prima-facie. Several larger questions are left open in relation to these actions of the petitioner, when considered in the context of the allegations made by the prosecution as a whole in support of its case against all the accused and the material placed by it.

57. Some other omissions pointed out by the prosecution against the petitioner even if treated as minor, the above circumstances that had lead to execution of concession agreement, in such manner described above, did indicate that there is necessity of explanation from the petitioner with reference to his role in this context, by means of clear evidence at a full dressed trial.

58. It cannot be stated that such alleged omissions or alleged lapses may attract departmental action against the petitioner and not a criminal prosecution. Reliance placed on behalf of the petitioner in this context in C.Chenga Reddy and others Vs. State of Andhra Pradesh [1996 Supp. (3) SCR 479] where it was observed that the breach of codal provisions or violation of the circulars and instructions and commission of administrative irregularities cannot be said to have been done by the officials concerned with any corrupt or dishonest intention, cannot be made applicable.

59. Further contention that neither criminal breach of trust is attracted nor ingredients of Section 415 IPC to

prove cheating against the petitioner are attracted, cannot be considered at this stage. Reliance placed on behalf of the petitioner in this context in Sharon Michael & others Vs. State of Tamil Nadu & another [AIR 2008 SC 688 = (2009) 3 SCC 375] wherein the given facts and circumstances of the case, their Lordships observed that it was a case of civil profile and did not attract penal provisions cannot be applied to the facts and circumstances of this case. Similarly reliance placed in SVL Murthy Vs. State rep. By CBI, Hyderabad [AIR 2009 SC 2717] in the same context cannot be applied at this stage. Their Lordships in this ruling observed with reference to what constitutes an offence of cheating, thus:

"For the purpose of constituting an offence of cheating, the complainant is required to show that the accused has fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Indian Penal code can be said to have been made out."

60. Reliance is also placed for the petitioner in KR Purushothaman Vs. State of Kerala [AIR 2008 SC 35 = (2005) 12 SCC 361] contending that criminal misconduct defines under section 13 of PC Act cannot be applied to the petitioner and conspiracy, to attract Section 120-B IPC cannot be deduced against the petitioner.

61. It is pertinent to refer the observations in this ruling as to what constitutes conspiracy and they are as under:

"To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that

all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to kept in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible.

The criminal conspiracy is an independent offence in Indian Penal code. The unlawful agreement is sine qua non for constituting offence under Indian Penal code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement".

62. It has to be borne in mind that criminal intention has to be deduced on the set of facts proved in a regular course of trial against the accused and cannot be deduced in a summary enquiry basing on the contentions of the parties. When all the offences attributed to the petitioner do require proof of such

intention, necessarily trial should go on against the petitioner.

63. Reliance is also placed for the petitioner in AP Dalit Mahasabha Vs. Government of AP [1992 (2) ALD 275 - AP High Court] with reference to power of Government to disburse its properties and its policies thereon. In para Nos.48 and 49 of this ruling, in this context, it was observed :

"48. On a consideration of the cases cited at the bar, the following principles may be taken as well established. The formulation and implementation of any economic policy is the responsibility of the executive. The merits of such policy are not susceptible to judicial review by this Court, except on the ground of constitutional infirmities. The Courts are not placed, wherein to determine as to whether an alternative policy formulation would have been better. The formulation and implementation policy regarding utilization of natural resources may depend upon variety of factors.

Essentially it is politico-economic Judgment.

49. In my considered opinion a large latitude would have to be allowed to the executive to decide for itself as to what would be the reasonable decision and the economic soundness of the proposed development plan undertaken by the State. It cannot be a subject matter of debate in a judicial review proceedings as long as such plan is not contra constitutional. The Courts will be reluctant and perhaps ill equipped to investigate into merits of such complex policy formulations. In deciding the policies the executive is entitled to take legitimate political and economic considerations into account. The executive is frilly entitled while making such decision to take into account such consideration, such as promotion of regional stability, good Government, and its commercial interest. A

particular decision taken by the executive may be right or wrong. The wisdom behind such decision cannot be judicially reviewed".

64. It is pertinent to note the observations in paras 20 and 21 in this ruling which are:

"20. ...It is equally well settled that even a Governmental property may be disposed of at a price lesser that the market price or even for a token price to achieve some defined constitutionally recognized public purpose, one such being to achieve the goals set up in Part IV of the Constitution or the property is not given with a view to earn revenue or the purpose of carrying out a welfare scheme or to achieve any constitutionally permissible objective. There may be infinite variety of considerations which may have to be taken into account by the State in formulating its policy.

