Srilakshmi Yerra, Ias vs The State Of Telangana
2022 Latest Caselaw 5690 Tel

     HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

          CRIMINAL REVISION CASE No.693 of 2022

ORDER:

Challenge in this Criminal Revision Case is the order

that is rendered by the Court of Principal Special Judge for

CBI Cases, Hyderabad, in Crl.M.P.No.47 of 2021 in

C.C.No.1 of 2012, dated 17.10.2022.

2. The revision petitioner, who is arrayed as accused

No.6 in the Calendar Case in question, moved an

application for discharge and the same was dismissed by

the trial Court through the impugned order. Aggrieved by

the same, the petitioner is before this Court.

3. Heard the submission of Sri K.Raghavacharyulu,

learned counsel for the revision petitioner as well as the

learned Special Public Prosecutor for CBI.

4. A perusal of record and upon hearing the

submissions made by the respective parties, what could be

perceived is that the petitioner was not figured as accused

in the charge sheet initially. However, a supplementary

charge sheet was filed by the CBI projecting the culpability 2 Dr.CSL, J Crl.R.C.No.693 of 2022

of the petitioner and alleging that she was found to have

committed the offences punishable under Section 120-B

r/w 409 IPC and Section 13(2) r/w 13(1)(d) of the

Prevention of Corruption Act, 1988.

5. The facts of the case in nut-shell, as could be

perceived through the contents of the supplementary

charge sheet, are that a case was registered by the C.B.I.,

ACB, Hyderabad, vide Crime No.RC 17(A)/2009-CBI/Hyd

on 07.12.2009 for the offences punishable under Sections

120-B, 409, 420, 379, 411, 427 and 447 IPC, Section 13(2)

r/w 13(1)(d) of the Prevention of Corruption Act, 1988,

Section 26 of Indian Forest Act, 1927, Section 21 r/w 4(1)

and Sections 4(1)(A) and Section 23 of Mines and Minerals

(Development and Regulation) Act, 1957, to investigate the

boundary related disputes and illegal mining by M/s

Obulapuram Mining Company Private Limited (hereinafter

referred to as "M/s OMCPL" for brevity) and M/s Bellary

Iron Ores Private Limited (hereinafter be referred to as

"M/s BIOPL" for brevity) in Bellary Reserve Forest of

Anantapur District of Andhra Pradesh.

                                 3                              Dr.CSL, J
                                                  Crl.R.C.No.693 of 2022

6. On the Writ Appeal filed by C.B.I. vide Writ Appeal

No.532 of 2010, a Division Bench of the High Court of

Andhra Pradesh by order dated 16.12.2010, while vacating

the order of stay, ordered the C.B.I. to limit the

investigation only to the illegal mining activity and not to

probe into the boundary disputes till the same is decided

by the Committee constituted under the orders of Hon'ble

Supreme Court of India. Thus, the investigation was

limited to the allegations of illegal mining activity.

7. M/s OMCPL, who is arrayed as accused No.4, was

granted three leases on areas of 25.98 Ha, 39.50 Ha and

68.50 Ha. Likewise, M/s BIOPL was granted a lease of

27.12 Ha. M/s OMCPL in its lease area of 68.50 Ha in

Antargangamma konda area, shifted the permanent

boundary pillars of Station No.8 to western direction for

about 40 meters and constructed a permanent pillar in

order to criminally encroach upon the said un-allotted area

for commission of illegal mining. Similarly, permanent

pillar of Station No.10 was also mischievously removed.

Illegal roads were formed for transportation of ore to join

Station No.7 instead of Station No.8. Likewise, illegal roads 4 Dr.CSL, J Crl.R.C.No.693 of 2022

were formed near Station No.1 in the reserve forest area

outside the lease area over a distance of 2.95 kms.

M/s OMCPL (Accused No.4) at their site of 68.50 Ha area,

dispatched 29.32 lakh Metric tons of iron ore. However,

from the physical appearance of the site, it appears that

not even 40% of the aforesaid quantity could have been

extracted from the said area. It is also an allegation that

near the lease areas of 39.50 Ha and 25.98 Ha, there has

been illegal dumping of iron ore in the adjacent reserve

forest area.

8. It is also alleged that there is improper fixation of

location of mining area in criminal conspiracy with

unknown public servants by M/s OMCPL (accused No.4) at

its site of 25.98 Ha and that it has encroached into the

adjacent mining leases. It is further alleged that

M/s BIOPL has shown dispatch of iron ore from its lease

area whereas no active mining activity was found in the

said mining area. It is also alleged that M/s BIOPL on its

lease area of 27.12 Ha has utilised 1.8 Ha of reserve forest

area outside the leasing boundary for dumping the

overburden/mining waste without approval and thereby, 5 Dr.CSL, J Crl.R.C.No.693 of 2022

committed criminal trespass causing wrongful loss to the

Government.

9. Sugalamma Devi temple located in the reserve forest

near their mining leases was destroyed by the accused with

an intention to carry out illegal mining in that area as the

said area is having rich iron ore content.

10. Investigation in respect of accused Nos.1 to 5 was

completed and hence, a charge sheet was filed against

them. Later, the investigating agency filed a memo under

Section 173(8) Cr.P.C. for further investigation. After

completion of investigation in respect of the petitioner, a

supplementary charge sheet is filed showing her as

accused No.6.

11. The petitioner while working as Secretary, Industries

and Commerce Department, during 17.5.2006 and

10.10.2009 entered into criminal conspiracy with other

accused and in furtherance of the conspiracy, abused her

official position as public servant and granted two mining

leases by issuing two Government Orders, vide

G.O.Ms.Nos.151 and 152, Industries and Commerce (M-III)

Department, dated 18.6.2007, to accused No.4, who is 6 Dr.CSL, J Crl.R.C.No.693 of 2022

represented by accused Nos.1 and 2, and thereby,

facilitated the accused-lessees to cheat the Government.

The petitioner being a public servant committed criminal

breach of trust by facilitating the lessees to cheat the

Government.

12. As per the investigation done, the deceased-accused

No.5 who was the then Assistant Director, Mines and

Geology, Anantapur, had issued open ended notification for

re-grant of lease area of 231 acres (93 Ha). In response to

the said notification, accused Nos.1, 2 and 4 entered into

criminal conspiracy with the deceased-accused No.5 and

applied for mining lease. They flouted a firm in the name

and style of M/s Vinayaka Mining Company. M/s Vinayaka

Mining Company also applied for the lease area.

Subsequently, other applications were also received by the

Office of Assistant Director, Mines and Geology,

Anantapur. The deceased-accused No.5 recommended the

application of M/s OMCPL (accused No.4) for an area of

68.50 Ha and that of A.P. Mineral Development

Corporation for an area of 25 Ha. The then Director of

Mines and Geology, Hyderabad, (accused No.3) initiated a 7 Dr.CSL, J Crl.R.C.No.693 of 2022

note on 02.11.2005 and recommended the case of

M/s OMCPL, while comparing it with M/s Vinayaka Mining

Company, as the only applicant which has filed its

application on the same day as that of M/s OMCPL. The

other applications were not considered in contravention of

the provisions laid down in the Mines and Minerals

(Development and Regulation) Act, 1957 (hereinafter

referred to as "MM (D&R) Act, 1957"). Basing on the

recommendations of accused No.3, Sri P.Kripanandam, the

then Secretary, Industries and Commerce Department,

Government of Andhra Pradesh, (accused No.8) approved

provisionally pending other clearances that M/s OMCPL be

considered for the said mining lease. Investigation revealed

that accused No.3 wrote to Forest Department for

clearances for M/s OMCPL. Later M/s OMCPL submitted

the mining plans prepared by one M/s Geo Environmental

Labs, which included the report of quality of iron ore in it.

Investigation further revealed that the said report was

concocted by the representative of M/s Geo Environmental

Labs at the behest of accused No.1. On 09.01.2007,

accused No.3 sent a note along with the approved mining 8 Dr.CSL, J Crl.R.C.No.693 of 2022

plan to the petitioner, who was the then Secretary of

Industries and Commerce Department.

13. Investigation also revealed that the petitioner being a

public servant, as Secretary, Industries and Commerce

Department, Government of Andhra Pradesh, has entered

into criminal conspiracy with accused Nos.1 to 3 and

others in facilitating them to cheat the Government by

resorting to abuse of official powers in sanctioning the iron

ore mining leases to M/s OMCPL violating all the Rules

and procedures prescribed in the MM (D&R) Act, 1957 and

the Mineral Concession Rules, 1960. On 18.01.2007, the

petitioner wrote a letter vide letter No.491/M.III(1)2007-1

to the Secretary, Department of Mines, Government of

India. In the said letter also, a comparison was made only

between M/s OMCPL and M/s Vinayaka Mining Company

on the pretext that those applications were received on the

same day and all the other applications received

subsequently are proposed to be rejected. Government of

India, Ministry of Mines, New Delhi, wrote a letter vide

letter No.5/14-2007-MIV-New Delhi, dated 30.3.2007,

requesting the State Government to consider all the 9 Dr.CSL, J Crl.R.C.No.693 of 2022

applications as simultaneous applications and to furnish

comparative chart on merits in respect of all the applicants

for the area (including those who have been treated as pre-

mature) and to send a copy of reasoned orders for rejecting

the applications of remaining applicants after evaluating all

the 30 applications in terms of the criteria laid down in

Section 11(3) of MM (D&R) Act, 1957. On 21.4.2007, the

petitioner wrote to the Government of India insisting for

issuance of prior approval under Section 5(1) of MM (D&R)

Act, 1957 and assured that all the pre-requisite formalities

would be taken care. In the said letter, the petitioner also

mentioned that M/s OMCPL will utilise the iron ore for

consumption in the ensuing integrated steel plant

proposed to be put up by it. Government of India vide letter

dated 25.5.2007, conveyed the approval of Central

Government to grant mining lease of iron ore over an area

of 68.50 Ha in favour of M/s OMCPL for a period of 20

years, as recommended by the Government of Andhra

Pradesh, with a condition that before allowing the grant,

the State Government may ensure the compliance of the

amended Acts and Rules including Forest (Conservation)

Act, 1980, and the Environmental notification, dated 10 Dr.CSL, J Crl.R.C.No.693 of 2022