21. The Supreme Court in Sri Sachidanand Pandy and another v. State of West Bengal, AIR 1987 SC 1109, after referring to all the decisions on the subject deduced the following proposition to be taken as well established:

".....State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of

discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism."

65. When evidence has to be let-in in a regular course of trial in relation to several acts complained of, which the prosecution has clearly attributed that these acts are criminally tainted, these contentions have to be considered after evidence has been let-in by the prosecution and material placed by the accused to rebut such evidence, if necessary.

66. Further contentions advanced on behalf of the petitioner that neither the successor Government nor any one complained against any of the accused as sought to be projected by CBI in this case, is not a factor worth consideration. In case of public injury, when criminal acts are attributed, the State investigating agency should necessarily step in and more so, when it is alleged that largesse extended by then Government through its functionaries was not all well.

67. Reliance is also placed for the petitioner in Sujit Biswas Vs. State of Assam [AIR 2013 SC 3817] contending that mere suspicion however grave may be, cannot take the place of proof. In para No.6 of this ruling, their Lordships observed in this context, as under:

"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be proved' and something that 'will be proved'.

In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take

the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide:

Hanumant Govind Nargundkar & Ant. V. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)".

68. It is not mere suspicion that looms large on conspectus consideration of material in this case. It is at a higher degree, amounting to grave suspicion making out prima-facie material against the petitioner as to the offences alleged.

69. State of Maharashtra through CBI Vs. Mahesh G. Jain [(2013) 8 SCC 119] and Sanjaysinh Ramrao Chavan Vs. Dattatraya Gulabrao Phalke and others [2015 (3) SCC 123] referred to sanction to be accorded under Section 19 of PC Act and if the facts in the given case support. Though these two citations are not referred in the

course of arguments on behalf of the petitioner, they are part of material produced by him in this petition. The stage is too early to decide as to competence of the sanction order issued to prosecute the accused for the offence under Section 13 (2) r/w. 13 (1) ( c ) & (d) of PC Act. Basing on this sanction order cognizance was taken in this case also for the above offences under PC Act, by this Court on 24.01.2013.

70. Therefore, on a careful consideration of the material available at this stage, having regard to the contentions advanced on behalf of the petitioner, as well as the respondent/CBI, inference possible is that there is prima-facie case against the petitioner with reference to allegations made against him. It has to be held further that charges for offences under Section 120-B IPC, under Section 409 IPC, under Section 420 IPC and under Section 13 (2) r/w. 13 (1)

(c) & (d) of PC Act have to be framed against the petitioner. Consequently this petition for discharge has to be dismissed.

71. In the result, this petition is dismissed.

18. Thus on scrutiny of the materials on record, CBI Court

came to the conclusion that the allegations brought against

the petitioner were not mere suspicion; it is at a much higher

degree amounting to grave suspicion. Prima facie the

materials against the petitioner were not adequate to suspend

a criminal trail. That apart, the stage was too early to decide

competence of the sanction order issued to prosecute the

petitioner and therefore, prima facie case is made out against

the petitioner. Therefore, the petition for discharge was

dismissed.

19. Allegations against the petitioner have been noted.

Petitioner had filed a petition under Section 239 of Cr.P.C for

discharge which was dismissed by the CBI Court in the

manner extracted above. Section 239 Cr.P.C finds place in

Chapter XIX A which deals with trial of warrant cases by

Magistrates; cases instituted on a police report. Section 239

Cr.P.C says that if upon considering the police report and the

documents sent with it under Section 173 and making such

examination, if any, of the accused as the Magistrate thinks

necessary after giving the prosecution and the accused an

opportunity of being heard, the Magistrate considers the

charge against the accused to be groundless, he shall

discharge the accused and record his reasons for doing so.

Therefore, when the charge sheet is submitted the trial

Magistrate upon considering the same and the related

materials and after giving an opportunity of being heard to

the prosecution as well as to the defence, may discharge the

accused by holding that the charge against the accused is

groundless. However, he has to record his reasons for doing

so.