27.01.1994. On receipt of the said letter from the

Government of India, the petitioner immediately issued

show cause notices to various applicants on 31.5.2007

(which were dispatched on 02.6.2007), wherein the

applicants were directed to show cause within 15 days

from the date of the show cause notice as to why their

applications shall not be rejected on the ground of date of

receipt of their applications and the relative merits. The

petitioner, even before the replies to the show cause notices

were received in some cases, and ignoring the request of

the applicants for extension of time in some cases, in

furtherance of the criminal conspiracy with other accused

refused the other applications on the ground that they are

not supported by any rationale and summarily rejected the

other representations on 18.6.2007 without giving an

opportunity of being heard and thereby, the petitioner has

shown undue favour to M/s OMCPL and on the same day,

Government Order vide G.O.Ms.No.151 was issued

granting mining lease to M/s OMCPL. The petitioner

wantonly did not mention in the said G.O. that iron ore

excavated will be utilised for "captive purpose". Whereas in

the rejection letter, dated 18.6.2007, issued to 11 Dr.CSL, J Crl.R.C.No.693 of 2022

M/s Sathavahana Ispat Limited, it was clearly mentioned

that M/s OMCPL was proved to be a prudential

entrepreneur with foresight which was already holding the

mining lease and applied for additional areas in view of

their intention to establish a captive plant. Though

M/s Satavahana Ispat Limited was established in 1992, it

did not acquire even single mining lease for iron ore for

captive purpose. Investigation revealed that the petitioner

on the same day i.e., on 18.6.2007 issued another G.O.,

vide G.O.Ms.No.152 sanctioning mining lease of iron ore to

an extent of 39.481 Ha in Survey No.I/P of Obulapuram

Village, Anantapur District in favour of M/s OMCPL. In the

said G.O., there was no mention about the captive mining.

Whereas the application of M/s Gimpex Private Limited

was got rejected by invoking the reason "captive mining".

Taking undue advantage of the absence of captive mining

clause in the said G.O., M/s OMCPL has started excavating

iron ore from the said area, exported the same and made

huge gains. The petitioner was instrumental in

promulgating the G.Os. in connivance with other accused

by abusing her official position as a public servant.

                                12                             Dr.CSL, J
                                                 Crl.R.C.No.693 of 2022

14. The intention of the petitioner is that at any cost the

mining leases have to be granted in favour of M/s OMCPL.

In respect of the alleged G.Os. issued, vide G.O.Ms.Nos.151

and 152, the note sheet was approved on 18.6.2007 by the

petitioner, her staff as well as the Minister in-charge of

mining, which shows that the primary cause for deciding

the grant of lease in favour of M/s OMCPL was that it were

to utilize the iron ore for captive consumption. The

petitioner being the then Secretary, Industries and

Commerce Department, is responsible to ensure the

correctness of the G.Os issued by the said department. The

petitioner in furtherance of the criminal conspiracy and by

abusing her official position has issued the said G.Os.,

without mentioning the rider "captive mining" intentionally

and thereby, facilitated accused Nos.1 and 2 of

M/s OMCPL to excavate and sell the iron ore in the local

market and overseas and to cover up the illegal mining

carried out by them in Karnataka resulting in undue

pecuniary gain to M/s OMCPL. Had the alleged G.Os. been

issued with a rider "captive mining", thereby restricting the

utilization of iron ore mined only for consumption in the

proposed steel plant to be set up by M/s OMCPL, the 13 Dr.CSL, J Crl.R.C.No.693 of 2022

impetus would have been to develop the steel plant and to

conserve the iron ore till that time and use it for the

production of steel in the steel plant. However, in view of

the deliberate exclusion of rider "captive mining" in the

said G.O., M/s OMCPL indulged in indiscriminate

exploitation of iron ore illegally.

15. The petitioner, after the issues of illegal mining were

being debated and challenged in the courts of law, having

been consciously aware of the implications in the said

G.Os., did not evince any interest to rectify the G.Os issued

by her. This clearly establishes the complicity of the

petitioner in commission of offence and existence of nexus

between her and other accused beneficiaries. Further, on

the instructions of the petitioner, an official

correspondence was given to the Director of M/s OMCPL

and the brother-in-law of accused No.3.

16. It further came to light that one Sri M.Rakesh Babu,

who is the brother-in-law of the petitioner, has acquired

many properties during the years 2005-2009 and his

financial resources did not commensurate with the value of

the properties acquired by him. Evidence in that regard is 14 Dr.CSL, J Crl.R.C.No.693 of 2022

being collected and is being separately analysed. Further,

the investigation on the aspect of monetary benefits

obtained by the petitioner for the favour shown by her to

the other accused is in progress and further, report, if any,

would be submitted. Thus, the petitioner thereby

committed offences punishable under Section 120-B r/w

409 IPC and Section 13(2) r/w 13(1)(d) of the Prevention of

Corruption Act, 1988.

17. The petitioner moved an application vide

Crl.M.P.No.47 of 2021 in C.C.No.1 of 2012 before the trial

Court seeking to discharge her. The said application was

dismissed through order dated 17.10.2022 and aggrieved

by the same, the petitioner is before this Court.

18. Thus, the point that arises for consideration is

Whether the revision petitioner who is accused of committing the offences punishable under Section 120-B r/w 409 IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, is entitled for discharge.

19. Making his rigorous submission, the learned counsel

for the petitioner arguing in respect of the merits of the 15 Dr.CSL, J Crl.R.C.No.693 of 2022

case, contended that the learned judge of the trial Court

failed to appreciate the availability of notification, the

window period during which the applications seeking grant

of mining lease are to be submitted, the document

verification done by the Assistant Director of Mines and

Geology and the report submitted, the precise area fixed

and the nomenclature of the villages. Learned counsel

contended that the impugned order rendered by the trial

Court itself, which runs to 102 pages, reveals the fear on

part of the learned judge to entertain the application filed

by the petitioner for discharge. Learned counsel submitted

that the case being sensitive in nature, judiciary never

came forward to do justice to the accused. Learned counsel

also contended that the learned judge of the trial Court

made a mountain out of a molehill by catching hold of the

description made in G.O.Ms.Nos.151 and 152. He

contended that all the relevant considerations were

ignored. Learned counsel for the petitioner proceeding

further with his submission, laid much stress upon the

definition of the term "offence" as enunciated under Section

2(n) Cr.P.C and argued in respect of the alleged acts of the

petitioner. He stated that no offence is committed by the 16 Dr.CSL, J Crl.R.C.No.693 of 2022

petitioner even if the contents of the voluminous charge

sheets are taken into consideration.

20. Learned counsel further submitted that the allegation

that is levelled against the petitioner is that she

intentionally omitted the word "captive mining" in the G.Os

issued and thereby, facilitated M/s OMCPL to do illegal

mining. Learned counsel contends that the Hon'ble Apex

Court in the cases between Sandur Manganese and Iron

Ores Ltd. Vs. State of Karnataka1, Tata Iron & Steel

Co. Ltd. Vs. Union of India & Another2 and Indian

Charge Chrome Ltd. & Another Vs. Union of India3 has

categorically held that restrictive clause such as "captive

mining" is not feasible and the same cannot be in the

interest of mineral development. Learned counsel also

submitted that though the word "captive mining" was

incorporated in MM(D&R) Act, 2015, the same was deleted

by the MM(D&R) Amendment Act, 2021.

21. Learned counsel also stated that the Central

Government in its approval for grant of mining lease, dated

(2010) 13 SCC 1

(1996) 9 SCC 709

(2006) 12 SCC 331 17 Dr.CSL, J Crl.R.C.No.693 of 2022

25.05.2007, did not encourage any restrictive clause of

captive mining and had the Central Government

incorporated such rider in the sanction letter and had the

petitioner deleted the said word "captive mining"

intentionally, then the same amounts to omitting, but

nothing as such happened in the present case. Learned

counsel also stated that the substantive offence charged

against the petitioner is illegal mining and thus, the order

rendered by the trial Court is contrary to the contents of

the charge sheets filed. Learned counsel also stated that

the learned judge of the trial Court conducted roving

enquiry at the stage of discharge and went beyond the

contents of the charge sheets laid. Learned counsel

submitted that the impugned order rendered by the

learned judge of the trial Court, which runs to 102 pages,

is nothing but a judgment without evidence which is

impermissible in law. Learned counsel also stated that

there is no nexus, complicity and accomplishment and in

the absence of those ingredients, a charge cannot be

framed against the petitioner. By stating so, learned

counsel seeks for discharge of the petitioner by allowing 18 Dr.CSL, J Crl.R.C.No.693 of 2022

the Criminal Revision Case and thereby, setting aside the

impugned order.

22. The contrary submission made by the learned Special

Public Prosecutor for CBI is that after thorough

investigation, the supplementary charge sheet is laid

against the petitioner and in case, the petitioner is put on

trial, her participation in the commission of offences would

come to light and therefore, the petitioner cannot be

discharged. Learned Special Public Prosecutor also stated

that during the tenure of the petitioner, the aforesaid

controversial G.Os were issued and thus, the whole

responsibility for issuance of the said G.Os should be

borne by the petitioner. Learned Special Public Prosecutor

also contended that had the petitioner restrained herself

from issuing the alleged G.Os, the prime accused would

not have proceeded with illegal mining. Learned Special

Public Prosecutor also stated that though initially, charge

sheet was filed against five accused, as the involvement of

the petitioner, who was the then Secretary, Industries and

Commerce Department, Government of Andhra Pradesh,

was found, she was subsequently charge sheeted and 19 Dr.CSL, J Crl.R.C.No.693 of 2022

supplementary charge sheet was filed to that effect. By

submitting thus, learned Special Public Prosecutor seeks to

dismiss the Criminal Revision Case.

23. In the case on hand, by the submissions made by of

the learned counsel for the petitioner as well as learned

Special Public Prosecutor, it is clear that there are three

charge sheets and one supplementary charge sheet. In the

first charge sheet, accusation is made against five persons.

In the supplementary charge sheet, the petitioner is added

as accused No.6. Through the second charge sheet,

another accused i.e., accused No.7 is added. Likewise,

through the third charge sheet, two other accused i.e.,

accused Nos.8 and 9 were added.

24. The matrix of the case, the allegations that are

levelled against the petitioner and the role played by her

through all the charge sheets, more particularly which is

filed exclusively in respect of the petitioner i.e., the

supplementary charge sheet, if narrated point-wise, is as

under:-

(i) The petitioner who is a civil servant joined Industries

and Commerce Department as Secretary on 17.5.2006.

                                    20                                Dr.CSL, J
                                                        Crl.R.C.No.693 of 2022


(ii)    The petitioner without following the established

procedure,    reiterated     the        justification    made        earlier

regarding comparison of M/s OMCPL and M/s Vinayaka

Mining Company and thereby, extended undue

favour/pecuniary advantage towards accused Nos.1, 2 and

4 by abusing her official position.

(iii) The petitioner recommended through letter dated

18.01.2007 to the Secretary, Government of India,

Department of Mines, New Delhi, the case of M/s OMCPL

for grant of mining lease and to convey prior approval.