20. It is trite that Section 239 has to be read with Section

240 Cr.P.C. Section 240 deals with framing of charge. As per

sub-section (1) of 240 Cr.P.C, if upon consideration,

examination, if any, and hearing, the Magistrate is of opinion

that there is ground for presuming that the accused has

committed an offence triable under Chapter XIX, which such

Magistrate is competent to try and which, in his opinion,

could be adequately punished by him, he shall frame in

writing a charge against the accused. Requirement of sub-

section (2) is that the charge should then be read and

explained to the accused who shall be asked whether he

pleads guilty of the offence charged or claims to be tried.

21. Pari materia provisions can be found in Sections 227

(discharge) and 228 (framing of charge) in Chapter XVIII

Cr.P.C which deal with trial before the Court of Sessions.

22. In Union of India v. Prafulla Kumar Samal1 Supreme

Court considered the scope and ambit of Section 227 Cr.P.C

and after due consideration summed up the principles

governing Section 227. It was held as follows:-

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the

(1979) 3 SCC 4

evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial".

23. Thus, according to the Supreme Court, at the time of

framing of charge, the Court has the power to sift and weigh

the evidence to find out whether there is a prima-facie case

against the accused or not. Determination of prima-facie case

would depend on the facts of each case. No rule of universal

application can be laid down. If the materials on record

disclose grave suspicion against the accused then the Court

would be justified in framing charge. If the materials disclose

some suspicion against the accused but not grave suspicion,

the accused may be discharged. However, while carrying out

the above exercise, the Court should refrain from making a

roving enquiry into the pros and cons of the matter and weigh

the evidence as if he was conducting a trial.

24. Supreme Court in K.Ramakrishna v. State of Bihar2

held that the trial Court under Section 239 Cr.P.C and the

(2000) 8 SCC 547

High Court under Section 482 Cr.P.C is not called upon to

embark upon an enquiry as to whether evidence in question

is reliable or not or is sufficient to proceed further or not. If

upon admitted facts and documents no case is made out,

criminal proceedings instituted against the accused are

required to be dropped or quashed.

25. In State of Orissa v. Debendra Nath Padhi3, the

Supreme Court considered the question as to whether the

trial Court could at the time of framing of charge consider

materials filed by the accused. Supreme Court answered the

question in the negative. It was held that at the stage of

framing of charge roving and fishing inquiry is impermissible.

If the contention of the accused is accepted, there would be a

mini trial at the stage of framing of charge which would

defeat the object of the Code of Criminal Procedure. At the

stage of framing of charge, the defence of the accused cannot

be putforth. Acceptance of the contention of the accused

would mean permitting the accused to adduce his defence at

(2005) 1 SCC 568

the stage of framing of charge and for examination thereof at

that stage which is against the criminal jurisprudence. The

expression 'hearing the submissions of the accused' cannot

mean opportunity to file material at the stage of framing of

charge sheet; hearing the submissions of the accused is to be

confined to the materials produced by the police.

26. In Sheoraj Singh Ahlawat v. State of U.P4 is a case

where the Supreme Court after analyzing the provisions of

Section 239 and 240 Cr.P.C held that Court can direct

discharge only for reasons to be recorded by it and only if it

considers the charge against the accused to be groundless.

Referring to an earlier decision in Onkar Nath Mishra v.

State (NCT of Delhi)5, Supreme Court observed that at the

stage of framing of charge, the Court is required to evaluate

the materials and documents on record with a view to finding

out if the facts emerging there from taken at their face value

disclose existence of all the ingredients constituting the

alleged offence. At that stage Court is not expected to go deep

(2013) 11 SCC 476

(2008) 2 SCC 561

into the probative value of the materials on record. What

needs to be considered is whether there is a ground for

presuming that the offence has been committed and not that

a ground for convicting the accused has been made out. If on

the basis of the materials on record, a Court would come to

the conclusion that commission of the offence is a probable

consequence; a case for framing of charge exists. If the Court

were to think that the accused might have committed the

offence, it can frame the charge though for conviction the

conclusion is required to be that the accused has committed

the offence. At the stage of framing of charge probative value

of the materials on record cannot be gone into; the materials

brought on record by prosecution has to be accepted as true

at that stage. Judicial opinion regarding the approach to be

adopted for framing of charge is that such charges should be

framed if the Court prima facie finds that there is sufficient

ground for proceeding against the accused. Court is not

required to appreciate evidence as if to determine whether the

material produced was sufficient to convict the accused.