(iv) The petitioner directed her staff to hand over the

letter dated 18.01.2007 to the brother-in-law of accused

No.3, which prima facie shows that she was in league with

the other accused.

(v) When the Under Secretary to Government of India,

Ministry of Mines, responded to the said letter on

30.3.2007 and informed the State Government that since

the area is a notified area, all applications in respect of the

said area are required to be considered as simultaneous

applications, the petitioner responded to the said letter by

addressing another letter dated 21.4.2007 to the Secretary, 21 Dr.CSL, J Crl.R.C.No.693 of 2022

Government of India, Department of Mines, New Delhi, in

which she took a stand that the Government of Andhra

Pradesh was justified in considering only two applicants.

(vi) The petitioner claimed that M/s OMCPL was

considered as meritorious in terms of experience and

financial capability and that they are going to set up a steel

plant. She also claimed that reasoned orders rejecting

other mining lease applications would be sent to the

ministry later. A copy of the said letter was also handed

over to the brother-in-law of accused No.3.

(vii) On 18.6.2007, the petitioner approved the final

decision wherein she gave final priority to M/s OMCPL over

other applicants.

(viii) In the note prepared, the petitioner also

mentioned that M/s OMCPL will be setting up an

integrated steel plant.

(ix) The note submitted was immediately approved by

one and all including the then Minister of Mines on

18.6.2007 and G.O.Ms.No.151 was issued on the same day 22 Dr.CSL, J Crl.R.C.No.693 of 2022

conveying the decision of the Government of Andhra

Pradesh granting mining lease to M/s OMCPL.

(x) The petitioner in league with other accused

intentionally avoided to incorporate the term "captive

mining" in the said G.O.

(xi) The petitioner intentionally did not send any

reasoned order to the Government of India indicating the

reasons for rejection of other applicants.

(xii) The petitioner in furtherance of criminal conspiracy

with accused Nos.1 and 2 has taken undue interest and

insisted to accord approval for the proposal and thereby,

abused her official position.

(xiii) The petitioner in furtherance of the criminal

conspiracy allowed a different area to be given on lease

than that is mentioned in the notification.

(xiv) The petitioner adopted the same procedure in

reference to mining lease of M/s OMCPL with regard to

39.50 Ha.

(xv) She avoided to include the rider "captive mining" in

furtherance of criminal conspiracy.

                                23                           Dr.CSL, J
                                               Crl.R.C.No.693 of 2022

(xvi) The petitioner in the capacity of Secretary, Industries

and Commerce Department, which has dominion over

mining leases in the State, failed to carry out the

prescribed procedure established under MM (D&R) Act,

1957 and the Mineral Concession Rules, 1960.

25. The petitioner was charge sheeted for the offences

punishable under Section 120-B r/w 409 IPC and Section

13(2) r/w 13(1)(d) of the Prevention of Corruption Act,

1988. Thus, primarily it is to be seen whether the case

facts attracts those provisions or not.

26. Section 409 IPC makes a public servant or a banker

or a merchant or an agent liable for punishment, who

having been entrusted with property or with any dominion

over the property in his capacity of a public servant or in

the way of his business as a banker, merchant, factor,

broker, attorney or agent commits criminal breach of trust

in respect of that property.

27. The term "criminal breach of trust" is defined under

Section 405 IPC. The same reads as under:-

"Criminal breach of trust:-Whoever, being in any manner entrusted with property, or with any 24 Dr.CSL, J Crl.R.C.No.693 of 2022

dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "Criminal breach of trust".

28. Therefore, it is incumbent on part of the prosecuting

agency to prima facie show that there is entrustment of any

property or any dominion over the property to the petitioner

and that, she has dishonestly misappropriated or converted

to her own use that property or that she dishonestly used

or disposed of that property in violation of any direction of

law prescribed.

29. The whole case of the prosecution is that the

petitioner committed the offences while working as

Secretary, Industries and Commerce Department. However,

no where it is mentioned that the petitioner is entrusted

with the alleged areas of mining and that she had exclusive

dominion over the said mining areas. It is not in dispute

that the mining areas covers both Andhra Pradesh and 25 Dr.CSL, J Crl.R.C.No.693 of 2022

Karnataka States. The submission of the learned counsel

for the petitioner in this regard is that the areas at present

fall within the territorial jurisdiction of the state of

Karnataka. Without entering into that aspect, by the

material produced by the prosecuting agency itself, it is

clear that much water had flown before the petitioner has

taken charge as Secretary, Industries and Commerce

Department, Government of Andhra Pradesh. The allegation

against the petitioner is that she has committed criminal

breach of trust in pursuance of criminal conspiracy with

other accused.

30. Section 120-A IPC defines what "criminal

conspiracy" is and Section 120-B IPC prescribes

punishment for criminal conspiracy.

31. As rightly pointed out by the learned counsel for the

petitioner, not even a single line statement is present in the

entire material produced by the prosecuting agency that the

petitioner at any time has contacted either accused No.1 or

accused No.2 or any of the representatives of accused No.4.

The prosecuting agency alleges that the petitioner has

handed over the copies of correspondence to accused No.4 26 Dr.CSL, J Crl.R.C.No.693 of 2022

and brother-in-law of accused No.3. However, no where the

date on which they were handed over and at least the place

are mentioned in the charge sheets.