27. This position has been reiterated by the Supreme Court

in State v. S.Selvi6. Supreme Court has held that though the

trial judge has got power to sift and weigh the evidence, such

sifting and weighing evidence is for the limited purpose of

finding out whether or not a prima-facie case against the

accused has been made out for framing of charge. It has

been held as follows:

"8. In the matter on hand, the main allegation against the first Respondent-Accused No.2 as found in the charge sheet is that while the complainant along with the relevant documents proceeded to the residence of Accused Nos.1 and 2 at Door No.28, West Gopalapuram, Chennai-86, to get back his money due to him on 20.09.2011, at about 17:30 hours, Accused Nos.1 and 2 threatened the complainant, snatched away the documents from him, denied him permission to enter into their house and threatened him with dire consequences if he entered into their house. It is relevant to note that in the complaint dated 21.09.2011 it is stated that when the complainant went to West Gopalapuram and met Accused for an enquiry about payment, the Accused got furious, beat him and with the help of four henchmen pushed him out of their house. On the basis of these discrepancies, contention of the learned Counsel for the Accused that the case as made out by the prosecution cannot be believed inasmuch as the material on record is not consistent. It may give rise to some suspicion but not grave suspicion, though appears to be attractive, but is not acceptable in view of entire material on record. On going through the judgment of the High Court, we find that the High Court has virtually appreciated the entire material on

(2018) 13 SCC 455

record as if the High Court is trying a criminal case. It would be difficult to lay down the Rule of universal application as to how the prima facie case should be determined. Though the Judge has got power to sift and weigh the evidence, such sifting and weighing evidence is for the limited purpose of finding out whether or not a prima facie case against the Accused has been made out for framing of charge.

The test to determine a prima facie case would naturally depend upon the facts of each case. At this preliminary stage, the High Court was not justified in concluding that the Accused is entitled for discharge merely on the ground of discrepancy in the timings of the incident. The question as to whether Respondent No.1 was present on the place of incident or not during the relevant point of time or she had been in Calcutta as sought to be argued before this Court is a matter of proof. Such fact needs to be gone into by the trial Court after recording the evidence.

If on the basis of the material on record, the Court would form prima facie opinion that the Accused might have committed offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the Accused has committed the offence. At the time of framing of charges, the probative: value of the material on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate the material on record at the stage of Sections 227 or 239 of the Code, as the case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that material brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence".

28. Again in Srilekha Sentilkumar v. Deputy

Superintendent of Police, CBI7, Supreme Court after

considering the provisions of Section 239 Cr.P.C took the view

that issues raised by the accused and refuted by the otherside

can be decided more appropriately and properly during trial

after evidence is adduced by the parties rather than at the

time of deciding the application under Section 239 Cr.P.C.

29. However, we may add that a somewhat cautious

approach was adopted by the Supreme Court in Harshendra

Kumar.D v. Rebatilata Koley8 Supreme Court observed that

in a criminal case where trial is yet to take place, materials

relied upon by the accused which are in the nature of public

documents or which are beyond suspicion or doubt can be

looked into by the High Court in exercise of its jurisdiction

under Section 482 Cr.P.C or for that matter in exercise of

revisional jurisdiction under Section 379 Cr.P.C. However, a

caveat was put in by the Supreme Court that it is not proper

for the High Court to consider the defence of the accused or

(2019) 7 SCC 82

(2011) 3 SCC 351

embark upon an inquiry in respect of the merit of the

accusation. In the facts of that case, which was for quashing

the proceedings initiated by the complainant under Section

138 read with Section 141 of the Negotiable Instruments Act,

1881 where cheques issued by the appellant were

dishonoured by the bank, Supreme Court found as a matter

of fact that the appellant had resigned from the post of

Director before the dishonoured cheques were issued. In that

context, it was observed that if on the face of the documents

which are beyond suspicion or doubt placed by the accused,

the accusations against him cannot stand, it would be a

travesty of justice if the accused is relegated to stand trial and

he is asked to prove his defence before the trial Court.

30. Thus on the anvil of the case laws as discussed above

and considering the allegations against the petitioner, it

cannot be said that the present is fit case where trial should

be aborted and the petitioner discharged at the threshold.

There are materials on record which may or may not lead to

conviction of the petitioner at the end of the trial but in the

opinion of the Court those are adequate to sustain a criminal

trial. Viewed in the above context, the decision rendered by

the CBI Court on 05.08.2016 cannot be faulted.

31. Therefore there is no good ground to entertain the

present revision petition. Same is accordingly dismissed.

____________________________ UJJAL BHUYAN, CJ

22.07.2022 Pln/Vrks