32. The supplementary charge sheet reveals as if the

petitioner has played a prominent role in issuance of the

alleged G.Os. The material placed before this Court by the

investigating agency itself, through a memo, reveals that

the alleged role, if any, played by the petitioner is very

minimal and issuance of the alleged G.Os is in consequence

of the earlier correspondence and the decisions taken.

There is sufficient material on record to show that the

alleged G.Os., vide G.O.Ms.Nos.151 and 152 are in

consequence of the decisions taken earlier. The discussion

that would go further reveals the said fact.

33. The correspondence that went on and the decisions

taken are tabulated and is filed through a memo by the

C.B.I. before this Court. The ingredients of the said memo

are as under:-

Sl.No Points on which information is Information/remarks of the sought for Investigating Agency (CBI)

1. Date on which an open ended 12.07.2004 - page - 20 -

notification for re‐grant of lease for last para of first charge 231 acres was issued sheet 27 Dr.CSL, J Crl.R.C.No.693 of 2022

2. Date on which an application was 28.08.2004 - page - 21 moved for mining and for grant second para of first charge lease sheet

3. Date on which the firm by name 23‐08‐2004 - page - 23 -

and style M/s Vinayaka Mining first para of first charge Company was flouted sheet

4. Date on which M/s Vinayaka Mining 28‐08‐2004 - page - 21 -

company applied for lease area second para of first charge sheet

5. Date on which other applications 23 application after 05‐10‐ were received by the Office of 2004 onwards and five Assistant Director, Mines and prior to this date - page 21 Geology, Anantapur - third para of first charge sheet

6. Date on which Accused No.5 (late 21‐10‐2005 - page 22 -

Sri Rao Linga Reddy) recommended second para of first charge the application of accused No.4 sheet. (M/s OMCPL) for an area of 68.50 Ha

7. Date on which accused No.5 21‐10‐2005 - page 23 - last recommended the application of para of first charge sheet. M/s AP Mineral Development Corporation for an area of 25 Ha

8. Date on which the other 21‐10‐2005 - pages 22 and applications were not considered, 23 of first charge sheet. which is in contravention to provisions laid down in Mines and Minerals (Development and Regulation) Act, 1957

9. Date on which Shri Kripandandam, 07/08 - 11‐ 2005 - last the Then Secretary, Industries And para in page 27 and first Commerce, Government of Andhra para in 28 of first charge Pradesh, approved provisionally sheet pending other clearances that M/s OMCPL be considered for mining

10. Date on which Accused No.3 wrote 23‐12‐2005 - last para of for clearance for M/s OMCPL (A‐4) page 28 of first charge sheet (Seeking clearance from Forest Department for A‐4)

11. Date on which M/s OMCPL May, 2006 - last para of 28 Dr.CSL, J Crl.R.C.No.693 of 2022

submitted the mining plans page 29 of first charge prepared by M/s Geo sheet Environmental labs which included the report of quality of iron ore.

12. Date on which applications were Four applications i.e. on received, which were subsequently 16‐12‐2022, 15‐11‐2003, rejected basing on the date of 29‐03‐2004 & 21‐05‐2004, receipt of the applications and the (before issue of notification relative merits. on 12‐07‐2004) and 26 applications 04‐08‐ 2004 (APMDC) on 28‐08‐2004 (OMC and Vinayaka), 05‐ 10‐004, 12‐10‐ 2004, 27‐ 10‐2004,06‐11‐2004, 08‐ 11‐2004, 18‐11‐2004, 19‐ 11‐2004, 03‐01‐2005, 15‐ 01‐2005, 08‐02‐2004, 18‐ 02‐ 2005, 11‐05‐2005, 13‐ 06‐2005, 05‐07‐ 2005, 10‐ 08‐2005, 17‐08‐2005, 25‐ 08‐2005, 19‐09‐2005 and 22‐09‐2005)

13. Date on which the applicants On 18‐06‐2007 by SJK Steel moved for extension of time in Plant Ltd. and on 19‐06‐ some cases, which were refused by 2007 by M/s PH Minerals, the Petitioner with reference to Show Cause Notices dt.31.05.2007.

34. Thus, by the above information furnished by the

investigating agency itself, it is clear that open ended

notification for grant of lease for 231 acres was issued in

the year 2004, by which time the petitioner was not in the

Department of Industries and Commerce. The applications

for grant of mining lease were also moved in the year 2004,

by which time the petitioner was not in the Department of 29 Dr.CSL, J Crl.R.C.No.693 of 2022

Industries and Commerce. M/s Vinayaka Mining Company

was flouted in the year 2004, by which time the petitioner

was not in the Department of Industries and Commerce.

The said M/s Vinayaka mining Company applied for lease

area in the year 2004, by which time the petitioner was not

in the Department of Industries and Commerce. The other

23 applications were received in the year 2004 itself, by

which time the petitioner was not in the Department of

Industries and Commerce. Accused No.5 recommended the

application of M/s OMCPL for an area of 68.50 Ha in the

year 2005, by which time the petitioner was not in the

Department of Industries and Commerce. Accused No.5

recommended the application of M/s Andhra Pradesh

Mineral Development Corporation for an area of 25 Ha in

the year 2005, by which time the petitioner was not in the

Department of Industries and Commerce. The other

applications were not considered in contravention of the

provisions of MM (D&R) Act, 1957 in the year 2005, by

which time the petitioner was not in the Department of

Industries and Commerce. Sri Kripanandan (accused No.8),

who was the then Secretary, Industries and Commerce

Department, Government of Andhra Pradesh, approved 30 Dr.CSL, J Crl.R.C.No.693 of 2022

provisionally that M/s OMCPL be considered for mining in

the year 2005 itself, by which time the petitioner was not in

the Department of Industries and Commerce. Accused No.3

wrote for clearance for M/s OMCPL in the year 2005, by

which time the petitioner was not in the Department of

Industries and Commerce.

35. Thus, the above facts reveals justification in the

submissions made by the learned counsel for the petitioner

that having regard to the previous correspondence and the

material available at the Department, the petitioner had

approved the notes and paved way for issuance of the

alleged G.Os. That does not mean that the petitioner has

got criminal conspiracy with the other accused and she is

solely responsible for the issuance of the alleged G.Os.

36. Coming to the alleged controversial G.Os., i.e.,

G.O.Ms.Nos.151 and 152, a bare perusal of the said G.Os.,

reveals justification in the submission made by the learned

counsel for the petitioner.

37. G.O.Ms.No.151, Industries and Commerce (M-III)

Department, dated 18.6.2007 was issued basing on

Government Memo No.18322/M.III(1)/2005, dated 31 Dr.CSL, J Crl.R.C.No.693 of 2022

10.11.2005. The said reference is made in the G.O. itself. A

perusal of the said memo reveals that it was issued by

Sri B.Kripanandam (accused No.8), Secretary to

Government. The decision taken through the said memo, as

could be perceived through paras 4 and 5 of the said memo,

is as under:-

"4.After careful examination of the matter, the Government has provisionally proposed to grant Mining Lease for Iron Ore over an extent of 68.52 Hectares in Sy.No.1 &2 of Antargangamma konda of Siddapuram and Malapanagudi Villages of Kalyana Durga Reserve Forest, D-Hicelal Mandal, Anantapur District in favour M/s Obulapuram Mining Company Private Limited for a period of 20 years, as per MM(D&R) Act, 1957 and the rules made thereunder and subject to prior approval of Government of India under Section 5 of MM(D&R) Act, 1957 and also subject to obtaining the Forest Clearance and submission of Approved Mining Plan under Rule 22 (4) of MC Rules, 1960 within 6 months from the date of receipt of this Memo by the applicant company. The remaining area of M/s Obulapuram Mining Company (P) Ltd is not considered, as the same is considered in favour of M/s A.P Mineral Development Corporation Limited. However, it is also made clear that even this provisional grant subject to outcome of 32 Dr.CSL, J Crl.R.C.No.693 of 2022

Revision filed by M/s Sathavahana Ispat Nigam Limited before Government of India.

5. M/s Obulapuram Mining Company (P) Limited are therefore requested to submit the mining plan approved by the Indian Bureau of Mines for the subject area referred to in para-4 above within a period of 6 months from the date of receipt of this memo through the Director of Mines & Geology, for consideration of their Mining Lease application. If they fail to submit the same it will be presumed that they have no interest in their ML application and further action will be taken based on the material available with the government. They are also requested to get forest clearance for the above areas and submit both Approved Mining Plan and forest clearance for further consideration of Mining Lease grants after following the due procedure."

38. Thus, the Government has provisionally proposed to

grant mining lease for iron ore to an extent of 68.52 Ha in

favour of M/s OMCPL through the said memo. It is not the

version of the prosecuting agency that the petitioner had

played any role in issuance of the said memo. Undoubtedly,

the said memo formed basis for all the subsequent

correspondence and the outcome of G.O.Ms.No.151.

                                    33                              Dr.CSL, J
                                                      Crl.R.C.No.693 of 2022

Therefore, it would be wholly undesirable to tag the said

G.O. to the acts of the petitioner.

39. In the same manner, G.O.Ms.No.152, Industries and

Commerce (M-III) Department, was issued basing on Govt

Memo No.11031/M.III(1)/2005-I, dated 08.11.2005. The

said memo was also issued by Sri B.Kripanandam (accused

No.8), Secretary to Government. Through the said memo, it

is clear that the Government provisionally proposed to

grant mining lease of iron ore over an extent of 10.437 Ha

and also 29.044 Ha in favour of M/s OMCPL subject to the

conditions laid therein. The operative portion of the said

memo is as under:-

"The Government, have provisionally proposed to grant ML for Iron Ore over an extent of 10.437 Hectares and also 29.044 Hectares against their ML applications dt: 02-11-04 and 08-02-05 respectively In Sy.No.1/P, Obulapuram (V), D.Hirehal (M), Ananthapur District in favour of M/s Obulapuram Mining Company Private Limited subject to submission of AMP and also subject to approval of GO1 under sections 5 & 11(5) of MM(D&R)Act, 1957 and also request the Environment Forest Science and Technology Department to process the application 1st and 34 Dr.CSL, J Crl.R.C.No.693 of 2022

2nd cited above keeping in view the instructions issued vide reference 4th cited."

40. At that time, the petitioner was not in the

department and therefore, it is clear that the petitioner has

nothing to do with the things transpired at that time. Thus,

when the petitioner was not even in the department or at

any place around the affairs by the date of open ended

notification, by the date of receiving the applications, by the

date of flouting of M/s Vinayaka Mining Company, by the

date on which the said company applied for lease, by the

date of receipt of other applications, by the date of

recommendation of accused No.5 in favour of accused No.4,

by the date on which other applications were held not

considered, by the date on which Sri B.Kripanandam

(accused No.8), the then Secretary, Industries and

Commerce, Government of Andhra Pradesh, approved

provisionally M/s OMCPL for mining and by the date

accused No.3 wrote for clearance for M/s OMCPL, this

Court is of the view that it would be unjust to hold that the

petitioner had conspired with the other accused and the

said G.Os are the outcome of the said conspiracy.

                               35                          Dr.CSL, J
                                             Crl.R.C.No.693 of 2022

41. No correspondence whatsoever either direct or

through phones or through any other means by the

petitioner with any other accused is placed on record by the

investigating agency. Hence, a charge for the said offence

i.e., the offence punishable under Section 120-B r/w 409

IPC cannot be framed. Admittedly, to frame a charge, there

should be some basis. By bare allegations without at least

prima facie material pointing out against the petitioner,

charge cannot be framed against her and trial of the case

cannot be proceeded with.

42. Coming to the other provision of law invoked, the

allegation of the prosecution is that the petitioner has

committed the offences punishable under Section 13(2) r/w

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

43. Section 13 of the Prevention of Corruption Act,

1988, makes criminal misconduct by a public servant a

punishable offence. In what circumstances a public servant

is said to commit the offence of criminal misconduct is

narrated in the said provision itself.

44. To connect the petitioner with the said misconduct,

the prosecution has to show that the petitioner is 36 Dr.CSL, J Crl.R.C.No.693 of 2022

habitually accepting or obtaining or agreeing or accepting

or attempting to obtain from any person for himself or for

any other person any gratification other than legal

remuneration as a motive or reward. Nowhere in the charge

sheet, it is mentioned that the petitioner at any time either

accepted or obtained or agreed to accept or attempted to

obtain either for herself or for any other person any

gratification other than legal remuneration. Also, it is not

shown that the petitioner has received or attempted to

receive any valuable thing without consideration to perform

any official favour. Also, it is not shown that the petitioner

has dishonestly or fraudulently misappropriated or

converted for her own use any property which is entrusted

to her. It is also not shown that the petitioner has obtained

for herself or for any other person any valuable thing or

pecuniary advantage or abused her official position for

obtaining herself or for any other person any valuable thing

or pecuniary advantage. Also, it is not shown that the

petitioner has pecuniary resources or property which she

could not satisfactorily account for. Though it is indicated

in the charge sheet that one B.Rakesh Babu, brother-in-

law of the petitioner, had acquired many properties during 37 Dr.CSL, J Crl.R.C.No.693 of 2022

the relevant period, the prosecuting agency mentioned that

evidence in that regard is being collected and the report, if

any, would be submitted. However, no such report appears

to have been filed. Even the learned Special Public

Prosecutor did not state during his entire submission that

such a report was forwarded to the Court concerned. What

pecuniary advantage the petitioner has obtained or other

advantage she has received for performing those acts from

any of the accused is not even remotely stated in the

charge sheet. Therefore, a charge in that regard cannot be

framed.

45. When the order of the trial Court is gone through,

the trial Court having placed all the contents of the charge

sheets, four in number, and the gist of voluminous

documents produced, has concluded that because of such

voluminous material, the petitioner can be charged of the

offences alleged. That observation in the opinion of this

Court is wholly undesirable. For making a specific charge,

there should be specific allegation against the petitioner.

Omnibus allegations, how voluminous they may be, cannot

form basis to frame charge.

                              38                           Dr.CSL, J
                                             Crl.R.C.No.693 of 2022

46. In the case on hand, by all the material that is

brought on record and upon hearing the enlightened

submissions made by learned counsel for the petitioner

and learned Special Public Prosecutor for CBI, what could

be perceived by this Court is that the petitioner while

dealing with the subject matter has not taken care to

meticulously peruse the earlier correspondence and the

things transpired, and the petitioner thus was not diligent,

thereby paving way for issuance of the alleged G.Os.

However, as earlier indicated, Section 13(2) r/w 13(1)(d) of

the Prevention of Corruption Act, 1988, does not attract.

Same is the case with Section 120-B r/w 409 IPC. In none

of the charge sheets, it is indicated that the petitioner at

any time either directly or indirectly agreed with any of the

accused to do or cause to be done any illegal act or an act

which is not legal by illegal means. No such agreement or

meeting of minds is found in the charge sheets. Therefore,

this Court holds that the impugned order is bereft of valid

reasons and hence, the same is liable to be set aside.

47. Resultantly, this Criminal Revision Case is allowed.

The order that is rendered by the Court of Principal Special 39 Dr.CSL, J Crl.R.C.No.693 of 2022

Judge for C.B.I. Cases, Hyderabad in Crl.M.P.No.47 of

2021 in C.C.No.1 of 2012, dated 17.10.2022, is hereby set

aside. There are no grounds for framing the charges

against the petitioner for the offences punishable under

Section 120-B r/w 409 IPC and Section 13(2) r/w 13(1)(d)

of the Prevention of Corruption Act, 1988. Therefore, the

petitioner shall be discharged of the said offences.

48. However, the trial Court to verify whether any other

provisions of law attracts. In case charge(s) can be framed

for any other offence(s), charge(s) to that effect may be

framed and the trial proceedings may go on. Baring that,

this order becomes final.

49. As a sequel, miscellaneous applications, if any,

pending, shall stand closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

08.11.2022 dr